Braddock v The Queen
[2021] VSCA 201
•20 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0176
| BRETT STEWART BRADDOCK | Appellant |
| v | |
| THE QUEEN | Respondent |
----
| JUDGE: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 July 2021 |
| DATE OF JUDGMENT: | 20 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 201 |
| JUDGMENT APPEALED FROM: | DPP v Braddock [2020] VCC 1186 (Judge Riddell) |
---
CRIMINAL LAW — Appeal — Sentence — Aggravated rape and burglary — Offending in 1990 — Appellant detected through ‘cold case’ examination of DNA sample from crime scene — Appellant sentenced to 12 years and 2 months’ imprisonment with 9 years’ non-parole — Whether judge erred in sentencing appellant as serious sexual offender — Whether sentence manifestly excessive — Sentence within range — Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Ms S E Lacy | Adrian Paull Criminal Lawyers |
| For the Respondent: | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
In the early hours of Sunday, 22 July 1990, ‘CM’, a single mother then aged 38 years, was asleep in the bedroom of her home in Wendouree West, when the appellant and a still unidentified male co-offender broke into her home and subjected her to a horrifying attack, during which each assailant raped her.
The appellant’s role in the despicable attack was not discovered until a ‘cold case’ examination of a seminal stain located on one of CM’s bedsheets rendered a DNA profile that matched the appellant’s. As a result, he was arrested on 2 April 2019 and subsequently charged.
An indictment later filed in the County Court charged the appellant with burglary[1] (one charge – charge 1) and aggravated rape[2] (two charges – charges 2 and 3).
[1]Crimes Act 1958, s 76. The maximum penalty at the relevant time was 14 years’ imprisonment.
[2]Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1980), s 45(3). The maximum penalty was 20 years’ imprisonment.
The appellant pleaded guilty upon arraignment, and, following a plea conducted on 6 July 2020, was sentenced on 5 August 2020 to a total effective sentence of 12 years and two months’ imprisonment, with a non-parole period of nine years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Burglary 6 years 4 months 2 Aggravated rape (rolled-up charge) 8 years 10 months 22 months 3 Aggravated rape 10 years Base Total Effective Sentence 12 years and 2 months’ imprisonment Non-Parole Period 9 years’ imprisonment Pre-Sentence Detention 76 days Section 6AAA Statement 16 years and 6 months’ imprisonment, with a non-parole period of 13 years and 3 months
Pursuant to leave to appeal granted by a judge of this Court, the appellant now challenges the sentence on five grounds:[3]
1 The individual sentence on count 1, 2 and 3, the orders for cumulation on counts 1 and 2, the total effective sentence and non-parole period are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the [appellant].
4 The Learned Sentencing Judge erred in sentencing the [appellant] on count 3 after finding that the provisions of ss 6A to 6E Sentencing Act 1991 applied in respect of the sentence to be imposed on the count 3.
5 The learned sentencing judge erred in cumulating the sentences on counts 1, 2 and 3.
[3]At the outset of the hearing in this Court, counsel for the appellant — who was not counsel who drew the written case — abandoned two grounds. Given that the abandoned grounds were wholly without merit, that was a proper course to adopt. The grounds had contended that the sentencing judge erred:
2 … in sentencing the [appellant] on the basis of threats and comments made by the co-offender where the [appellant] was not charged with any offences relating to those threats. It was not open to find that the [appellant] was party to making those comments and threats (reasons paragraphs 35 and 39).
3 … in using the [appellant’s] lack of memory as a basis for making an adverse finding against the [appellant] that the plea of guilty is not a sign of any remorse (sentencing reasons paragraphs 51 and 84).
In my opinion, none of the grounds has substance. I would dismiss the appeal. My reasons follow.
The offending
To understand the issues in the appeal, it is necessary to describe the appellant’s offending in more detail.
At the time of the attack upon her, CM was living in a rented four bedroom house with her five daughters — aged between six and 15 years — her husband having died four years previously.
The appellant, then aged 26, lived next door with his partner, two pre-school aged children and a male boarder.
CM, her daughters and a daughter’s friend, had spent the evening prior to the attack watching a movie. CM went to bed at about 12.35 am.
A few hours later, between 4.00 and 5.00 am on 22 July 1990, the appellant and another man broke into CM’s house. They each took turns raping her while the other covered her mouth and held her down. Threats were made to kill her daughters to stop her struggling and to dissuade her from reporting what had occurred.
The appellant and his co-offender were both disguised when they broke in, wearing face masks and woollen gloves. They entered CM’s house with the intention of committing a sexual offence (charge 1 — burglary).
At the time of the break-in, CM was asleep in the master bedroom, wearing a nightie and underpants. She woke when either the appellant or his co-offender put a hand over her face, and asked, ‘Who are you?’. The co-offender replied: ‘I’m a secret admirer. Take down your pants’. Both men then ripped her pants off her. CM asked, ‘What about my kids?’. That question provoked a chilling response from the co-offender: ‘If you don’t do as you’re told, I’ll kill them’.
The co-offender then pushed CM’s legs apart with his knees and penetrated her vagina with his penis. She described the penetration as forceful and painful. Whilst the co-offender was vaginally raping her, the appellant covered her mouth with his hand (part of charge 2 – aggravated rape).
Whilst this was occurring, the appellant told CM to touch his penis, pulling her hand towards his genitals, but her hand dropped without making contact.
After vaginally penetrating CM for a short period, the co-offender told the appellant to roll her over. He did so. As CM was face down on the bed, the co-offender forced his penis into her anus, causing her severe pain (also part of rolled-up charge 2 – aggravated rape). The appellant restrained her by holding her right arm down. As he anally penetrated her, the co-offender said to CM, ‘I know you’ve got a 16-year-old daughter’. One of the men also put a hand on CM’s right breast.
At some point, the appellant heard a noise and went to investigate, telling the co-offender to cover CM’s mouth. He left the bedroom whilst his co-offender held his hand over CM’s face. I pause to note that, at this point, the appellant could have withdrawn from the criminal enterprise, but did not.
Upon the appellant’s return, both men rolled CM onto her back. The appellant pushed her legs apart and inserted his penis into her vagina while his co-offender kept his hand over her mouth (charge 3 – aggravated rape).
Before leaving the bedroom, the appellant’s co-offender said to CM: ‘Lie still, don’t tell anybody or I’ll kill the kids’. Both men then left the house through the kitchen door.
Although CM was reluctant to involve police, a neighbour who became aware of the attack duly reported it. Police came and spoke to CM. They observed her to be tearful and shaking. She was very frightened and feared that the threats to her children would be carried out.
Detectives seized CM’s nightgown and bed sheets for forensic examination. Forensic scientists at the State Forensic Science Laboratory found seminal stains on CM’s nightgown and a fitted sheet, and spermatozoa were located on a cervical swab taken from CM during a medical examination. Fortuitously, a sample of the seminal stain on the fitted sheet was retained by the State Forensic Science Laboratory.
Some years later, in 2012, the Victoria Police Forensic Services Department carried out further testing of the sample from the sheet. A male DNA profile was extracted and entered on to the National Criminal Investigation DNA Database, but no match was found at that time. Between 2018 and 2019, however, a review of the case was conducted by the Sexual Crimes Squad Cold Case Unit, and the appellant was identified as a person of interest.
Police approached the appellant on 25 January 2019, and he agreed to provide a DNA sample. That sample linked the appellant to the seminal stain on CM’s fitted bedsheet. It was 100 billion times more likely that the appellant was a contributor to the DNA than another person drawn at random from the Australian population.
As a result, the appellant was arrested on 2 April 2019 and interviewed. He told police that he recalled various things about living in a house in Wendouree West in 1990 with his de-facto partner and his two young children. He said that he recalled police knocking on his door and asking if he or his partner had heard anything during the night, and that he had found out that a female had been raped next door. The appellant denied, however, going to CM’s premises and any involvement in raping her. He could not explain his semen being located at the crime scene.
Ground 4: Error as to serious sexual offender status
Turning to the grounds, ground 4 contends that the judge erred in having regard to the serious sexual offender provisions in Part 2A of the Sentencing Act 1991 (‘the Act’). It arises in the following circumstances.
When giving her reasons for sentence orally, the judge announced that the appellant was to be sentenced as a serious sexual offender on charge 3. That was an error.[4] The error was, however, picked-up immediately by the prosecutor, and promptly corrected by the judge, who said:
Okay. Well, let me amend that. Obviously I will delete that direction to note that in the record and I will also need to revise one paragraph where I referred to it.
Counsel will be conscious that, as I said in that paragraph, although at that point my understanding was that Charge 3 was a sentence as a serious sex offender, I did not propose to impose a disproportionate sentence on that charge in any event.
[4]By s 6B(1) of the Act, a ‘serious sexual offender’ is an offender ‘who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment’. In the present case there were only two sexual offences of which the appellant was convicted, charges 2 and 3, the other charge being burglary.
In the event, the reference to the appellant being declared to be a serious sexual offender does not appear in the judge’s revised sentencing reasons. Counsel submitted nonetheless that the judge must have been influenced by the provisions of Part 2A of the Act when formulating the sentences to be imposed.
This ground cannot be upheld.
In my view, there is no reason not to accept the judge’s statement that she did not intend to impose a disproportionate sentence.[5]
[5]Section 6D of the Act relevantly provides:
6D Factors relevant to length of prison sentence
If … the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
Moreover, there is nothing in the individual sentence on charge 3, or the orders for cumulation, that would lead to the inference that the judge’s sentencing discretion was materially influenced by her initial error as to the application of the serious sexual offender provisions of the Act. It must be remembered in that regard that protection of the community usually (if not always) remains an important sentencing purpose in a case such as the present,[6] even if it is not ‘the principal purpose for which the sentence is imposed’.[7]
[6]Section 5(1)(d) of the Act.
[7]Section 6D(a) of the Act.
Finally, I note that the judge appeared to be sanguine as to the appellant’s prospects of rehabilitation. She observed that the appellant’s ‘prospects of full rehabilitation must be good given the time frame since this offending’; and she agreed with the opinion of psychologist, Simon Candlish, who assessed the appellant as presenting a ‘low risk of any sexual reoffending’.
Grounds 1 and 5: Manifest excess and asserted errors as to cumulation
Ground 1 and 5 may conveniently be considered together.
Counsel for the appellant submitted that the individual sentences; the degree of cumulation ordered between sentences; the total effective sentence; and the non-parole period; are all manifestly excessive. Various ‘particulars’ subjoined to the first ground contended that a number of mitigating factors either were not taken into account or were given inadequate weight, including:
(i) The plea of guilty.
(ii) Good character prior to the offending.
(iii) Good character since the offending.
(iv) The [appellant’s] successful rehabilitation.
(v) The availability of family support for the [appellant].
(vi) The [appellant’s] ill-health.
(vii)The [appellant’s] youthfulness at the time of the offending.
Turning next to the submissions made in support of these grounds, it might be acknowledged that the appellant has but one (somewhat irrelevant) prior conviction for animal cruelty in 1985. And although he would not readily have attracted the principles relevant to the sentencing of youthful offenders had he been sentenced closer to the time of the offending — he was then aged 26 years — he appears to have been of relative good character both prior, and subsequent, to the commission of the instant offences. Indeed, it seems that in the 30 years since the commission of the offences the appellant had overcome problems with drugs and alcohol that afflicted him at that time, and he has a stable relationship with his current wife and their three daughters. Further, at age 57,[8] the appellant’s health is significantly compromised, in that he suffers from ‘type 2’ diabetes; chronic lung disease; heart and circulation problems; and chronic back pain arising from a motorcycle accident some 20 years ago. He has also been prescribed antidepressant medication. Finally, the appellant pleaded guilty, the judge recognising that the plea had utilitarian benefit, and saved CM ‘the additional trauma of having to re-live these events some 30 years on’. The judge also took into account ‘the value of a plea of guilty in the current environment where the COVID-19 pandemic has caused considerable delay of all trials’.
[8]His date of birth is 7 December 1963.
Although ground 1 asserts a failure to take into account, or to give adequate weight to, the mitigating features referred to, a conclusion that a sentence is manifestly excessive does not depend on identified (or identifiable) discrete error. The proper approach of an appellate court to a claim that a sentence is manifestly excessive was discussed in Leimonitis:[9]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[10] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[11] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[12] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[13]
[9]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).
[10]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[11]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[12]Ibid.
[13] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Synthesising for myself all relevant features bearing on the exercise of the sentence discretion — those going in aggravation and in mitigation, and the circumstances of the appellant and the offence — I am not persuaded that the individual sentences, the total effective sentence produced by the orders for
cumulation, or the non-parole period, are wholly outside the range of those open in the sound exercise of the sentencing discretion.
The appellant’s was, as I have said, a horrifying crime. It was premeditated and disturbingly callous. I am unable to see that the sentence imposed can properly be characterised as disproportionate to its gravity.
Conclusion
The appeal must be dismissed.
NIALL JA:
I agree.
----
0
0