Braddock v The Queen - [2021] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0176

BRETT STEWART BRADDOCK	Appellant
v
THE QUEEN	Respondent

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Braddock v The Queen

Details

AGLC: Braddock v The Queen [2021] VSCA 201
Case: [2021] VSCA 201
Decision Date: 20 July 2021

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Braddock, against a decision of the lower court that sentenced him to 12 years and 2 months’ imprisonment for aggravated rape and burglary, with a non-parole period of 9 years. The crimes had been committed in 1990, and the appellant was only detected due to a 'cold case' examination of DNA samples from the crime scene. The appellant argued that the sentence imposed was manifestly excessive and that the trial judge had erred in sentencing him as a serious sexual offender.

The legal issues for the court to decide were whether the trial judge erred in characterising the appellant as a serious sexual offender and whether the sentence was manifestly excessive. The court was required to consider the principles of sentencing for aggravated rape and burglary and whether the sentence imposed fell within the range of sentences for such offences. The court also needed to consider whether the sentence was disproportionate to the appellant’s culpability and the circumstances of the offence.

The court held that the trial judge had not erred in characterising the appellant as a serious sexual offender as the offences involved a high degree of premeditation, violence, and degradation of the victim. The court found that the sentence imposed was within the range of sentences for such offences and was not manifestly excessive. The court noted that the appellant had a history of violent offending and had shown no remorse for his crimes. The court also considered the need to deter the appellant and others from committing similar offences. The appeal was dismissed.

The court did not make any orders regarding the sentence. The appellant remains subject to the sentence imposed by the lower court.

Orders