Director of Public Prosecutions v Bravery

[2016] VCC 504

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-02215

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH BRAVERY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Bravery
MEDIUM NEUTRAL CITATION:	[2016] VCC 504

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Offender	Ms J. Fallar

HIS HONOUR: 

1Kenneth Allen Bravery, on 15 April 2016, you were convicted by a jury of two charges of indecent act with a child under the age of 16 years.  That crime has a maximum penalty of ‑ ‑ ‑ 

2MR DOYLE:  Ten, I think.

3HIS HONOUR:  Ten years.

4MR DOYLE:  Yes.

5HIS HONOUR:  But in any event, I am not imposing such a penalty so it is of little significance here.  The two offences occurred within a short period of time and I treat them as almost a continuing offence in this scenario.  You were 78 years of age at the time of the offending and now 81. 

6Initially there was a hung jury and then there was a retrial upon which you were convicted.  Accordingly there is no plea of guilty, there is no remorse, there is no utilitarian benefit in respect of this.  I also note that the defence was that the mother of the child was lying and a jury clearly rejected that proposition.

7You have no prior convictions and you have no matters pending and you are now fairly described as an elderly man.  A number of references and reports have been tendered on your behalf and I make the medical reports Exhibit 1 and the references on your behalf Exhibit 2.

8The circumstances of the offending were you had been residing at Cowes, Phillip Island, for a period of time.  The complainant had just turned six at the time of the offending.  She and her mother frequently stayed at Phillip Island in a caravan.  Your address was not far from that caravan park and you became acquainted with the complainant and her mother over a period of years.  The three of you would often go for walks and on a number of occasions, something in the order of ten or so, you took the child for a walk yourself.

9On 22 December 2013, you attended at the caravan.  The complainant's mother was cleaning and you took the complainant for a walk.  You left the caravan with the two dogs and the mother remained behind.  You and the complainant walked down to the beach and were on the beach for a little while.  At some stage while on the beach, you gave the complainant a cuddle or a hug. That is what she ultimately described. In those circumstances at or near some rocks you on more than one occasion touched the outside of her vagina over her clothing.  Clearly it is just one charge and she described it as being touched on the bum, which apparently was what she meant by indicating that whole area.

10She said that she asked you to stop but you continued to touch as I have indicated.  You and her then walked to a friend of yours' house, I will not name the name, who was not at home.  You would call in there occasionally with the complainant and you also would attend to that house in putting the bins out and things like that.  Whilst at the address, the complainant played on the trampoline and there are various descriptions of what occurred after that.  I would accept her evidence that you touched her on that occasion more than once, but the charge is of having touched her in the same way, over her clothing on the outside of her vagina under the trampoline. 

11She said that she again asked you to stop and that you did not and gave the description as previously.  In her VARE and also during the course of the hearing in relation to her she gave a physical description of what you did and I have absolutely no doubt that that physical description was in fact what you did.  Children might struggle with memory turning it into language and the like, but physical memories are usually in my view very accurate.

12In any event, upon returning to the caravan, whilstyou were sitting in that van, she approached her mother and told her that you had been touching her bum, that she asked you to stop and you would not and could her mother ask you to stop.  Your response to that was that it was an accident.

13In any event some days later after consternation and I have no doubt great anxiety, she eventually went to the police and reported the matter.  You were interviewed by police sometime later and you agreed with a number of things and in my view importantly, went to the two very instances that the girl had referred to, taking them to the places where the offending had taken place.  It was put that you were talking in general terms, I do not think that is the case at all.

14In any event you denied the touching, but said during the course of that interview that if there was any touching that would be by way of an accident. 

15Insofar as the offending is concerned, they did occur within a short period of time, it is on the outside of the clothing and very fortunately, the child would appeared to have suffered very little, if any, ill-effect from it all.  Her mother has put in a victim impact statement and she has been affected by it.  Having dealt with many of these situations over the years, that victim impact statement from the mother described the psychological difficulties that arise. 

16She at one stage I think said that your position with the child almost been - or your counsel might have said, almost grandfatherly.  It is a massive breach of trust to do it and as she has said in her victim impact statement, as many mother's do in these circumstances, "I feel like I failed as a mother."  It is not correct of course, but this is the sort of effect that this sort of offending has.  I take that victim impact statement into account.

17Any form of a sexual assault on a child or sexual act with a child has to be regarded as serious, and of course the application of general deterrence.  In your circumstances I think specific deterrence is of little consequence.  Bearing in mind your personal circumstances, I think the matters of denunciation and punishment have to be significantly moderated.

18It is clear from the material that has been tendered on your behalf and from the general evidence given in the trial, indeed from the mother of the child who was prepared to say that this was out of character for you, that you had no problems of this nature before, you have no prior convictions, you have got a good work record, you had everything going for you in terms of assisting people and the like.  There have been no matters subsequent.

19On the medical material, I accept that there certainly has been over the last few years and predating this offending, a degree of ongoing cognitive difficulties and that you had, it has been described to me as early dementia, I am not going to buy into all the medical definitions of that.  What I will accept in this situation is that what occurred was very much an aberration that had occurred in the context of inhibition brought about by cognitive difficulties and I can understand why you might not be prepared to admit to it. I cannot understand this defending by attacking the mother.

20In any event, when I take all those matters into account, as I said, the risk of your reoffending is low and the prospects of your rehabilitation should be good.  I am not even going to describe why I am not putting you in custody, your medical condition, the low level in that sense of the offending and the low risk of reoffending all preclude such a disposition.  Were you a significantly younger man, it may have been a different result.

21In any event, taking all those matters into account and the material provided your behalf, I think the only disposition that I can really sensibly impose here is one of a monetary penalty, that being a fine.  As I indicated, the way the matter has been conducted I would not have even considered having it without conviction, but it is got to be a fine which fits with you, so I am told, limited financial circumstances. 

22Accordingly on the two charges, you are fined an aggregate of $1,500 and I will grant a stay of three months, if there is more time needed after that it can be applied for.

23MS FALLAR:  AS Your Honour pleases.

24HIS HONOUR:  There are no other orders?

25MR DOYLE:  No, Your Honour.

26HIS HONOUR:  Sorry, the only other thing is of course the sec offenders register.

27MR DOYLE:  Yes, the register.

28HIS HONOUR:  I must advise you that reporting will be for eight years and that will now be given to you. 

29MS FALLAR:  Your Honour, may I assist Mr Bravery?

30HIS HONOUR:  Yes.  All right.  There are no orders that need to be made?

31MR DOYLE:  No, Your Honour.

32HIS HONOUR:  All right.  Yes, we will just discharge him and that is that.

33MR DOYLE:  That's it.  Thank you, Your Honour.

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