Bromley v the Queen

Case [2018] VSCA 329


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0057

JOHN HAROLD BROMLEY Applicant
v
THE QUEEN Respondent

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JUDGES: KYROU and NIALL JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 16 November 2018
DATE OF JUDGMENT: 6 December 2018
MEDIUM NEUTRAL CITATION: [2018] VSCA 329
JUDGMENT APPEALED FROM: DPP v Finlay (a pseudonym) [2018] VCC 133 (Judge Higham)

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CRIMINAL LAW – Appeal – Sentence – Four charges of indecent assault upon male person – Offending took place between 1972 and 1980 – Maximum penalty then 5 years’ imprisonment – Sentenced to 7 years and 9 months’ imprisonment with non-parole period of 4 years and 9 months – Whether sentence manifestly excessive – Relevance of maximum penalty – Relevance of sentencing practices at time of offending – Appeal allowed – Resentenced to 4 years’ imprisonment with non-parole period of 2 years.

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APPEARANCES: Counsel Solicitors
For the Applicant Ms C A Boston Doogue + George
For the Respondent Ms D I Piekusis Mr J Cain, Solicitor for Public Prosecutions

KYROU JA

NIALL JA:

  1. On 9 February 2018, the applicant pleaded guilty to historical sexual offences committed between 1972 and 1980.  On 16 February 2018, he was sentenced as follows:

Charge on indictment Offence Maximum Sentence

Cumulation

1

Indecent assault upon a male person [Crimes Act 1958 s 68(3A)]

5 years

4 years

Base

2

Indecent assault upon a male person

5 years

4 years

2 years

3

Indecent assault upon a male person

5 years

2 years

12 months

4

Indecent assault upon a male person

5 years

15 months

9 months

Total Effective Sentence:

7 years and 9 months’ imprisonment

Non-Parole Period:

4 years and 9 months

Pre-Sentence Detention:

Nil

6AAA Declaration:  

10 years’ imprisonment with a non-parole period of 7 years and 3 months

Other Orders:

Mandatory reporting for life under s 34 of the Sex Offenders Registration Act 2004.

  1. The applicant seeks leave to appeal against his sentence on the single ground of manifest excess.

  1. For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant as set out in [76] below.

The offending

  1. The applicant’s offending spanned a nine-year period from 1972 to 1980 and involved four young male victims.  The applicant was aged between 31 and 40 at the time.

  1. The applicant operated a butcher shop in metropolitan Melbourne. Each of the four victims either worked with the applicant at the shop or were befriended by him.

Charge 1

  1. Charge 1 related to the victim known as ‘AB’.  AB grew up in a large family where money was scarce.  His father was violent.  AB’s mother, who was a customer of the applicant, asked whether he could take on AB in the shop.  The applicant employed AB on a casual basis as a ‘wash up boy’, working after school and on Saturday mornings.  The applicant was friendly towards AB and showed interest in him.  He bought AB food and drink and paid for haircuts and shoes.…

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Bromley v the Queen [2018] VSCA 329
Case
[2018] VSCA 329
Decision Date

CaseChat Overview and Summary

The appellant was convicted on four counts of indecent assault upon a male person, with the offending occurring between 1972 and 1980. The maximum penalty for the offences at the time was five years' imprisonment. The appellant was sentenced to 7 years and 9 months' imprisonment, with a non-parole period of 4 years and 9 months. The appellant appealed the sentence, arguing it was manifestly excessive. The central legal issues before the court were whether the sentence was manifestly excessive, considering the maximum penalty and the sentencing practices of the time. The court considered the nature and seriousness of the offences, the maximum penalty applicable at the time of the offending, and the sentencing practices in place during that period. The court concluded that the sentence was manifestly excessive, taking into account the maximum penalty and the sentencing practices at the time of the offending. The appeal was allowed, and the appellant was resentenced to 4 years' imprisonment, with a non-parole period of 2 years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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