Director of Public Prosecutions v Briggs

[2014] VCC 1579

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

AT WODONGA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

MARK ANDREW BRIGGS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Wodonga
DATE OF HEARING:	18 September 2014
DATE OF SENTENCE:	19 September 2014
CASE MAY BE CITED AS:	DPP v Briggs
MEDIUM NEUTRAL CITATION:	[2014] VCC 1579

REASONS FOR SENTENCE

Subject: Criminal Law - sentence          

Catchwords:   Plea of guilty to one charge of rape - male accused aged 48 – male complainant aged 17 – both intoxicated – spontaneous unplanned offending – no grooming – accused sexually immature and socially unskilled -      extreme remorse and embarrassment – admissions - long delay - very good prospects for rehabilitation.

Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:R v Verdins (2007) 16 VR 269; 169 A Crim R 581

Sentence:      CCO (2 years)   

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Moore	OPP
For the Accused	Ms D. Price	Mario Vaccaro

HER HONOUR: 

1Mark Andrew Briggs, you have pleaded guilty to one charge of rape.  This occurred in 18 November 2011, when you invited the complainant , a 17 year old, to your home.

2Rape is a very serious crime and the maximum penalty is 25 years' imprisonment.

3You were then aged 48 and you were employed in the same workplace as the complainant.  You had become friends and he had confided in you.  On Tuesday 17 November, you telephoned him and invited him to your home, and he agreed to come after telling you he had to check with his parents first.

4He arrived there at about 9 pm, and the two of you were drinking alcohol, while you finished eating dinner.  You both then went to buy cigarettes and met two young women whom the complainant knew.  You both invited them back to the house, where the two of you continued drinking until the women left at about 1 am.

5You then told the complainant to remove his clothes and you sat next to him on the couch.  You touched his penis, then you removed your own clothes and obtained a tube of lubricant.  You rubbed this over his genitals and then partially inserted your finger into his anus.  You moved your finger around causing pain to the complainant, and he realised what you were doing.  He told you to stop and to get off him saying, "I can't do this."  You stopped immediately and offered to make up a bed for him, but he dressed and left.  You telephoned him a few minutes later and asked if he was all right, to which he answered, "No, not really."  You also sent him a text message the next day with a similar inquiry but received no reply.

6Shortly after leaving your house, the complainant telephoned a friend and told her he had been molested and told her the details.  He said he had sobered up and realised what had happened to him.  He then arrived at the house of another friend and told him what happened, saying that he had been drinking and could not really remember how it happened, but he believed he had been raped.

7That night, he told his parents, and later that night, he reported it to the police.  He was medically examined and found to have a fresh injury to his anus.

8You were interviewed a few days later and made a number of admissions.  You said you knew that the complainant was drunk and that he was also affected by prescribed medication and you agree that he was not able to consent to having sex.  You said he had not indicated that he did not want you to touch him intimately and he did not object to anything you did until he told you to stop.  You agreed that you had inserted one finger into his anus, and you probably acted forcefully in doing so, which caused the injury.  You describe what you did as stupid, something you should not have done.

9The complainant has provided a victim impact statement in which he describes the profound effect this incident had upon him.  He states that he was very depressed and fearful, and at one stage was admitted to hospital, having taken an overdose of prescription medication.  He felt he had been robbed of his pride, his rights, and his dignity.

10Having read that statement you wrote a letter of apology to the complainant in which you stated how sorry you were for what you did.  You assured him that he had nothing to fear from you and you wished him well.

11As to your personal background, you are age 51 and you were 48 at the time of the offending; 31 years older than the complainant.  You are a single man and have never been married or in any sort of intimate relationship.

12As a boy, you struggled with school work and left school to take a job as a shelf stacker in a supermarket.  You performed that work at Coles for 30 years, but were dismissed when this incident occurred.  You found it very difficult to obtain work after that and it was not until October last year, that you obtained a job as a delivery driver, where you still work.

13You have no previous convictions and have never been in any sort of trouble.  Indeed, you have contributed to the wider community at an impressively high level.  I shall refer to these matters in some details.

14Your most singular achievement has been the successful care and guidance you have given to Michael Fleming-Robertson, a young man for whom you were foster carer for several years.  He came to you for respite care when he was about 14 years old, and spent time at your home regularly, until eventually he lived with you on a full-time basis.  You encouraged him to return to school and he completed Year 10.  You encouraged him to find work, and eventually an apprenticeship, and he is now a third year mechanic's apprentice.  You helped him obtain his drivers' licence by drilling him in the road rules and providing him with the necessary hours of driving to pass the test.

15Mr Fleming-Robertson, who is now 22, gave eloquent and persuasive evidence about your role in his life, as the father he never had, and state that he never would have achieved what he has without you.  He said he has never observed or experienced any improper behaviour by you and cannot believe the offence occurred.

16Your other community involvement was with the scouting movement and the Country Fire Authority.  Your father had been a scout leader and you joined as a six year old, moving on through the various age related groups and gaining a Queen's Scout Award.  Later, you had various leadership roles and your commitment and good reputation in the organisation was attested to by Mr Neuwirth in the evidence he gave.

17You have had a long career as a fire fighter with the Country Fire Authority, receiving a local award and a number of medals.  You responded to over a thousand call outs until you stepped down from an active role a few years ago, owing to symptoms of arthritis you were experiencing, and you now occupy a reserve role.

18As the youngest of six brothers, you took on the role of caring for your parents as they grew old, and you lived with them during their final years.

19Clearly the evidence of these matters, established your previous good character and supports the conclusion that committing this offence is quite inconsistent with your well-deserved, excellent reputation in the community.

20Other matters that go to mitigation, are your early plea of guilty and the long unexplained delay that has occurred in the prosecution of this case.  You were not charged until 27 February 2014, even though the complainant reported the matter immediately on 19 November 2011, and you were interviewed a few days later.

21You entered a plea of guilty at the committal mention on 19 June 2014, at the earliest opportunity.  For that, you are entitled to a discount on your sentence, for having avoided the need for a trial and your plea has avoided the need for the complainant to have to give evidence and cross-examined, and that is an important matter.

22No explanation has been offered for the delay.  During 2012 and 2013, you made enquiries of your solicitor on three occasions as to the progress of the case, and when he made enquiries, he was informed as late as July last year that the investigation was still underway.  This significant delay of two and half years has caused you great difficulties.  You were without work for almost two years and became unable to meet the mortgage payments on your family home, which you had bought from your mother some years before, when she went to live in a nursing home.

23Despite forbearance from the bank, you were eventually forced to sell the house.  You and Mr Fleming-Robertson were able to remain as tenants for some time but later had to find rental accommodation.  Had the prosecution been expedited, as could have been expected in the circumstances of the prompt reporting and your own immediate cooperation, some of these unfortunate consequences might have been avoided.  I take that delay into account and apply considerable weight to it.

24You have suffered from a number of medical problems over the years, some of which have been serious and some of which have required surgery; and you have been treated with medication for the arthritic condition to which I referred earlier.  The mental health difficulties that have recently been diagnosed, form the basis of submission by your counsel that the principles in the decision of the case of Verdins apply in this case, and there is no opposition to that submission.

25Mr Cummins, the forensic psychologist who saw you recently, ruled out any major mental illness.  His opinion is that at the time of the offending, you were suffering from a chronic adjustment disorder with anxiety which had developed in response to your compromised social and inter-personal skills, including psychosexual immaturity.

26For the reasons which follow, I agree that your moral culpability is somewhat reduced and so by application of the decision in Verdins, there should be a slight moderation in the severity of the sentence in this case.

27Mr Cummins considered that the disorder he had diagnosed has relevance to your offending because it meant that it was difficult for you to tell whether or not the complainant was consenting.  Added to this, was anxiety concerning your sexuality and what, in effect, amounted to experimentation with the complainant.

28The gravity of the offending in this case is somewhat reduced by the circumstances of the inebriation of both you and the complainant.  While that does not excuse what you did, I accept that you did not intent to penetrate the complainant without his consent, but you were reckless as to whether he was consenting or whether he was capable of giving consent.

29You have acknowledged that you were reckless and you have expressed your great regret that you acted in that way.  Remorse and insight are important parts of the rehabilitation of an offender and I accept that you have demonstrated both in a genuine fashion.  It is also important that there was no grooming of the complainant by you and no planning for sexual activity.  It occurred spontaneously in the context of his visit as a friend, the over indulgence in alcohol and the possibility, as you told Mr Cummins, of a mutual sexual attraction of which you had not been previously aware.

30At the same time, you were the elder by many years, and knew that the complainant was intoxicated and you exploited that.  But it cannot be said that you possessed any sexual experience that exacerbated that exploitation.

31General deterrence is of primary importance in cases such as this.  Where a vulnerable young person is the victim of a serious crime, it would usually warrant prison term in all but exceptional cases.  But the need for general deterrence in this case is tempered by the particular circumstances as I have set them out.

32There is also a powerful combination of mitigating circumstances, not least of which is the belief by Mr Cummins that your risk of reoffending is low.  I can conclude that you have very good prospects for rehabilitation, because the offence was confined to a particular situation and the factors which facilitated your behaviour will most likely be addressed.  Accordingly, the need for specific deterrence is reduced also.

33I take into account the difficulties a prison sentence would impose upon you, given your vulnerabilities as identified by Mr Cummins.  He considers you would be both psychologically and sexually vulnerable in a custodial setting.

34Mr Briggs, you have been assessed as suitable for a community corrections order, which will provide you with the opportunity for the type of professional assistance recommended by Mr Cummins.  I will ask you to stand please and I will explain the details of the order to you.

35There will be a conviction recorded and the order will begin today and last for two years.  You will be under supervision and you must complete 40 hours of unpaid community over six months.  I have made this a moderate amount, on account of your extensive community contributions over many years.  You must be tested and, if necessary, treated in respect of alcohol use, and you will be required to undergo a sex offender program.  You must also be assessed for a mental health plan for psychological counselling.  You must report to the Community Corrections Office at 5 Elgin Boulevard Wodonga by 4 pm today.  Normally that would be within two working days, Mr Briggs, but I noted on the form that corrections officer suggested it should be by 4 pm today, so that is why I am saying that now.

36Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to this charge, I would have sentenced you to a four year community corrections order with 80 hours of community work.

37The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained.  Ms Price I did not note that you had any instructions about that.  Do you have those?

38MS PRICE:  Yes, I do.  He consents to that.

39HER HONOUR:  Consent, all right.  Mr Briggs, I only need to add that the police have the power to use reasonable force to obtain that sample if necessary, but I trust that will not be the case.

40Finally, pursuant to the Sex Offenders Registration Act, you must provide your details to the police every year for 15 years.  Now you will be given a form to sign for that matter and also for the community corrections order and my associate will approach you now.

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