| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0022 |
| FRANK BROOKS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | NIALL AND T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 January 2023 |
| DATE OF JUDGMENT: | 3 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 4 |
| JUDGMENT APPEALED FROM: | DPP v [Brooks] (County Court of Victoria, Judge Mullaly, 24 November 2020) |
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CRIMINAL LAW – Appeal – Sentence – Indecent assault upon a female – Carnal knowledge of a girl between 10 and 16 – Historical offences committed against niece – Whether sentencing judge failed to give adequate weight to applicant’s ill health – Whether sentencing judge failed to give adequate weight to the impact of the COVID-19 pandemic on the applicant given risk factors – Whether sentencing judge failed to give adequate weight to limbs 5 and 6 of Verdins – Whether individual sentences, total effective sentence, non-parole period and orders for cumulation manifestly excessive – Applicant’s moral culpability high – Applicant’s age and ill health not undervalued by sentencing judge – No error found in sentences or reasons – Leave to appeal refused.
R v Verdins; R v Buckley (2007) 16 VR 269; [2007] VSCA 102; Bell v The Queen (2016) 77 MVR 336; [2016] VSCA 203 and Binse v The Queen [2016] VSCA 145 referred to.
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| Counsel | |||
| Applicant: | Mr C K Wareham | ||
| Respondent: | Ms R Harper with Ms R Barrett | ||
Solicitors | |||
| Applicant: | Adrian Paull Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
T FORREST JA:
The applicant, now aged 75 years, pleaded guilty in the County Court to two charges of indecent assault and three charges of carnal knowledge of a girl aged between 10 and 16. The offending occurred between 1975 and 1978 when the complainant was aged between 12 and 15. During these years the applicant was aged between 27 and 30. The complainant was the applicant’s niece by marriage.
On 24 November 2020 the applicant was sentenced as follows:
| Charge | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Indecent Assault Upon a Female [Section 55 of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967]. | 5 years imprisonment | 1 year imprisonment | No |
| 2 | Indecent Assault Upon a Female. | 10 years imprisonment[2] | 2 years imprisonment | 6 months |
| 3 | Carnal knowledge of a girl between 10 and 16 [Section 48(1) of the Crimes Act 1958]. | 10 years imprisonment | 4 years imprisonment | 1 year |
| 4 | Carnal knowledge of a girl between 10 and 16. | 10 years imprisonment | 5 years and 6 months imprisonment | Base |
| 5 | Carnal knowledge of a girl between 10 and 16. | 10 years imprisonment | 4 years imprisonment | 1 year |
| Total Effective Sentence: | 8 years imprisonment | |||
| Non-Parole Period: | 5 years and 9 months imprisonment | |||
| Pre-sentence Detention Declared pursuant to s 18(1) of the Sentencing… | ||||
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- AGLC
- Brooks (a pseudonym) v The King [2023] VSCA 4
- Case
- [2023] VSCA 4
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the sentencing judge had failed to properly weigh these factors, leading to a sentence that was manifestly excessive. Specifically, the appellant argued that the judge did not sufficiently consider the impact of his ill health and the pandemic on his circumstances, and that these considerations should have resulted in a lesser sentence. The court was required to determine whether the individual sentences, the total effective sentence, the non-parole period, and the orders for cumulation were manifestly excessive given the circumstances.
The High Court, in dismissing the appeal, held that the sentencing judge had not failed to consider the appellant's health or the pandemic's impact on him. The court found that the appellant's moral culpability was high and that his age and ill health had not been undervalued. The sentences were deemed appropriate in light of the severity of the offences and the appellant's culpability. The court concluded that there was no manifest error in the sentences or the reasons provided by the sentencing judge. Consequently, the leave to appeal was refused, affirming the original sentence imposed.
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Background
Background to the litigation
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Evidence Before The Court
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