Director of Public Prosecutions v Broadbent (a pseudonym)
[2020] VCC 772
•5 JUNE 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENIS BROADBENT (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 MAY 2020 | |
DATE OF SENTENCE: | 5 JUNE 2020 | |
CASE MAY BE CITED AS: | DPP v Broadbent (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 772 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent assault on a child under 16 – gross indecency with or in the presence of a child under 16 – plea of guilty – psycho-sexual immaturity – mercy
Legislation Cited: Sex Offender Registration Act 2004
Sentence: 35 months’ imprisonment wholly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. Turner | Victoria Legal Aid |
HIS HONOUR:
1 Denis Broadbent[1], on 11 March 2020, a jury was empanelled to try the charges contained in Indictment J11302519.1. The indictment contained 13 charges, being four charges of indecent assault on a child under 16 (Charges 1, 3, 5 and 7), six charges of gross indecency with or in the presence of a child under 16 (Charges 2, 4, 6, 8, 11 and 13) and three charges of sexual penetration of a child under 10 (Charges 9, 10 and 12). These charges were said to arise out of five incidents.
[1] A pseudonym.
2 Upon arraignment you pleaded guilty to Charges 1 through to 4, both inclusive, and not guilty to the balance of the charges on the indictment. The basis of your pleas to Charges 1 through to 4 arose out of your record of interview that was conducted on 7 July 2017 wherein you admitted that when visiting the victim’s home in Maryborough you offended against him on two occasions, being Charge 1, indecent assault, in that you masturbated your victim’s penis and that on the same occasion your victim masturbated your penis, which was the subject of Charge 2, gross indecency. You said on a second occasion that similar conduct occurred with you masturbating your victim, being the act the subject of Charge 3, and that your victim masturbated you, being the act that founded Charge 4. You were adamant in your denials that any other activity occurred.
3
In summary, your victim alleged that the conduct the subject of Charges 1 through to 8 continued over weeks when you were living in his home at Maryborough. Your victim swore that Charges 3 and 4 occurred some two days or so after the acts that founded Charges 1 and 2. No evidence was led in respect of Charge 5 and at the end of the Crown case that charge was taken away from the jury and a verdict of not guilty was entered. Charge 6 was said to have occurred on the same occasion as Charge 5 and was constituted by the victim masturbating you, which is an act of gross indecency. The victim swore that Charge 6 occurred some two weeks after the commission of Charges 1 and 2. The victim swore that Charges 7, 8, 9 and 10 took place on the one occasion some three to four weeks after the happening of Charges 1 and 2. Charge 7 was a charge of indecent assault where the victim swore that you masturbated him. Charge 8 was an allegation of gross indecency where the victim masturbated you. Charge 9 was an allegation of sexual penetration of the victim by you, but no evidence was led in support of this charge and at the end of the Crown case the charge was taken away from the jury and a verdict of not guilty was entered.
Charge 10 alleged an act of sexual penetration of a child under the age of 10 years where you introduced your penis into your victim’s mouth and the jury returned a verdict of not guilty in respect to this charge.
4
Charges 11, 12 and 13 were alleged to have occurred on the same occasion and some 12 months or so after the commission of Charges 1 and 2. Charge 11 alleged an act of gross indecency wherein your victim masturbated you. Charge 12 was an allegation of sexual penetration of a child under 10 years in which you introduced your penis into the anus of your victim and Charge 13 was an allegation of gross indecency where you masturbated in the presence of your victim. The jury returned verdicts of guilty on
Charges 11 and 13 and acquitted you on Charge 12.
5 Accordingly you were convicted on Charges 1, 2, 3, 4, 6, 7, 8, 10, 11 and 13, being charges of indecent assault on a person under the age of 16 years and acts of gross indecency with or in the presence of a person under the age of 16 years. You were acquitted either by direction or verdict in respect of Charges 5, 9, 10 and 12, Charges 9, 10 and 12 being allegations of sexual penetration of a child under the age of 10 years.
6 The Crown relied upon tendency evidence based on allegations made by your victim that each of the acts that constituted charges on the indictment at the time of your arraignment were committed repeatedly and this included acts of indecent assault on a person under the age of 16, gross indecency with or in the presence of a person under 16 and sexual penetration of a child under the age 10, constituted by oral and anal penetration.
7 In respect to Charges 11, 12 and 13, it was alleged that Charge 12 occurred first in the sequence of that lot of offending and that Charge 12 occurred around 12 months after the commission of Charges 1 and 2. As previously noted, you were acquitted of Charge 12.
8 As a result of the mixed verdicts I am obliged to come to a view as to the factual basis upon which you should be sentenced consistent with the jury’s verdicts.
9 On 19 March 2020, the day after the jury returned its verdicts, I heard submissions from counsel in respect to the proper factual basis for sentencing you. Ultimately I am of the view that as the jury convicted you in respect of counts of indecent assault and gross indecency, based on time frames sworn to by the victim, it is appropriate to sentence you on the basis that Charges 3 and 4 occurred two days after the commission of Charges 1 and 2 and that Charge 6 occurred two weeks after the commission of Charges 1 and 2 and that Charges 7 and 8 occurred three or four weeks after the commission of Charges 1 and 2. Further, your victim identified the time at which Charges 11 and 13 were committed by you by reference to the time of the commission of the act of anal intercourse which was the subject of Charge 12 and of which you were acquitted. A finding that your offending occurred over a period of approximately 12 months is an aggravating circumstance of your offending and before I could make that finding I would need to be satisfied of it beyond reasonable doubt. In my opinion, the consequence of the jury’s verdict on Charge 12 is that I am unable to find beyond reasonable doubt that the acts that founded Charges 11 and 13 occurred, save that they occurred subsequent to the commission of Charges 7 and 8.
10 A consequence of my finding is that any evidence of uncharged acts in respect to mutual masturbation which is the factual basis for the counts upon which you were convicted must be limited to a period of something in excess of four weeks but how much longer than four weeks I cannot be satisfied beyond reasonable doubt. Therefore, I must sentence you on the basis that your offending was committed over at least four weeks but ceased at a time unknown after that period.
11 In respect to the victim’s allegations of repetitive uncharged acts of the kind that you were convicted of, his allegations were based on the premise that you resided with him in his family home at Maryborough and shared a bedroom with him. These circumstances allowed for repeated offending against your victim.
12 In your record of interview, you told police that you resided at Nhill at the relevant time and only visited Maryborough from time to time. This version of events was corroborated by the victim’s mother, who was called on the trial. Based on the jury’s verdicts and the evidence of your victim’s mother, I could not be satisfied that you resided with the victim in his home for a period of 12 months as he asserted but rather that on occasions you visited the victim’s home in Maryborough. I find that it is on those occasions of your visits to Maryborough that you offended against your victim and that the period of your offending is more than four weeks and that it ceased at some time indeterminate but subsequent to the commission of Charges 7 and 8.
13 Accordingly the only appropriate basis to sentence you in conformity with the jury’s verdicts and the evidence of the victim’s mother is to sentence you on the charges upon which you were found guilty by the jury as individual acts and not in the context of repeated uncharged acts of a similar nature.
14 On 19 March 2020, you were remanded on bail for plea to be conducted on 22 May 2020. At the plea hearing, tendered as Exhibit A, was the victim’s impact statement. Your victim wrote of experiencing depression and anxiety as a result of your offending against him. Further, he experienced feelings that it was his fault that he was offended against. Your victim described the consequences of your offending against him as a constant cloud of low feelings and moods that hung over him. Your victim has struggled with relationships and maintaining friendships with people because he has difficulty trusting anyone. Your victim is angry about the breach of trust that results from your offending against him. Your victim dropped out of school and admitted to turning to drugs because of the feelings he experienced as a result of your offending against him. Generally, he has trouble coping with life.
15 Your offending against your victim has had a profound and permanent effect on him. However, it is likely that the contents of the victim’s impact statement relates to the entirety of the evidence he gave in respect to you. That is not the basis upon which you will be sentenced. To some extent I must make allowance for this. However, it does not in my view diminish the reality that your conduct towards your victim has adversely affected him.
16 The maximum penalty for indecent assault on a person under the age of 16 years is five years’ imprisonment, while the maximum penalty for gross indecency with or in the presence of a person under the age 16 years is two years’ imprisonment.
17 Denis Broadbent, you are 69 years of age and your offending occurred somewhere between 1985 and 1990, some 30 to 35 years ago. You reside in Nhill with your brother and sister in your family’s home. Save for the period that you resided in Maryborough you have always resided in your family’s home.
18 You are one of five children. However, your brother, died in 2008 and you have no contact with another brother, the father of your victim. Your parents are deceased.
19 As a child, you attended the Nhill Primary and High Schools. You attended high school for about one year as you were required to leave school to care for your grandfather for two years until he died. Thereafter you worked as a labourer at the Nhill Hospital. The length of this employment was not specified but I drew the impression that it was short lived. Subsequent to your offending you lived in Maryborough for less than a year and worked at the Tuckerbag and Safeway Supermarkets as a casual night shift shelf stacker. These have been your only periods of employment. Otherwise you have been in receipt of social security benefits.
20 Tendered as Exhibit 2 on the plea was the report of Mr Jeffrey Cummins, psychologist, dated 30 April 2020. You reported to Mr Cummins that you have never experienced any sexual conduct with any adult male or female. Mr Cummins opined that you suffer from no psychological illness or disability.
21 In respect to your physical health, approximately three years ago you underwent bilateral inguinal hernia surgery. However, the right-sided surgical procedure failed, and you experience discomfort as a result of that hernia. The surgical procedure failed within six months of surgery and you have put up with the discomfort of the hernia since that time although the hernia is capable of being remedied surgically within a period of six to eight weeks after consultation with your doctor should you have bothered to have consulted your doctor in respect of it.
22 You have availed yourself of the Commonwealth testing regime for bowel cancer and a test has returned positive which requires further investigation by way of colonoscopy although this has not taken place. You were a smoker for many years but have not smoked for somewhere between 10 and 20 years. You ceased drinking alcohol at about the same time.
23 On any view of the material, you are a most unsophisticated person.
24 Mr Cummins opined that you are a relatively emotionally immature person for your age. Based on a clinical assessment only, Mr Cummins concluded that you were most probably functioning within the upper limits of the borderline range of intellectual functioning. Mr Cummins further noted that you had obvious difficulties with long term verbal memory and some difficulties with short term verbal memory. Further, Mr Cummins was concerned that you may be suffering from symptoms of age-related dementia. In short, you are a very psycho-sexually immature person with low intellect but without intellectual disability.
25 Tendered as Exhibit 3 on the plea was a report from the Nhill Medical Centre that corroborated the matters I have set out in regard to your health.
26 In respect to your offending, it constitutes a gross breach of trust because you are the victim’s uncle. Your victim was aged between 8 and 12 years at the time of your offending and you were man in your thirties. You offended against your victim in his home where you shared a bedroom with him. Whilst your offending may have been opportunistic and situationally motivated and contributed to by your psycho-sexual immaturity, this is of little solace to your victim.
27 You have no prior or subsequent convictions. There is no suggestion that you have been involved in any other similar incidents. Upon interview you acknowledged your responsibility and described your offending the subject of Charges 1 through to 4 on the indictment. You entered pleas of guilty before the jury in respect of these charges. You must be given some benefit for those pleas of guilty. However, by its verdict, the jury did not accept that your admissions were fulsome and accurate as to the extent of your offending against your victim. Your pleas do represent some remorse.
28 In summary, you are 69 years old and of limited intellect and education. You are personally immature as well as psycho-sexually immature. Apart from a period of somewhere in the order of 12 months’ work in Maryborough when you were perhaps 40 years of age or so, you have never really had any employment. Effectively you have been in receipt of one form of social security benefit or another for your adult life. Save for the time that you resided in Maryborough, you have lived exclusively in the family home at Nhill with one or other of your siblings. Your only form of recreation until you ceased drinking alcohol was to have a few beers at the local hotel on a Saturday and to place a few bets at the TAB. The latter pleasure was denied to you to some extent with the closure of the TAB in Nhill and you have been obliged to travel to Horsham in order to place your bets. In many respects,
Mr Broadbent, you are a pitiable person.
29 The matters to which I have just referred however, do not reduce the nature of your offending, its seriousness nor its adverse effect upon your victim.
30 Public denunciation and just punishment must play important roles in the exercise of my sentencing discretion. You are an appropriate vehicle for the application of general deterrence. As you will be sentenced to a term of imprisonment in respect of each charge upon which you were convicted, on Charges 3, 4, 6, 7, 8, 11 and 13, you fall to be sentenced as a serious sexual offender and accordingly protection of the community is the principle purpose for sentencing you. However, against that is the fact that you are 69 years of age, live with your siblings in Nhill and are unlikely to offend again. This is particularly so in circumstances where you have no convictions of any kind apart from those resulting from the verdicts of the jury.
31 Mr Turner of Counsel, who appeared on your behalf, ultimately submitted that a wholly suspended sentence was within the range of appropriate sentences in all the circumstances of the case. Mr Buckland of Counsel, who appeared on behalf of the Crown, submitted that a sentence that involved some term of immediate imprisonment was called for in all the circumstances. In part, that submission was based on the Crown submission that there was a proper basis for finding beyond reasonable doubt that your offending continued over a period up to 12 months. Save for your offending, which occurred over a period of some 30 to 35 years ago, you have lived a crime free life, living in a small country town with little or no distraction from day to day. These factors when coupled with your psycho-sexual immaturity and low mental functioning, in my view calls for the exercise of mercy when constructing an appropriate sentence including the form in which it is to be served. Accordingly, I have determined to sentence you to a term of imprisonment that is to be wholly suspended.
32 Would you please stand.
33 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – nine months’ imprisonment,
On Charge 2 – four months’ imprisonment,
On Charge 3 – nine months’ imprisonment,
On Charge 4 – four months’ imprisonment,
On Charge 6 – eight months’ imprisonment,
On Charge 7 – 15 months’ imprisonment,
On Charge 8 – eight months’ imprisonment,
On Charge 11 – eight months’ imprisonment, and
On Charge 13 – eight months’ imprisonment.
34 I order that three months’ imprisonment in respect of each of the sentences imposed on Charges 1, 3, 6, 8, 11 and 13, together with one months’ imprisonment of the sentences imposed on each of Charges 2 and 4, be served cumulatively upon each other and upon the sentence imposed on Charge 7. This results in a total effective sentence of 35 months’ imprisonment. And I suspend the term of imprisonment for an operational period of 35 months.
35 I direct that it be entered in the records of the court that you were sentenced as a serious sexual offender in respect of Charges 3, 4, 6, 7, 8, 11 and 13.
36 I direct that you be subject to the provisions of the Sex Offender Registration Act 2004 for life.
37 In effect, Mr Broadbent, you have been sentenced to 35 months' imprisonment and I have wholly suspended that term of imprisonment for a period of 35 months.
38
Should you commit an offence punishable by imprisonment within the next
35 months you will breach this suspended sentence and you will come back for sentence to me. And unless you can demonstrate exceptional circumstances since the time of your sentence, you will be obliged to be sentenced to serve the 35 months' imprisonment. Do you understand?
39 OFFENDER: Yes, Your Honour.
40 HIS HONOUR: All right, please be seated. Now, my associate's going to bring to you some papers, Mr Broadbent, and those documents relate to the provisions of the Sex Offender Registration Act. By signing the documents you are acknowledging receipt of the documents and they set out your obligations under the act. Do you want to assist Mr Broadbent in signing those documents, Mr Turner?
41 MR TURNER: Yes, Your Honour.
42 HIS HONOUR: Thank you. Now whilst that is being done, I understand that a member of the media has come online to hear these proceedings. I simply remind that person of his obligation under the Judicial Proceedings Publications Act, in respect to the prohibition upon publication of any information that might lead to the identification of the victim in this matter.
43 Mr Broadbent, what is going to happen - please come out of the dock and sit behind your counsel.
44 Mr Broadbent, I have provided you with a copy of the documents that set out your obligations under the Sex Offender Registration Act. Comply with them, breaches of the provisions are punishable by terms of imprisonment.
45 OFFENDER: Yes, Your Honour.
46 HIS HONOUR: Adjourn the court to Wednesday, at 10.30 please.
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