Director of Public Prosecutions v Braddock
[2020] VCC 1186
•5 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00289
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BRETT BRADDOCK |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2020 | |
DATE OF SENTENCE: | 5 August 2020 | |
CASE MAY BE CITED AS: | DPP v BRADDOCK | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1186 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated Rape – Cold Case – Offending in Company – Plea of Guilty – Current Sentencing Practices
Legislation Cited: Crimes Act1958 (Vic) – s.45(3) Crimes (Sexual Offences) Act 1980 (Vic) – s.46(1)(d) Crimes (Sexual Offences) Act 1980 (Vic)
Cases Referred to: DPP v Bourke [2020] VSC 130 – DPP v Dalgleish (a pseudonym) [2017] HCA 41 – DPP vDalgleish (a pseudonym) [2016] VSCA 148 – Stalio v The Queen (2012) 46 VR 426 – Hague v R [2019] VSCA 218 – Bromley v The Queen [2018] VSCA 329 – Mush v The Queen [2019] VSCA 307 – Director of Public Prosecutions v Henderson [2016] VCC 1444 – Director of Public Prosecutions v Pitt [2016] VCC 1628 – R v Lakeland (Unreported, Court of Criminal Appeal, 19 November 1993)
Sentence: Total effective sentence of 12 years 2 months imprisonment with a 9 year non- parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mrs R. Harper | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Adrian Paull Criminal Lawyers |
HER HONOUR:
The Offender
1 In July 1990 38 year old Alison Morgan[1] was a single mother who lived with her five daughters in Ballarat.[2] Mrs Morgan’s husband had died four years earlier. Her five daughters ranged in age from six years old to 15 years. They resided in a four bedroom house in a suburb of Ballarat.
[1] Pseudonym used
[2] Pseudonym used
2 You, Brett Braddock, lived next door with your partner and two pre-school aged children as well as a male who boarded with you. You were 26 years old. You were not a friend or acquaintance of Mrs Morgan or her family, though your houses were close enough together that you could see from one into the other.
3 In the middle of the night on 22 July 1990 you and another man broke into Mrs Morgan’s house. You both took turns raping her while the other covered her mouth and held her down. Threats were made to kill her daughters to stop her struggling and to dissuade her from telling anyone what had occurred.
4 This is, as the learned prosecutor stated, every woman’s worst nightmare. No matter how long ago, it is offending which horrifies and shocks the community. It offends our sense of safety and the sanctity of our homes. It is an assault on bodily integrity. It is behaviour which deserves condemnation and condign punishment.
Circumstances of the offending
5 Mrs Morgan and her daughters, along with one of her daughter’s friends had spent their evening watching a movie. Mrs Morgan went to bed around 12:35am unaware of what was to happen.
6 You and your co-offender were both disguised when you went to her house that night, both wearing face masks and you wore woollen gloves. At around 4-5am, you entered Mrs Morgan’s house with the purpose of committing a sexual offence against her. That is the basis of Charge 1 Burglary.
7 While Mrs Morgan slept in the master bedroom, wearing a nightie and underpants, one of you woke her by putting a hand over her face. She asked, "Who are you?" to which your co-offender replied "I'm a secret admirer. Take down your pants." You both ripped her pants off her. She said, "What about me kids?" to which your co-offender replied, "If you don't do as you're told, I'll kill them."
8 The co-offender then pushed the victim's legs apart with his knees and inserted his penis into her vagina. She described that penetration as forceful and painful. Whilst he was vaginally penetrating her, you covered her mouth with your hand. Those events are part of Charge 2 – Aggravated Rape.
9 While this was occurring you told the victim to touch your penis, pulling her hand towards your genitals. Her hand dropped without making contact.
10 After vaginally penetrating the victim for a short time, the co-offender told you to roll her over.
11 You grabbed Mrs Morgan by her arms and legs and rolled her over so that she was face down on the bed. The co-offender moved on top of her and forced his penis into her anus, causing her severe pain. Those events go towards Charge 2 – Aggravated Rape.
12 Whilst anally penetrating Mrs Morgan, your co-offender said to her, "I know you've got a 16-year-old daughter". Meanwhile you restrained her by holding her right arm down, out to the side of her body whilst your co-offender anally penetrated her.
13 One of you put a hand on the victim's right breast.
14 At that point you heard a noise. Not perturbed, you told your co-offender to cover Mrs Morgan’s mouth while you went to investigate. You left the bedroom whilst your co-offender held his hand over the victim's face.
15 You soon returned to the bedroom where both of you men then rolled Mrs Morgan onto her back. You pushed her legs apart with your hands. The victim felt you were wearing woollen gloves. You then inserted your penis into the victim's vagina while your co-offender kept his hand over her mouth. That is the basis of Charge 3 – Aggravated Rape.
16 Before leaving Mrs Morgan’s bedroom, your co-offender said to her "Lie still, don't tell anybody or I'll kill the kids".
17 You both then left the house through the kitchen door. The victim did not hear any cars in the street at any time.
18 Shortly after hearing you leave her home, Mrs Morgan went to her daughter Katherine's[3] bedroom and woke her up to tell her that she had been held down by two men who raped and threatened her. Katherine was 15. Mrs Morgan was very upset and shaking as she spoke to her teenage daughter.
[3] Pseudonym used
19 She then called her mother and told her what had happened, however she did not want to call the police. That was an act of maternal self-sacrifice, so grave were her fears that you and your co-offender would carry out your threats towards her children.
20 On the advice of her mother, Mrs Morgan sent her daughter to speak with a neighbour Vanessa Peck,[4] who sensibly took matters into her own hands and notified police. She then came to talk to Mrs Morgan, and observed her to be teary and shaking.
[4] Pseudonym used
21 Police attended and spoke to Mrs Morgan and her daughter Katherine. They observed that Mrs Morgan was very frightened and fearing you and your co-offender would carry out your threats toward her children.
Medical Examination
22 Mrs Morgan was taken by police to Ballarat Base Hospital where she was seen at the Rape Crisis Centre by the on-call Obstetrician and Gynaecologist, Dr. Philip Hall. Dr. Hall examined the victim and reported the following:
(a) During examination of her head and neck - a petechial rash on the upper outer aspect of her right shoulder as well as bruising on her upper right arm;
(b) During examination of her vagina - perineal and labial redness was observed and the skin appeared to be abraded or grazed. There was bloodied discharge on her vulva;
(c) During examination of her anus Dr Hall observed stellate skin splitting and blood staining.
23 A sample of Mrs Morgan’s blood and a number of swabs, including a cervical swab, were taken by Dr. Hall during the examination.
Initial Forensic Examination of Exhibits
24 The crime scene was processed by detectives from the Ballarat Crime Investigation Unit. Mrs Morgan’s nightgown and bed sheets were collected for forensic analysis. Together with the medical examination exhibits, the sheets were later forensically examined at the State Forensic Science Laboratory. Seminal stains were found on Mrs Morgan’s nightgown and the fitted sheet, as well as spermatozoa on the cervical swab taken by Dr Hall.
25 A sample of the seminal stain on the that fitted sheet was retained by the State Forensic Science Laboratory for DNA profiling by the Molecular Biology Section.
26 Initially there were no DNA profiles which matched those items and the case remained unsolved for many years.
27 In 2012 the Biological Examinations Branch of the Victoria Police Forensic Services Department carried out further testing in relation to the sample obtained from Mrs Morgan's fitted sheet. A male DNA profile was extracted and entered on to the National Criminal Investigation DNA Database but at that stage it did not match to any person or profile.
28 Between 2018 and 2019 a review of this matter was conducted by the Sexual Crimes Squad Cold Case Unit. That review identified you as a person of interest largely due to your proximity to the victim’s address.
29 On 25 January 2019, you were approached and agreed to provide a voluntary DNA sample. That sample linked you to the seminal material on Mrs Morgan’s fitted sheet. It demonstrated you were 100 billion times more likely than the rest of the population to have been the contributing source for that DNA detected in the seminal sample.
Arrest and Interview
30 On 2 April 2019, you were arrested at your home address and conveyed to Swan Hill Police Station for an interview. You recalled various details about living in a Commission house in the Ballarat suburb in 1990 with your de-facto partner and your two young children. You recalled police knocking on your door and asking if you or your partner had heard anything during the night. You stated you later found out a female had been raped next door. However, you denied ever going to Mrs Morgan’s premises, ever knowing her, and you denied any involvement in any rape whatsoever. You could not offer any explanation for your semen being located at the crime scene.
31 On your plea, you now accept you were the ‘second male’ as described by
Mrs Morgan in her initial statement.
Sentencing Principles
32 Denunciation, just punishment and general deterrence must be at the forefront of sentencing considerations in a matter such as this. That is, I must impose a sentence which expresses the Court and the community’s abhorrence at this offending. It should deter others from so acting and it must justly punish you. Community protection also has a part to play despite the passage of time.
33 In assessing the objective gravity of this particular offending I am of the view that this is a serious example of a serious offence. Similarly, your moral culpability is high. In making that assessment I particularly take into account the following features of these events.
34 This offending was premeditated and planned. To what extent I cannot conclude, however you and your co-offender must have had some discussion. You were both disguised with masks and you had gloves on. That demonstrates some level of preparation.
35 It was predatory and your target was vulnerable, living as the lone adult in her household. Comments made during the offending demonstrate you and your co-offender had knowledge of the existence of her daughters within the house.
36 The offending was committed in company. That is a fact which tends to heighten feelings of powerlessness and helplessness for a victim. You took turns to penetrate her and to hold her down. That is particularly egregious. It showed your complete disregard for the victim, for her bodily integrity and her personal dignity.
37 Your act of penetration came after you had watched your co-offender penetrate her, and had assisted him in rolling her over. You were interrupted by a noise. That was an opportunity for you to come to your senses and leave. But instead, and despite her earlier suffering at the hands of your co-offender, you returned and committed another rape on Mrs Morgan. That was committed at a time when she must have hoped the ordeal was over.
38 This was penile penetration of her vagina and her anus. Fortunately it did not last long, though it must have felt like an eternity to Mrs Morgan.
39 Threats and comments made to Mrs Morgan about her daughters during those events are particularly disturbing, in particular the chilling reference to her 16 year old daughter. The fear created in her is demonstrated by her initial reluctance to call the police – despite what she had just endured. That is the instinct of a terrified, protective mother at its height.
40 You committed these offences in her home, a place where she was entitled to feel safe. It had been her home for some years. She lived there with her husband until he died from illness. It must have been an important anchor for her and her children after that time. As a direct result of your actions, Mrs Morgan and her daughters were uprooted from their lives in that home. They were forced to crisis accommodation for some months because of your threats and her fear you would return. They were then forced to relocate permanently. Those facts amply demonstrate the way in which offending such as this can have lasting, practical impact on the direct victim and on those around them. Similarly, her neighbour reported in her statement that her own daughters would not sleep alone at night.
41 The ongoing impact on Alison Morgan cannot be quantified. Her victim impact statement speaks volumes in its brevity. She says simply that she was never able to sleep in a double bed again, and that she blocked this out until you were arrested. No doubt she did that to continue her role as mother to her daughters. When spoken to by police in 2019 after you were apprehended, she describes the relocation of her family. She stated, “The incident had an awful impact on all of our lives. The counsellors who I saw couldn’t help me, but eventually a doctor helped me to talk about it. Over time I just focused on my family and didn’t think about it.”
42 I take into account the impact on Mrs Morgan of these events.
43 I also take into account the shock and fear which must have been experienced by her young daughter, woken in the middle of the night by her distressed mother.
44 Courts and the community now much better understand the devastating consequences on victims of sexual offences. They much better understand the lasting impact of such an intrusion and violation into home and body. That must be reflected in sentencing.
45 Mrs Morgan not only suffered the psychological and emotional impact of your offending, but also physical injuries to both her vagina and anus, as well as abrasions around her shoulder, as found in Dr. Hall’s examination of her. They are consistent with what Mrs Morgan described as forceful and repeated penetrations.
46 In assessing other matters which feed into my considerations of the appropriate sentence, I take into account the following:
Plea of Guilty
47 By your plea of guilty you admit your offences against Mrs Morgan. That is significant for a number of reasons. Firstly, you have saved her the additional trauma of having to re-live these events some 30 years on. You have not sought to challenge her memory or reliability. Similarly, you have saved her daughter and other witnesses from giving evidence. In matters such as this those factors are particularly important. I take those matters into account.
48 Secondly, your plea of guilty has a utilitarian benefit. It saves the court and the community the time and expense of running a jury trial. I take that into account. In particular where matters are dated, and where there is almost singular reliance on DNA evidence, there is sometimes a temptation for an accused to run a trial. You are entitled to the benefit of not having taken such a course.
49 Thirdly, I take into account the comments of Her Honour Justice Dixon in DPP v Bourke[5] in considering the value of a plea of guilty in the current environment where the Covid-19 pandemic has caused considerable delay of all trials.
[5]DPP v Bourke [2020] VSC 130
50 You receive the full benefit of your plea of guilty for those reasons.
51 Although your plea is a significant acknowledgement of responsibility for these offences, I cannot however view it as a sign of any remorse. That is so because you claim to have no memory of these events.
Cold Case Investigation
52 These events have been brought home to you thanks to the investigative work of Victoria Police, in particular Detective Senior Constable Paul Jolly who examined the crime scene and took samples and exhibits and was the original investigator, and more recently Detective Senior Constable Phillip Drews and the Sexual Crime Squad Cold Case Unit who re-opened this case. They did not rest or abandon this case despite its age. They did not give up. They renewed their search to identify and apprehend the offenders in 2018, some 28 years after these events. Good investigative work took them to you in large part because of your geographic connection to Mrs Morgan’s home. Credit also must be given to Dr Hall for the careful taking of samples, and for the Police forensic scientists who conducted analysis and extracted DNA.
Personal Circumstances
53 Turning to your personal circumstances. They are outlined in a detailed psychological report authored by experienced Consultant Psychologist, Mr Simon Candlish.
54 In short, the events I have just described lie in stark contrast to the rest of your life. You have committed no other offence of this kind since these offences or indeed before it. The reference material provided on your behalf speaks of a loving family man, a great friend and brother in law, a supportive family member. To say the uncovering of these offences has shocked those close to you would be an understatement.
55 Looking at your history you were the sole survivor of twins. You grew up as the second youngest in a sibship of four. Your father was hard working, though often working away from home, in order to save for a family home. You lacked time with him, spending time with relatives at weekends.
56 Your mother was occupied doing home duties. She suffered post-natal depression. Both parents were strict and physically disciplined you, though you describe no prolonged tensions or difficulties in your family of origin. Your mother died at age 50 with Alzheimer’s Disease.
57 You attended school to Year 9 level but left to obtain employment. You struggled academically and have only basic reading skills and problems with spelling. You also suffered at the hands of a bully until Year 9 when you punched him. You didn’t enjoy school as a result of those factors.
58 When you were 15 you moved out of home to live with an Aunt who was closer to your place of work. You had obtained an apprenticeship as a bootmaker and completed three years of that qualification. However with the decline of that industry you shortly became unemployed.
59 You have only had relatively short terms of employment since that time. You have worked as a tyre fitter and have installed power pole insulators.
60 You have had two long-term relationships. You met your first wife in about 1980 when you were 16 or 17. Together you have three sons. Together you lived on a hobby farm and had positive relationships with your parents and in-laws and your children. At one stage you established a piggery business. You took pride in your role as a provider and protector.
61 There were periods of financial difficulty however which saw you evicted from your home and being homeless as a family.
62 The break-up of your marriage in 2001 when you were 38, however, came as a shock to you. You literally woke up to an empty house. You were suspicious that your wife had had extra marital sexual activity with the man who boarded at your house.
63 You wanted to end your life at that time and you took an overdose of Valium. You were angry that your sister intervened and you were admitted for psychiatric care. You remained an inpatient for two weeks, after which you say you withdrew from those around you.
64 Your separation was acrimonious. You were limited to fortnightly supervised visits with your nine year old son at McDonald’s. You eventually won full custody of that child. Unfortunately your relationships with your sons have now broken down.
65 You had started using cannabis and drinking alcohol as a teenager. Your consumption of alcohol increased through the course of your 20s and 30s and your first marriage, to the point you developed a dependency on it. After separation that use increased again.
66 At the time of the commission of these offences you report that your alcohol and cannabis use was very heavy.
67 You met your current partner in about 2003 and together you have three daughters. Their ages are 17, 15 and six. You and she married in 2008. You have a strong, affectionate relationship. She remains supportive of you despite the discovery of these offences. She has been in attendance throughout these proceedings. At your plea she was accompanied by her father and by your father.
68 Your wife’s father wrote a character reference for you. He has known you for 18 years. Your wife has a nephew who is seriously disabled and was living with her parents. According to your father in law, you and your wife ‘saved their sanity’ many times by caring for her nephew and offering respite for her parents. That young man is now 20 and still seeks you out for advice. Your father in law describes you as a having a loving relationship with his daughter.
69 He writes – “To say we were shocked to hear he had been charged with something that happened years ago has shocked us to the core and does not reflect the loving family man that we have come to know.”
70 He is right to observe that you have cooperated in every way with the authorities since they approached you for a DNA sample in 2018.
71 He says, “Our entire family cares very deeply for Brett and will continue to support him.”
72 Your sister in law writes in similar terms. She too has known you for close to two decades. She says you are a great friend and brother in law. She says you have always had close contact with her, and describes occasions where she has had serious life difficulties. At those times she has been able to lean on you for support, including an occasion when you drove to New South Wales to bring her home to her family when she needed help.
73 On reading that material, it is little wonder that your wife and extended family are shocked by this offending. It is not the man they know or have known for many years. It is in stark contrast to the rest of your life. It is another demonstration of what these courts so often witness to be the complexity of human behaviour.
74 I note you have one prior matter for animal cruelty where you were fined. That related to neglect of a family pet left behind when you went away, and for completeness I was told you have a subsequent matter of handle stolen goods relating to a bottle of rum.
Time in Custody
75 Separation from your family by way of imprisonment, in particular your wife and young daughters will be difficult. You are conscious of the shame you bring to them, despite the fact they were not part of your life when you committed these offences. You are conscious of the fact that your wife will be left to deal with the fallout of any publicity, to deal with the sadness of your daughters, and to deal with her own separation from you. You are conscious that those things may be particularly difficult living in a small country town. Those matters do not meet the high hurdle of extreme hardship, but nonetheless they will make life in custody more difficult for you and I take them into account.
76 I also take into account the fact that you have entered incarceration at the time of the Covid-19 pandemic. You have undergone 14 day isolation on your remand after your plea. You were previously remanded for 46 days before being granted bail. That was your first time ever in custody and was difficult. Your return to custody during COVID has been no less so.
77 You are not currently permitted any visitors. Programs are suspended and medical and other support is generally occurring by remote contact. There are lockdowns occurring and the virus has now reached prisons. As with the broader community, prisons are places of heightened anxiety in the COVID-19 setting. Prisoners however, are unable to make autonomous choices about social contact and distancing. How long restrictions in the broader community, let alone in the prison system, will remain is unknown.
78 I take into account that those are matters which make time in custody more onerous.
Health issues
79 I also take into account in relation to you that you are a man with pre-existing health issues. Your mental health is as I have described. You are now on antidepressant medication.
80 Your physical health is seriously compromised. You suffer Type II diabetes, chronic lung disease and heart/circulation problems. Those matters make you susceptible in general to ongoing health difficulties for which you are likely to require lifelong treatment. They make you particularly susceptible to catching the COVID-19 virus and for it to have serious consequences for you.
81 You also suffer from significant backpain arising from a motorbike accident which occurred some years ago. I was told that you spend much of your time lying down. That pain is now chronic and your condition is likely to deteriorate with age. When you were initially remanded for 46 days, you found that period particularly difficult for your back pain. You were not adequately medicated despite having a pre-existing prescription.
82 I take those physical illnesses into account. I take into account that your health in general may deteriorate as you age and that your time in custody as that process takes effect is likely to be difficult. You are however 57, and not 77, and I expect will have time in the community again after your non parole period.
Assessment of Risk of Sexual Reoffending and Prospects of Rehabilitation
83 You were assessed by Simon Candlish against a number of known assessment tools regarding risk of sexual reoffending. Although he notes your reported lack of memory of these events, he opines that you have problems with extreme minimisation or denial of your sexual offending. He says you display some attitudes which condone sexual offending. You lack awareness and you have trouble coping with stress. He notes your past history of attempting suicide and your psychiatric admission. He says those are pointers to mental illness and that there may be future risks of suicide. He notes your older age and lack of any relevant subsequent offending. Ultimately, he concludes you are Low risk of any sexual reoffending.
84 I agree with and accept his assessment. The only rider to describing you as Low risk, is that you have not or cannot offer any explanation for this offending given your stated lack of memory. That is of some concern. You will be subject to Sex Offender treatment in custody which will hopefully help you to fully explore those issues.
85 I accept however that your prospects of full rehabilitation must be good given the time frame since this offending.
Delay
86 You have of course had the benefit of that delay since these offences. Delay is relevant to my considerations in a number of ways.
87 Firstly, you have apparently reformed from drugs and alcohol. You have engaged in relationships and now have a strong bond with your wife and daughters. You have not reoffended in any way. To that end, you are reformed.
88 The delay has come about as a result of the fact you were not identified at the time of the offending. That has occasioned advantage to you. You have been able to live the better years of your life in the community.
89 On the other hand that delay has meant this matter has taken 30 years to resolve for Mrs Morgan and her family.
Legislation and Case Law
90 Your Counsel sensibly conceded that this offending can only be met by a term of imprisonment.
91 The maximum penalty for Charge 1 of Burglary was 14 years imprisonment.
92 Charges 2 and 3 are offences of Aggravated Rape as that offence existed under the Crimes Act 1958 in 1990. Specifically, here the aggravation is in the fact that the offending occurred in company. That is so pursuant to s.46(1)(d) of the Crimes Act as it was.
93 The maximum penalty for Aggravated Rape was 20 years imprisonment in 1990[6]. The maximum penalty for Rape has now increased to 25 years, however it is the maximum applicable at the time of the offending which is relevant. I take into account that maximum penalty of 20 years' imprisonment.
[6]Crimes Act1958 s.45(3) (at the time of offending, pursuant to Crimes (Sexual Offences) Act 1980)
94 As far as they can be ascertained, in general, sentences for offending such as this tended to be lower at the time of your offending. I take those matters into account.
95 However, in sentencing you I must also take into account current sentencing practices.[7] Those are the practices currently applied rather than those at the time of your offending. Those tend to result in longer sentences. That is so because both the Courts and the community much better understand the significant and often lasting impact of serious sexual offending such as this on a victim. That must be reflected in my sentence.[8]
[7] DPP v Dalgleish (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428; (2017) 91 ALJR 1063; (2017) 349 ALR 37; DPP vDalgliesh (a pseudonym) [2016] VSCA 148; Stalio v The Queen (2012) 46 VR 426; Hague v R [2019] VSCA 218
[8] Bromley v The Queen [2018] VSCA 329
96 I have had regard to a number of cases including those offered by counsel[9]. Each of course has differences and similarities and to that extent they are only of some limited assistance.
[9] Mush v The Queen [2019] VSCA 307, Director of Public Prosecutions v Henderson [2016] VCC 1444, Director of Public Prosecutions v Pitt [2016] VCC 1628, R v Lakeland (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Phillips CJ, Marks and Hampel JJ, 19 November 1993)
97 I take into account submissions by your counsel as to cumulation and concurrency as between the two charges of Aggravated Rape. While there need only be modest accumulation on the burglary charge,[10] in my view there must be cumulation between the aggravated rapes. They are not ‘simply’ different acts of penetration committed by an offender during the course of a series of offences. The act constituting Charge 3 occurs after a temporal break in proceedings, where you had been interrupted. It was committed after you had observed your co-offender penetrate the victim twice. They are distinct and separate acts which warrant a degree of cumulation beyond that where there are a series of offences in one sequence committed by one offender.
[10] See DPP v Barnes [2015] VSCA 293 at [45]-[49]
98 Having reached that conclusion, I am mindful of the principle of totality which must apply to this sentence to ensure it is not crushing.
99 I will also adjust the non-parole period to be lower than I might have otherwise imposed in recognition of the following factors – the delay and your lack of relevant offending, the expert assessment of your risk of reoffending as Low, along with the support of your wife, daughters and extended family, and your ill health.
100 Finally, Aggravated Rape is a Schedule 3 offence pursuant to the Sex Offenders Registration Act 2004. An offender who has been sentenced at any time for one of the Schedule offences will be deemed a serious sexual offender upon being sentenced for a second Schedule offence. That means Charge 3 becomes a Class 3 offence, the consequence of which is that you will be liable to Sex Offender Registration. I will return to that shortly.
Sentence
101 In all the circumstances of your offence and of your personal history, and taking into account the applicable sentencing principles, Mr Braddock, I propose to sentence you as follows.
102 On Charge 1 of Burglary, you are convicted and sentenced to six years' imprisonment.
103 On Charge 2 of Aggravated Rape, where you co-offender vaginally and anally penetrated the victim while you restrained her, you are convicted and sentenced to eight years and 10 months' imprisonment;
104 On Charge 3 of Aggravated Rape where you were the principal offender and vaginally penetrated the victim with your penis while your co-offender restrained her, you are convicted and sentenced to ten years' imprisonment. That is the base sentence.
105 I order that four months of the sentence on Charge 1 be cumulative on Charge 3.
106 I order that 22 months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 3.
107 The total effective sentence therefore is 12 years and two months' imprisonment.
108 I direct that you are to serve nine years' imprisonment before becoming eligible for parole.
109 I declare that you have already served 76 days as pre-sentence detention and that those days should be reckoned as having been served under this sentence.
110 With regard to s.6AAA that is, but for your plea of guilty, the sentence I would have imposed, would have been a total effective sentence of 16 years' and six months' imprisonment, with a non-parole period of 13 years and three months' imprisonment.
Sex Offender Registration
111 The prosecution make application that I should impose Sex Offender Registration upon you. The applicable period would be 15 years.
112 That is opposed by your counsel, given your previous good character and your long history without any further offending.
113 That is a matter for my discretion. The test pursuant to s.11(3) of the Sex Offender Registration Act 2004 is whether, after taking into account any matter I consider appropriate, I am satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
114 The passage of time is relevant here, along with the current risk assessment by Mr Candlish. That assessment is as at the date of his report. Mr Braddock will serve a number of years in custody before again being in the community. I can assume with age and time, and bearing in mind the deterrent effect of incarceration, that risk may be even lower at the time of your release. When released you will be subject to parole conditions. In those circumstances I could not be satisfied beyond reasonable doubt that Mr Braddock poses a risk to the sexual safety of one or more persons or of the community and I decline to make the order. The application is refused.
115 Thanks counsel for your assistance. I will now leave the Bench.
116 MRS HARPER: May it please the court.
117 HER HONOUR: Thank you.
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