Director of Public Prosecutions v Bradley

[2022] VCC 1334

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

 Suitable for Publication

GENERAL LIST

Case No. CR-22-01054

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRY BRADLEY

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2022
DATE OF SENTENCE:	15 August 2022
CASE MAY BE CITED AS:	DPP v Bradley
MEDIUM NEUTRAL CITATION:	[2022] VCC 1334

REASONS FOR SENTENCE

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Subject:Criminal Law

Catchwords:   Sexual assault; Fail to Comply with Reporting Obligations

Legislation Cited:  Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:

Sentence:                     18 months imprisonment; 18-month Community Corrections Order (supervision, sex offender treatment).

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms V. Cashmore	Office of Public Prosecutions
For the Accused	Mr. L. Dogger	Daniel Taylor Lawyers Pty Ltd

HER HONOUR:

1.Terry Bradley, you have pleaded guilty on indictment M11914237 to five charges of sexual assault alleged against 4 separate victims with your offending occurring between February 2020 and July 2021.

2.On a separate indictment numbered M11914237.A.1 you also entered a guilty plea to a single charge of Failing to Comply with Reporting Obligations pursuant to the Sexual Offenders Registration Act, that offence occurring between
5 May 2021 and 12 June 2021.

3.I note that a charge of sexual assault carries a maximum penalty of 10 years imprisonment and failing to comply with reporting obligations carries a maximum penalty of 5 years imprisonment.

4.The circumstances of your offending were set out in a document “Summary of Prosecution Opening” for plea dated 11 July 2022.  This was an agreed document and represents your acceptance of all of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I have had recourse to the full document which will only be repeated in part in my sentencing reasons.

The offending – Indictment No M11914237

5.Turning to the offending the subject of Indictment M11914237.  You met each of your alleged victims as you spent significant time at a share house where the victims resided at times.

Charge 1 – Sexual Assault of Elizabeth Murray[1] between 1 February 2020 and 30 April 2020.

[1] A pseudonym.

6.In terms of Charge 1, sexual assault of Elizabeth Murray, Ms Murray was 19 years of age at the time of this offending and was residing at the share house.  You had become flirtatious towards her when you attended the address and had made frequent attempts to touch, grab and kiss her.  On one occasion Ms Murray was in Ms Acquilina’s[2] bedroom with her back to the door when you entered the room and told Ms Murray that you loved her.  You pushed her onto a bed, trying to kiss her neck and breast whilst moving your hands all over her body. It is the pushing of her onto the bed and touching of her body which is said to be the sexual assault.

[2] A pseudonym.

Charge 2 – sexual assault of Elizabeth Murray between 1 November 2020 and 31 March 2021.

7.You had showed your sexual interest in Ms Murray by telling her that you loved her and wanted her in your bed as well as by hugging her and smacking or grabbing her buttocks.  You also grabbed her breasts on some four occasions. She had repeatedly made her disinterest clear.  At an event in you told Ms Murray that you loved her, were going to marry her and dreamed of having sex with her.  You moved closer to her, attempted to kiss and grab her on the chest whilst touching her on the buttocks.  Ms Murray walked away.  It is the touching on the buttocks which is said to be the sexual assault.

Charge 3 – Sexual assault of Sara McManus[3].

[3] A pseudonym.

8.Ms McManus was 19 years of age and friends with Ms Acquilina.  On one occasion when Ms McManus came from using the bathroom at your house you have approached her, kissed her on the mouth and put your arms around her.  You then placed your hands behind Ms McManus’ back and moved them down her body to her buttocks where you rested them.  It is the touching on the buttocks which is said to be the sexual assault.  When you asked Ms McManus if she would have sex with you she told you that she doesn’t have sex with old people.

Charge 4 – Sexual assault of Nina Robertson[4].

[4] A pseudonym.

9.Ms Robertson was between 17 and 18 years of age at the relevant time and is Ms Acquilina’s cousin.  She was staying at the share house.  After you showed interest in Ms Robertson, your friend told you, “She’s underage, so don’t even try.  Also, she's a lesbian, so you’re out of luck.” Prior to the charged offence you had made an advance to Ms Robertson and were told by her “Nope.  Lesbian.  And taken.  And underage.” Despite this, on one occasion Ms Robertson was in bed FaceTiming her girlfriend when you entered her room, and climbed into her bed. You have spooned Ms Robertson, placing your hand on her leg, running it up her thigh until you reached the top of her leg.  She batted your hand away.  It is the touching of Ms Robertson’s leg which is said to be the sexual assault.

Charge 5 – Sexual assault of Leah Acquilina[5].

[5] A pseudonym.

10.Ms Acquilina was 22 years of age and resided at the share house. On one occasion, you entered the address without knocking and went to Ms Acquilina’s bedroom, told her that you were going to have sex with her, walked over to her and pushed her back onto the bed. You have then jumped on top of Ms Acquilina, taking both her wrists and pinning her on to the bed. You then ran your hands over her ribs before reaching down with your left hand and rubbing her vagina over the leggings she was wearing. It is the pushing of Ms Acquilina onto the bed and touching of her vagina which is alleged to be the sexual assault.

11.You were arrested on 9 September 2021 and gave a “No comment” record of interview, as is your right.

Indictment No- M11914237.A.1

12.Turning now to Indictment M11914237.A.1  On 1 May 2009, you were placed on the Sex Offenders Register and ordered to report for life pursuant to the
Sex Offenders Registration Act 2004. You became subject to reporting as of
9 February 2012 and were served with a Notice of Reporting Obligations at your initial interview on that date and again at each annual review thereafter.

13.Between 5 May 2021 and 12 June 2021 you failed to comply with your reporting obligations without reasonable excuse in that you had contact with a child, namely Nina Robertson, and did not report that contact to the
Chief Commissioner of Police within 24 hours as you were required to do.

14.I note that this offence occurred, in part, at the time of your offending the subject of Charge 4 on the other indictment when you have touched Nina Robertson’s leg, the subject of a charge of sexual assault. This commonality is relevant to any sentencing exercise.

Offence gravity and victim impact

15.You have a relevant prior history for failing to comply with your reporting obligations pursuant to the Sexual Offenders Registration Act. You were well aware of what was required of you under that legislation. 

16.The charge of sexual assault is an offence which carries a wide range of offending behaviour of differing gravity.

17.An assessment of the gravity of your offending was addressed in the written submissions filed your behalf.

18.In terms of the submissions I accept that:

(a)the offending is objectively serious;

(b)that charges 1 and 5 are aggravated by your use of physical force;

(c)that charges 1,4 and 5 are aggravated by the fact that they occurred in the home of the respective complainants; and

(d)that there are a number of aggravating features which are absent.

19.Observationally, charge 5 would appear to be the most serious of the five charges.

20.The victims the subject of your offending in charges 3 and 5 had shown no interest in you. You gave them little, if any, opportunity to fend off your approach. 

21.Further, for the victims the subject of charges 1, 2 and 4, I am concerned, in terms of your future risk, that your offending occurred in circumstances where your attentions were clearly unwanted, you would have been aware of that, yet you persisted.

22.The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

23.Both Leah Acquilina and Nina Robertson have provided victim impact statements and I have had regard to their content.

24.Leah Acquilina describes the ongoing effect of your crime upon her. She now isolates herself from others, is afraid to go out, has reduced confidence and describes herself as being in constant fear. She has become reliant on her partner for all social contact, putting a strain on their relationship.

25.Nina Robertson also struggles to be on her own, has difficult trusting people and has suffered depression. She has in fact moved from the area in which the offending occurred.

26.It is clear from each of the victim impact statements that the effect of your offending on your victims continues and is certainly likely to do so well into the future. 

Plea of guilty

27.The Sentencing Act obliges me to take into account the stage at which you entered your plea. 

28.Yours took place after sentence indication on 21 June 2022. You were arraigned and pleaded guilty to the charges on each of the indictments on 27 June 2022

29.Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings. The sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or electing to continue to proceed to trial.

30.The sentence indication given by me was that should you determine to plead guilty to the matters on the indictment involving the five charges of sexual assault then I would impose a sentence that involved a period of imprisonment and a lengthy community corrections order. I also indicated that a plea of guilty to failing to comply with your reporting obligations was unlikely to interfere with that outcome. I am bound by the indication given.

31.Your decision to plead guilty in that context was, as I understand it, a pragmatic one. It could not be said that you are remorseful for your conduct.

32.Nevertheless your decision to plead guilty has facilitated the course of justice, has spared the court time and expense of contested proceedings, and importantly, the need for witnesses to attend to give evidence and relive traumatic events.

33.In addition, your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates remain unfixed.

34.These factors will also be taken into account in your favour.

Prior criminal history

35.

In terms of your prior criminal history, your prior criminal history commences on

17 March 1992 when the Moe Magistrates Court placed you on an adjourned undertaking for charges of theft of motor vehicle and going equipped to steal.

36.On 1 May 2009 you were sentenced by the Melbourne County Court in relation to one charge of incest by a parent and four charges of indecent act with a child under 16 years. On that occasion you received a total effective sentence of five years and three months imprisonment with a non-parole period of two years and eight months imprisonment to be served before being eligible for parole. Two days were reckoned as having already been served. It was on this occasion that you were placed on the Sex Offenders Register.

37.On 12 March 2014 you appeared at the Dandenong Magistrates Court for failing to report a change of employment details. This appears to be related to your status on the Sex Offenders Register and you were convicted and fined the amount of $600.

38.On 16 September 2016 you appeared at the Latrobe Valley Magistrates Court for a charge of failing to comply with reporting obligations and on that occasion were convicted and fined the amount of $500.

39.You next appeared at the Latrobe Valley Magistrates Court on 25 July 2017 for a charge of cultivate a narcotic plant, namely cannabis. You were fined $500 without conviction.

40.

On 22 March 2018 you were fined the amount of $2000 by the

Latrobe Valley Magistrates Court.  Again this is for a charge of failing to comply with reporting obligations and also a charge of hindering an emergency work on duty.

41.It is clear that you have a prior history for the type of offending which is on each of the indictments before me.

42.Whilst not to be punished for your criminal history a second time, it is relevant to the assessment to be undertaken as to the weight to attach in sentencing to the principles of specific deterrence, denunciation and protection of the community. All of these factors are pertinent to your sentencing exercise.

43.Your history is also relevant as to an assessment of your prospects for rehabilitation.

Personal circumstances

44.Turning to your personal circumstances:

45.You are now aged 50.

46.You were born and raised in Moe, Victoria.

47.Your parents provided a stable family unit and remained together, living in Newbrough. Your mother worked at a textile mill and your father was a boilermaker at the State Electricity Commission. At present your father is the full time carer for your mother.

48.You have one younger brother, Paul, with whom you do not have regular contact.

49.You left your education at Yallourn Technical School part way through year 11. You were bullied severely during your school years.

50.On leaving school you moved to the south eastern suburbs of Melbourne, living with relatives, who had secured you a diesel mechanic apprenticeship. You successfully completed that apprenticeship and worked in that field until your incarceration in 2009.

51.You have had two long-term relationships. Your first, of seven years duration, produced two daughters now in their 20s. You presently have no contact with those children.

52.You were admitted to a psychiatric ward in Dandenong before that offending. You had attempted suicide.

53.You were assaulted and bullied whilst serving the sentence imposed upon you in 2009 and found your return to the community an extremely difficult transition.

54.You were also an inpatient at the Latrobe Valley psychiatric ward for four days after serving your County Court prison sentence.

55.On your release in 2015 from that sentence, you lived with your parents but had difficulty finding stable employment. You were able to find short-term jobs, largely in labouring.

56.You suffer from osteoarthritis in your left hip which you have been told requires replacement and that three discs in your lower back have degenerative damage. You have seen a physiotherapist once whilst on remand.

57.In 2005 you were diagnosed with bipolar affective disorder and are currently receiving both an antidepressant and a mood stabiliser whilst in custody. You are seeing a psychiatric registrar approximately every two to three weeks.

Psychological reports

58.Tendered on your behalf was a psychological report authored by Ms Gina Cidoni, psychologist, dated 22 March 2022. It appears to have been prepared to address pending charges relating to breaches of the Sex Offenders Register.

59.Testing revealed high psychological distress and personality disturbance. Emotional dysregulation and severe boundary difficulties were described as prominent features. Your cognitive function was said to be in the borderline to extremely low range.

60.Ms Cidoni diagnosed you with Borderline Personality Disorder and Major Depressive Disorder.

61.On the material before her, Ms Cidoni assessed you as presenting with a moderate risk of sexual recidivism without any formal intervention.  This assessment is of limited utility in the circumstances. 

62.Ms Cidoni has provided an additional report dated 11 July 2022, having then been made aware of the five charges of sexual assault and a separate charge of failing to comply with reporting obligations.

63.In her subsequent report Ms Cidoni diagnoses you with Borderline Personality Disorder, Major Depressive Disorder and an Adjustment Disorder.

64.Collectively the symptoms of these conditions cause you to be impulsive, have difficulty controlling your behaviour, inflict persistent worry, difficulty relaxing and to you being overly sensitive to criticism.

65.Your risk of sexual recidivism was still assessed as moderate without any formal intervention.

66.I have taken the content of Ms Cidoni’s reports into account.  You say that you are willing to undertake treatment. Curiously, you report not accessing any sex offender treatment whilst previously undergoing sentence or whilst being subject to parole order.

Prospects for rehabilitation

67.In terms of your future prospects, you wish to return to the Latrobe Valley area to assist in the care of your elderly parents

68.It is difficult to assess your future prospects. I am told that you have the support of family. You have now spent a lengthy period on remand in difficult circumstances given it has been during the Corrections response to the Covid 19 pandemic and, in your case, you have not had the opportunity to receive personal visits from family and friends who you would otherwise rely on for support.

69.I accept that the matters raised on your behalf and the current circumstances of remand are relevant to the sentencing process which would, axiomatically also include the consideration of deterrence, denunciation, just punishment, and rehabilitation. Protection of the community has obvious importance given this offending, your relevant history and the insufficiency of the psychological material given the simple fact that your offending is not admitted.   

70.I accept the submission that, having regard to the similar nature of the offending in the time period in which it occurs, there is a basis for a degree of concurrency between the sentences to be imposed.

71.Section 9 of the Sentencing Act 1991 actually prohibits the imposition of an aggregate sentence in your circumstances, otherwise I would have done so

Submissions

72.In terms of submissions, each party submits that all relevant sentencing submissions could be reflected in a term of imprisonment and you being able to access a community corrections order.

73.An assessment outcome report dated 27 June 2022 tells me that you are unsuitable for a Community Corrections Order.  You were described as forthcoming in that assessment but appeared to deny the offending.  The concern on behalf of correctional services was that you would be unwilling to engage in any order imposed upon you.

74.Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of a corrections order.  I did have you assessed, as already outlined, in addition to seeking a report from the Mental Health Advice and Response Service.

75.The making of an order also requires the consent of the offender. You did indicate your consent to the assessor.  Whilst I do understand the concern expressed by the assessor, I do not see the recommendations made in the assessment undertaken as a basis to form the view that you should not receive a corrections order if that is the appropriate penalty for the offending taking into account all relevant sentencing considerations.

76.The report from the Mental Health Advice and Response Service details three previous inpatient admissions to a psychiatric unit, the last in 2008. You expressed a desire to have your current psychiatric medications reviewed and to access counselling upon release. You had been seeing a counsellor prior to your remand and had found it to be of some benefit.  A mental health condition was recommended on any Corrections Order imposed.  

Sentencing

77.You do fall to be sentenced as a “serious sexual offender” as you have previously been sentenced terms of imprisonment for relevant offences. This status is to be reflected on the record.  Whilst these provisions enforce protection of the community as a principal sentencing purpose, a disproportionate sentence is not sought.

78.The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those your victims.

79.I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure where possible, that offenders are rehabilitated and are reintegrated into society. 

80.I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and the important principles of totality and proportionality.  

Indictment No M11914237

81.Turning to Indictment M11914237. 

82.Charge 1 (Elizabeth Murray) - you are convicted and sentenced to eight months imprisonment of which two months is cumulative on the base sentence and other sentences imposed.

83.Charge 2 (Elizabeth Murray) - you are convicted and sentenced to four months imprisonment of which one month is cumulative on the base sentence and other sentences imposed

84.Charge 3 (Sara McManus) - you are convicted and sentenced to three months imprisonment of which one month is cumulative on the base sentence and other sentences imposed.

85.Charge 4 (Nina Robertson) - you are convicted and sentenced to eight months imprisonment of which two months is cumulative on the base sentence and other sentences imposed.  The base sentence is that to be imposed on Charge 5.

86.Charge 5 (Leah Acquilina) - for that offence of sexual assault you are convicted and sentenced to 12 months imprisonment.

87.This comprises a total effective sentence of 18 months imprisonment. I do reckon 341 days, including today, as having already been served.

Indictment M11914237.A.1

88.Turning now to Indictment M11914237.A.1  For the indictment carrying the charge of failing to comply with reporting obligations, given your relevant history, you are convicted and placed on a community corrections order for a period of
18 months. This order is to be therapeutic only.

89.You are to be supervised by the Office of Corrections, to be assessed and treated for any presenting mental health conditions and to be referred for offence specific treatment, particularly sex offender treatment, noting you have not been able to access that previously.

90.In addition to the conditions that I have imposed there are standard conditions. The first and foremost is that you must not commit any other offences punishable by imprisonment during the 18 month period of the order. You must report within two working days of your release to the nearest Community Corrections Office. You are required to advise your supervising Corrections Office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Corrections Officer. You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.

91.This order presents you with a chance to change your life in a positive fashion, as you have indicated you wanted to do, and should you choose to take up that opportunity and the supports that I intend be made available. The order can be breached if you do not comply with it in terms of the conditions and can be breached if you reoffend by an offence punishable by imprisonment whilst it is in place.  If you do, you may be required to appear before me for breaching the order and I may have to resentence you on the original charge and as well as for a defence of contravening the community corrections order.

92.I can only place you on the corrections with your permission and in a moment I will stand down so that you can speak privately to your instructing solicitor.

93.Before I do so, s6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to what would be a total effective sentence of two years and 10 months with a period of two years before being eligible for parole.

94.I will just check with you, Ms Cashmore, before I do stand down so that Mr Bradley can speak privately with Mr Dogger.  Anything arising?

95.MS CASHMORE:  No, Your Honour.

96.HER HONOUR:  All right. Mr Dogger, anything arising from your end before I give you the chance to speak with Mr Bradley?

97.MR DOGGER:  No, Your Honour.

98.HER HONOUR:  All right.  I will stand down so that you can get his instructions about whether or not he is prepared to comply with the corrections order.

99.(Short adjournment.)

100.HER HONOUR:  Thank you, Mr Dogger. 

101.MR DOGGER:  Thank you, Your Honour.  Mr Bradley has indicated consent to the making of that order.

102.HER HONOUR:  All right.  I know Mr Dogger has effectively advised me of your instructions, Mr Bradley, but I will ask you directly because I need your verbal consent.  I am told that you do agree to being placed on that corrections order?

103.OFFENDER:  I do agree, Your Honour, yes, completely.

104.HER HONOUR:  All right.  I hope all goes well because in the nicest possible way I do not want to see you again.

105.OFFENDER:  I don't want to be here again, Your Honour, honestly.

106.HER HONOUR:  I am sure that's right.  All right.  Mr Dogger, thank you very much for your assistance.  Thank you a well, Ms Cashmore.  I will close the court until 9.45 tomorrow.  Thank you. 

107.OFFENDER:  Thank you, Your Honour.

108.MR DOGGER:  If the court pleases.

109.HER HONOUR:  All right.  Thank you.  We will adjourn.

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