Bromley v the Queen

[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.…