Brooks (a pseudonym) v The King - [2023] VSCA 4

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…

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 Brooks (a pseudonym) v The King

Details

AGLC: Brooks (a pseudonym) v The King [2023] VSCA 4
Case: [2023] VSCA 4
Decision Date: 3 February 2023

CaseChat Overview and Summary

Brooks, known under a pseudonym, was the appellant in a criminal appeal against the Queen, with the case being heard in the High Court of Australia. The appellant challenged the sentence imposed on him for offences of indecent assault upon a female and carnal knowledge of a girl between the ages of 10 and 16. These offences were historical, involving the appellant’s niece, and he sought to appeal the sentence on the basis that the sentencing judge did not adequately consider his ill health, the impact of the COVID-19 pandemic, and certain factors outlined in the case of Verdins.

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.

Orders