Director of Public Prosecutions v Brennan

[2019] VCC 1843

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER BRENNAN

---

JUDGE:	HER HONOUR JUDGE M. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2019
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v BRENNAN
MEDIUM NEUTRAL CITATION:	[2019] VCC 1843

REASONS FOR SENTENCE
---

Subject:         Criminal Law – Sexual Offences
Catchwords:  Rape – Historical sex offences
Sentence: TES: 39 days imprisonment and Community Correction Order for 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	DPP
For the Accused	Mr C. Thomson	James Dowsley and Associates

HER HONOUR:

1Peter Brennan, you have pleaded guilty to one charge of rape, which is an offence with a maximum sentence of 25 years' imprisonment. 

2The crime arises out of circumstances where you were, employed as a masseur in Ballarat and the complainant attended on one occasion only.  During the course of the massage, you raped her by penetrating her vagina with your finger or fingers.  It is not known for how long that act took place. I note that the complainant indicated that she had not felt any pain.

3This offence occurred on 10 July 2007.  Between November 2006 and August 2007, you were employed as a masseur at the same place and subsequently, in 2009, you were convicted after two trials, in respect of sexual assaults, either of two of rape and others of indecent assault, in respect of ten complainants who attended for massage.

4Ultimately in 2012, on appeal your sentence was set at 10 years 3 months, with a minimum of 7 years.  You went into custody for the first time after the trials in 2009, at the age of 61 - or perhaps a little older - with no criminal history.  You served your entire sentence of ten years three months, which was completed on 24 May this year, 2019.  You were then remanded in custody for 39 days on this charge of rape until you were granted bail.

5I was told that the reason why you did not receive parole, was that you did not undertake the sex offender's program, which is required before parole can be considered.

6I have not referred to the complainant by name, I will do so shortly, but I indicate that for the benefit of anyone listening to the published remarks, that the identification of a complainant is prohibited by an Act of Parliament[1], and in the published remarks, I will be referring to her by a pseudonym.

[1] S.4 Judicial Proceedings Act

7Rape is one of the most serious crimes that the law recognises, as can be seen by the maximum sentence of 25 years' imprisonment and from the fact for offences after 20 March 2017, the law provides that rape is an offence for which a sentence of imprisonment must be imposed and cannot be combined with a community correction order.  Because the offence to which you have pleaded guilty occurred long before that, in 2007, the option of sentence of imprisonment and/or a community correction order is still available.

8The facts that you offended against the complainant in the context of your employment as a masseur, that she had undertaken the massage with you, on the basis of a trust that you would deal with her appropriately, and you breached that trust makes your offence more serious.  That was in the context of a period of time in which you were breached the trust of other clients of that massage establishment.  I find that there was a high level of moral culpability.

9As with any offence, however, even one regarded by the law as very serious, there are differing levels of seriousness, and in this context, is important for me to take into account as required by s.5 of the Sentencing Act, current sentencing practice, but also where it is made known to the court, the sentencing practice at the time of the offence.  In this instance, that is known to me, because you were sentenced for exactly the same sort of crimes in 2009 and for offences of rape in these circumstances, received sentences of 4 years and 5 years.

10The victim of your offence is Ms Avery Watson[2], and she provided a victim impact statement to the court, which after a ruling, was read out in accordance with her wishes.  In summary, the impact of your offence on her is that it has led to her having a lack of trust, particularly in relation to men, and men with whom she was feeling were controlling her. She found that in certain situations the behaviour of others produced feelings of fear and that she was unable to breathe, felt not in control, and “locked in”. She felt also unable to stand up for herself. That was in the context of you committing the rape against her in locked premises, where she felt unable to breathe and unable to do, or say anything to prevent what was happening. So, I take into account the impact of your offending, and it has been something that she has lived with since 2007.

[2] A pseudonym

11As has been pointed out by your counsel and indeed, canvassed also by the prosecutor, there are, however, some mitigating factors that I must take into account in deciding the appropriate sentence.  The first of these and most importantly, is the fact that you have pleaded guilty.  As I mentioned earlier, the other offences committed in this period of time, were the subject of convictions after trial.

12You are entitled to have your plea of guilty to this charge taken into account in your favour, and I do so.  Because of your plea, the community has been saved the time and cost of a trial, and you have also spared Ms Watson from the ordeal of giving evidence at a trial, which is always important in cases of sexual offending. However, as your plea was entered after the case was committed to this court for trial, you did not spare the complainant from ever giving evidence, because she was cross-examined at committal. But to the extent that your plea avoided her having to give evidence again, and because of your indication of your intention to plead guilty after the committal, I take that into account.

13I also accept that your plea shows an acceptance of responsibility and a willingness to facilitate justice.  It was not put forward as a sign of remorse, and I do not treat it as such. 

14I have been told something of your personal history and current circumstances.  You are now aged 73, and as I indicated a few moments ago, were released from custody after a 10 year 3 month sentence, in the middle of this year.  You are now living with your daughter, and you are on the Sex Offender Register and have already begun reporting according to those obligations.

15Your daughter has children aged between 4 and 10, and the Sex Offender Register co-ordinators are aware of that and are monitoring that situation.  You were supported in court by your daughter today, and also by a cousin whom you have known all your life, and they do continue to support you in resuming your life in the community after a decade in prison.  You also have sons who live interstate and there is nothing to suggest that they do not provide support but from afar.

16I also mentioned earlier that when you were convicted previously and sentenced to that term of imprisonment, you had no prior convictions.  That is still the case for me sentencing you on this charge of rape because it occurred during the same period of offending.  So, I take into account that as at 2007, you had no criminal history, and there has been nothing subsequent.

17One of the matters that a court needs to take into account in determining an appropriate sentence, is the question of rehabilitation of the offender.  In this instance, there is no remorse shown by you, and the assessment for the community correction order that was undertaken today, showed that you, in my view, lack insight into your offending.  That was already clear from the fact that you did not undertake the sex offender program whilst in custody, even though that meant spending an extra 3 years, 3 months in gaol.

18You have had explained to you that if I decide that it is appropriate to release you on a community correction order that you need to agree to any conditions before I can impose them, and what will take place if you do not, and I will go into that if I get to that point.  The reason for mentioning it now, is that as I say, those matters of lack of remorse and lack of insight, in my mind, raise a question as to your prospects of rehabilitation.

19But I do accept that because of your age, and the fact that there will be no opportunity for you to re-offend as a masseur, and that there is no suggestion that there is a risk of you offending against young children, the outcome of all of that is that I consider that you are at a low risk of similar re-offending.  I also take into account, that as I have mentioned, you are being monitored through the Sex Offender Register. 

20Two final matters before I turn to the submissions on sentence.  First, I take into account the time that has passed since this offence in 2007.  The law does accept that there are good reasons why a person will not immediately report a sexual offence being committed against them[3].  The victim impact statement sets out the reason Ms Watson felt unable to report that offence until 2018.  Even so, there was some delay before the matter came to court, when if it had been dealt with whilst you were still in custody, that would have been preferable.

[3] S.52 Jury Directions Act 2015

21So, I take into account that period of time that has passed since the offence, and whilst in one sense, it is not a matter for mitigation on the other hand, it is very important, and I do not lose sight of what has taken place in that time - a full decade in prison for similar offending in the same period of time as the offence for which I am sentencing you.

22The last matter that I need to deal with is the fact that as a result of the sentence today, if I impose any term of imprisonment, I must deal with you as a serious sex offender.  That means that the principal purpose for sentencing you, is to protect the community, even though both the prosecution and your counsel submit that it is no longer necessary.

23I also have the power to impose a sentence greater than is proportionate to your offence, but the prosecution do not seek that, and I do not intend to do that for all the reasons that have been outlined by counsel.

24Turning then to the submissions.  In effect, both counsel have put forward that because of the factors that are in your favour, that is, the plea of guilty, the fact that the prison sentence that you have already undergone has met and dealt with all of the sentencing principles that would otherwise need to be met in the sentencing of you today, because of your age, because of the passage of time since the offence was committed, that in all the circumstances, whilst this is an offence that it is appropriate to have as the only alternative a sentence of imprisonment, that should be only as to the time you have already served of
39 days, with you then to be released on a community correction order.

25I have decided that in all of the circumstances, that is an appropriate outcome.  So, let me just go through that, Mr Brennan.  As I have said, I agree that the only alternative open to me is a sentence of imprisonment, but I propose to make that the period of time that you have already served of 39 days.  Then, if you agree, I propose to release you with conviction on a community correction order for 18 months.

26That order will have the conditions that are attached to every order, which are that you must report to and receive visits from Corrections Victoria you must notify Corrections Victoria of any change of address or employment, you must not leave Victoria without permission of Corrections Victoria, and you must comply with any direction given by Corrections Victoria to ensure compliance.

27I also propose to order that you comply with other conditions.  First, that you must be under the supervision of Corrections Victoria.  Secondly, that you must perform 30 hours of unpaid community work.  Thirdly, that you must undertake programs to reduce the risk of re-offending, and that will involve an assessment for the sex offender program, and if you are found suitable, you must comply with the directions to undertake that program.

28I do propose, if this order is made, to have any hours that you undertake in the program to count towards your hours of unpaid work, so, that if you undertake those program hours, that will reduce the hours you are required to complete under the work condition.

29So, Mr Brennan, do you agree to being released on a community correction order with those conditions attached?

30OFFENDER:  Yes, I do, Your Honour.

31HER HONOUR:  I do need to tell you that if you are unwell or there are exceptional circumstances, the order can be suspended.  If your circumstances change, you can apply to the court for the order to be varied in some way or even cancelled, depending on your circumstances.  In either case, if there is a change in your circumstances, you must notify your community corrections office, and I also recommend you get legal advice.

32If you do not complete a condition of this order, any of those conditions that I have gone through, and that includes by committing any other offence, then you will be brought back before me to be re-sentenced on this charge of rape, and also be dealt with for breaching the condition.  So, as I discussed with your counsel, the options will be very limited; you will almost certainly get more time in gaol.  So, do you understand what will happen if you do not complete this order?

33OFFENDER:  Yes, I do, Your Honour.

34HER HONOUR:  I can also indicate that if Mr Brennan had not pleaded guilty but had been found guilty of this offence after a trial, the sentence I would have imposed is a sentence of four years' imprisonment, but with a much lower non-parole period, in the circumstances, of 20 months.

35Mr Thomson, perhaps you might go with my Associate to make sure Mr Brennan has any questions about that order, before he signs it. 

36All right, so I have signed that also, Mr Brennan, and we will have a copy made for you before you leave today.

37OFFENDER:  Thank you, Your Honour.

38HER HONOUR:  So, let me just formally announce the orders.  On the charge of rape, you are convicted and sentenced to 39 days' imprisonment, after which you are to be released on a community correction order with the conditions I have outlined.

39I declare that you have served 39 days already in custody, and as those are to be reckoned as served, you are to be immediately released on the community correction order.  It is to be noted in the record that you have been sentenced as a serious sex offender on this charge.

40I do not think there is any other orders, Mr Batten?

41MR BATTEN:  No, Your Honour.

42HER HONOUR:  All right.  So, I thank counsel for their assistance.  Yes, thank you.  So, Mr Brennan can be released from the Dock.  Yes, so Mr Brennan, all things going well, I will not be seeing you again.

43OFFENDER:  Thank you, Your Honour.

44HER HONOUR:  Yes, thank you. 

‑ ‑ ‑