Director of Public Prosecutions v Bromley (a pseudonym)

[2023] VCC 382

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

AT LATROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL BROMLEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 March 2023
CASE MAY BE CITED AS:	DPP v Bromley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 382

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pathmaraj
For the Accused	Mr M. Brogden

HIS HONOUR:

1       Mitchell Bromley, you have pleaded guilty to one charge of incest and one charger of producing child abuse material.

2       Those crimes carry maximum penalties of 25 years and 10 years, respectively.

3       You pleaded guilty at the earliest reasonable opportunity and indeed, made substantial admissions to police when being interviewed.

4       I accept that your plea of guilty is accompanied by appropriate remorse and there is evidence to that effect and indeed, a sense of shame.

5       You clearly must get the utilitarian benefit of the plea of guilty.  Whilst your record of interview really took away any opportunity to dispute the matter, it clearly saved your daughter, the victim, from giving evidence and even further trauma than what she had suffered.

6       This plea comes at the time of Worboyes and I am well aware of the circumstances surrounding that case, that a plea of guilty in these circumstances must receive a discount which is observable, effectively.

7       I also take into account you have now been on remand for a period of 219 days and that has been done in gaol, still within the time of COVID and I take that into account.

8       You do have very significant prior convictions.  Back in 2006, you were sentenced to be imprisoned for 18 months with 15 months of it suspended for the sexual penetration of a 14 year old girl.  You at that time were 22.  You apparently filmed that and it was watched by a co-accused.  I do not know the other circumstances of it but at that time you were placed on the Sex Offenders Register for life and you remain there, obviously.

9       The circumstances of the offending are that you, at the time of the offending, were 38 years of age and your victim was your 16 year old daughter.  She is your biological daughter.

10      On the morning of 31 July last year, the two of you prepared her motor bike for a ride and drove to an off track road near Swan Hill.  You arrived in the early afternoon, took the bike off the back but it would not start.  You obtained a camera from your vehicle, took several photographs of her posing on the bike and they were taken from the front.  You then walked behind her and told her to stand on the bike.  You took further photographs from behind.  You then approached her from behind pulled down her tracksuit pants and underwear, so they were touching the bike seat.  You then took close-up photographs of her naked from behind.  That is Charge 2.

11      You then used your index and middle finger and rubbed the surface of her vagina and I understand now that it did include penetration and you conceded penetration.  You then removed your fingers and she said she wanted to go riding.  You put the camera down.  She kick started the bike and rode away.  She then received help from people.  She complained about the matter straight away.

12      You, having realised that she had seen other people, destroyed the photographs and that is to your credit.  It also very much ameliorates the offending, insofar as Charge 2 is concerned.

13      There are two victim impact statements in relation to the matter.  One, from your daughter, that is your victim - and this will be anonymised later obviously.  Well, the whole thing will be anonymised - and one from her mother.

14      Those victim impact statements really point out the evil of incest.  Your daughter says,

'I still feel angry and afraid and isolated because of what he did.  When the crime first happened I felt very angry that he lied to me.  I also felt really betrayed as when we were growing up he told me he wasn't the person that everyone was saying he was and said that he was changed and he could be trusted but he was lying to me my whole life'. 

15      She just goes to say how her sleeping habits have changed, how it impacted on her schooling.  It had an impact on her confidence in herself, impact on her perception of her own body and it has really impacted in terms of so far as the family is concerned, as to how it functions.

16      I note, for example, that your eldest daughter, her oldest sister has supported you and no longer talks to her natural mother.

17      That is the sort of thing that incest causes and one of the reasons why it is such an inherently serious charge.

18      Her mother said, 'I feel so many things.  I feel really frustrated, so sad, angry and devastated and heartbroken that my children had to go through this.  I now feel really isolated'.  She talks about how difficult it has been for her daughter going through this and she talks about her own aspects of guilt and the like, which again is so common in these sorts of situations.  She, in the end, hopes that her children or her daughters at least, will be able to get back, live their lives and get some sort normality back.  She says, there are limited people that her daughter feels comfortable with and she deserves to feel safe in her life and that is very true.

19      In the decision of R v MJ, Mr Justice Hedigan said, 'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.  The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross brief of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim'.

20      That decision was handed down nearly 30 years ago and it still holds good today.  I think it is one of the clearest descriptions of why incest is such a serious offence.  Indeed, it is what is known as a standard offence and the standard sentence for it is 10 years.

21      

I am well aware of the principles in the decision of Brown, that the standard sentence is a legislative signpost.  It does not affect my instinctive synthesis.

I take into account what comparable cases there are in relation to it and I then examined the matter objectively to see where it fits upon the theoretical at least, scale of seriousness.

22      I find it extraordinarily difficult in charges of incest or rape or anything like that to say to a victim, sorry but the damage done to you is at the lower end or something along those lines.  It is a disgraceful thing to ask a judge to do.

23      What I simply say is this and I hope if she is reading this or listening to this that she understands these are in legal terms, not necessarily my any suggestion that she has not been grossly interfered with.

24      The circumstances here are I accept that it was momentary, that it was unplanned, that the photographs were destroyed, that it was not the penile penetration.  In other words, there is no risk of disease or pregnancy or anything along those lines.

25      All those matters in my view make it towards the lower end but certainly not the lowest end of incest and accordingly I say that the sentence I impose will be significantly less than what the standard sentence is because of those objective factors.

26      The difficulty for you, Mr Bromley, is that you have done it before, not to a daughter but to a 14 year old girl.  That then has to be factored into the overall situation.

27      

You are a serious sexual offender on both the charges.  I am well aware that that means that the charges should be cumulative unless otherwise ordered.

I will be so otherwise ordering because reasons of totality demand that.

28      I accept that community protection becomes the principal sentencing purpose.  I certainly take that into account and insofar as the community is concerned you are a risk but that could be not so much by SORA apparently, because you have been on that for life.  But perhaps with the parole board we will be able to institute some sort of supervision and some sort of programs which reduce the risk to the community.

29      The Crown did not seek a disproportionate sentence and I would not have given one in any event.

30      However, general deterrence clearly play a very large part in sentencing for this offence.  Specific deterrents, it is going to be a matter for you.  If you want to do gaol again you can.

31      Denunciation obviously plays a part as well as appropriate punishment and I have already mentioned community protection.

32      The only question here is how long is the head sentence and what is the minimum term to be.

33      In these circumstances where there is a significant sentence to be imposed, I tend to and in your situation it seems the appropriate to give a lower than what might otherwise be the minimum term to allow the authorities to make proper assessments at the time it is suitable to them not me guessing some stage way out in the future.

34      Effectively, you seemed to have worked all your life, which is again as to your credit.  I have already mentioned that you have made the admissions and I am taking those into account as well.

35      Tendered on your behalf were letters of support from your eldest daughter, who continues to support you and who no longer talks to her natural mother.  That is exactly what incest does, in terms of the effect on other people.  There is also a letter from your partner, which is supportive of you and I accept that you have over the years been relatively active in the community.  You go to speedways and things like that and that is all to your credit.

36      I do not need to go into a long summary of your personal-circumstances.  You are now 39.  You were born in Bendigo.  You apparently Mr Bromley, you, yourself, were sexually abused by an adult when you were 11 years of age and again, when you were about 12.  It is often the situation when we are dealing with these sorts of matters.

37      It was pointed out to me that you do have three children from a previous relationship.  You have now had a partner who you with at the time this offending took place.  She remains supportive of you and you have worked up as a self-employed mechanic before the time of this offending.  At the actual time of this you were working as a tow truck driver in the Swan Hill area.

38      You have been on remand at Hopkins and I will leave that to the authorities but I will be taking into account that you have done your remand under COVID conditions.

39      To your credit, whilst in there you have done a number of courses.  You seem to have done whatever you could do and you have been working in cheap steel maintenance and making number plate brackets and fence posts.  That is to your credit that you are trying to use your time in that way.

40      There is a number of things that were pointed out to me, that you have been, again, up around the Swan Hill area part of the speedway community and for 14 years you have assisted in local community management.  You were formerly part of the residents and rate payers committee and you have played an active part in The Good Friday Appeal.

41      There is a family intervention order in place, where your daughter is protected person.  I assume that will stay in place but I dare say you have no desire to go anywhere near her or vice versa.

42      So far as your health is concerned, I am satisfied that you do suffer from chronic testicular pain as a result of complication from a vasectomy.  I am not sure exactly what the ramifications for that are for you in custody.  I am aware of you taking pain killers prior to that.  You apparently now take Panadol and Nurofen to manage pain.  Again, the gaol does have difficulties with what pain killing material it can use.

43      In any event, there is nothing that really gives rise to making it more difficult in gaol.  Hopefully, once you are sentenced you can undergo courses and you can start to do more than you already have done.

44      I have read the report of Mr Cummins.  He said you, 'Presented as very apologetic, embarrassed and moderately depressed'.

45      Additionally, he said, 'At interview, he expressed regret, remorse and victim empathy'.  Those things do give me some confidence as to rehabilitation but the problem here seems to be that though I find certainly there was no pre-mediation for this and it was a spontaneous act, it is clear that offence specific treatment is imperative.

46      Your sentences clearly will be of sufficient duration to enable you to undergo that course within the prison system.  I do not think there is really anything else I need to say.

47      The prospects of your rehabilitation are up to you.  The risk of you reoffending has been described as moderate.  Again, that is at being examined at the moment.  What is going to be like in a few years' time, I do not know.  So, I will be leaving that to the parole board.  But certainly, your prospects of rehabilitation are nowhere near extinguished.  You are only 39 and you can come back from all this.

48      In any event, taking into account all those matters and taking into account the helpful submissions that were provided by your counsel and the submissions of the Crown you are sentenced to imprisoned as follows.

49      On Charge 1, five years.

50      On Charge 2, three months to be served concurrently with the sentence on Charge 1.

51      That gives a total affective sentence of five years imprisonment.

52      I direct that you serve a minimum term of three years until becoming eligible for parole.

53      I direct that 219 days be reckoned as having been served under this sentence and I say that but for your plea of guilty, which is difficult here because the admission is involved.

54      But had you for example, denied this and fought it out and lost you would have been sentenced to be imprisoned for a period of seven and a half years with a minimum term of five.

55      There is no other orders I need to make, gentlemen?  No?

56      MR PATHMARAJ:  Your Honour, just formally Your Honour will, in my submission need to record that he has fallen to be sentenced as a serious sexual offender on Charges 1 and 2 on the records of the court but apart from that nothing further.

57      HIS HONOUR:  Yes.  I direct that, obviously.  I have already said I have done it.  So, I direct that that be placed on the court record.  Thanks for that.  All right.  Nothing else?

58      MR PATHMARAJ:  As Your Honour pleases.

59      MR BROGDEN:  As Your Honour pleases, no, nothing else, Your Honour.

60      HIS HONOUR:  All right.  Do you need to talk to your client?  I can leave the court and my tippy can organise that for you if he wants to.

61      MR BROGDEN:  Thank you, Your Honour, just very briefly but - - -

62      HIS HONOUR:  Yes, of course.

63      MR BROGDEN:  Thank you.

64      HIS HONOUR:  That's no problem.  Yes.  Thanks, gentlemen.