Director of Public Prosecutions v Brook

[2017] VCC 1335

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-17-00699

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BROOK

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	15 September 2017
CASE MAY BE CITED AS:	DPP v Brook
MEDIUM NEUTRAL CITATION:	[2017] VCC 1335

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Ms K. Youngson

HER HONOUR:

1John Alexander Brook, you have pleaded guilty to two charges of indecent assault, Charges 1 and 2.  The maximum penalty for that offence is five years' imprisonment.

2The prosecutor made application for the taking of a forensic sample from you.  The making of that order was not opposed, but I do not consider it justified in the circumstances, and that application is refused.

3The circumstances of your offending are set out in Exhibit A, which is the Prosecution Opening for Plea.  In brief, the circumstances are as follows. The charges as expressed in the indictment cover the period 1988 and 1989.  It appears from the prosecution opening that the offending occurred in 1989.  You were friends with the victim's family and would on occasion visit them in country Victoria.  At that stage, the victim was ten or 11. On one occasion, the victim's mother went interstate for a few days, leaving the victim and siblings in the care of their father.  You were also staying there at that time. 

4On an occasion during this time, you and the victim were watching TV.  The victim was lying on the floor. You were sitting on a couch behind her.  You had bare feet.  You put your foot into her shorts and wiggled your toes inside the external parts of the victim's vagina (Charge 1).

5On another occasion, at night-time, you were sitting on the victim's bed.  She was in bed but awake.  You began to massage her lower spine. You put your hand down the back of the victim's pyjamas and underwear and continued that rubbing.  You then put your finger in the victim's vagina and rubbed her vagina on the top and inside the external parts of the vagina (Charge 2).

6The victim wrote a note to her mother some days later complaining about these incidents, and the victim's parents told you never to come again.  The victim's mother also contacted an organisation that works with victims of sexual assault, because she was worried about her daughter, whose behaviour had changed.  The victim's mother says she was told not to go to the police, because the victim's evidence would not be accepted because of her age.

7The victim ultimately decided to go to the police herself in April of 2014.  On 4 March 2015, the victim rang you, and the conversation was recorded.  The victim said she needed closure, and you apologised.

8On 15 October 2017, the police interviewed you.  You made admissions as to the general circumstances but made no comment in respect to the specific allegations.  You were charged on 21 September 2016. The case was listed for a committal hearing on 6 April 2017.  You indicated your plea of guilty.  It is accepted that that was the earliest opportunity for you to indicate that plea of guilty in a formal sense.

9Two Victim Impact Statements were tendered. Each was read in court.  Exhibit B was the Victim Impact Statement of the victim, and Exhibit C was the Victim Impact Statement of the victim's mother.

10The victim in her statement described the impact of your offending on her.  That impact has been clearly traumatic and distressing.  The victim developed anxiety and depression from an early age, culminating in a suicide attempt when she was 18.  She suffered very badly from post-natal depression after the birth of each of her two children. The victim describes the impact of her anxiety and depression and need for treatment.  She explains that that has had a negative impact on her work prospects, and also has caused financial cost because of the need to obtain treatment.

11An attached letter from a psychiatrist who has been treating the victim in 2011 says that your offending "had a significant impact on her entire life".  In recent times, the victim has been exhibiting symptoms of post-traumatic stress disorder.  The psychiatrist also describes the stress that these criminal proceedings have caused to the victim.  Earlier this year, the victim had two hospital admissions, which the psychiatrist says were for stress and the need for change of treatment. The psychiatrist describes therapy programs that she hopes will assist the victim.  She says "I hope the end of the case will provide her some ability to work over her symptoms and come to a better solution of symptoms". 

12Also attached was a report from a psychotherapist who has been working with the victim since 2011.  The psychotherapist describes the post-natal depression that the victim suffered and her anxiety, which the psychotherapist is partly, if not fully, attributed to the history of childhood sexual abuse. The psychotherapist says the victim's life has been constantly hampered by "disturbing memories, anxiety and sadness, feelings of self-doubt, low self-esteem, therapy and hospital admissions in a psychiatric unit".

13In the victim impact statement from the victim's mother, she says "Having one's daughter abused by a trusted friend is traumatising".  She describes the emotional impact on her, including the negative effect of the consequences of your offending on her marriage. The victim's mother says that there was an almost immediate change in her daughter physically and emotionally from the time of your offending, and that she was unwell from then on.  The victim's mother has clearly provided support for her daughter and her grandchildren.  She remains concerned for her daughter and for her daughter's children because of the victim's mental health situation. The victim's mother says that she has been through 30 years of heartache, emotional stress, massive anxiety, and major financial consequences. 

14In sentencing you, I have taken into account your personal circumstances.  Your personal circumstances were outlined in written and oral submissions by defence counsel. You are now 70 years old.  You live in Brisbane, as you have for many years.  You grew up in an apparently stable family.  You were very successful at sport at school.  You had some opportunities for tertiary education, but after travelling a great deal, you settled into work as a taxi driver.  You had a taxi licence for some years.  You sold that, and then worked as a part-time taxi driver until your retirement. 

15You have been married and divorced twice.  You have three children with your second wife, who are now 18, 15 and 11.  You also have an older stepdaughter, who is your second wife's daughter.  You have no prior or subsequent criminal history.

16In sentencing submissions, your counsel submitted that a community correction order or a suspended sentence of imprisonment would be the appropriate sentence.  Your counsel addressed the circumstances of the offending, but said that you had little memory of the events, but that you accepted and admitted the offending.

17You have said that at the time, you were using marijuana, and you believe the effect of the marijuana led you to the offending, which you say is out of character. 

18Your counsel relied on a number of matters in mitigation of sentence, and in support of the submission that any sentence of imprisonment ought be suspended.  The facts that your counsel relied on included:

your remorse;

your plea of guilty and cooperation;

your good character;

your work history;

your current health and mobility issues;

your current domestic situation;

that the offending was out of character;

your rehabilitation;

delay.

19Your counsel submitted that you pose no risk to society because of your rehabilitation and your age, and other matters.  Your counsel submitted that the potential impact on your two younger children of imprisonment would cause them exceptional hardship.

20The prosecutor in sentencing submissions addressed the seriousness of your offending.  The prosecutor submitted that there were aggravating features of the victim's age and the long-term impact on her of your offending.  The prosecutor queried the genuineness of your remorse in the phone conversation which was recorded with the victim.  The prosecutor submitted that the delay was not unusual.

21The prosecutor submitted that a sentence of imprisonment was the appropriate sentence for the purposes of denunciation, just punishment and general deterrence.  He also submitted that the situation in respect to your children would fall short of exceptional hardship.

22John Brook, this was clearly serious offending.  The victim was a young girl.  On two occasions, you indecently assaulted her, involving some penetration of the vagina.  You were much older.  On the second occasion, your offending involved using your fingers, and in her bedroom at night.  That must have been extremely distressing for the victim.  You abused her trust and the trust of her parents. 

23The harm caused to the victim and her family has been immense.  On the basis of what the victim says, her mother says, and very importantly what the treating professionals say, I am satisfied that the victim's mental health difficulties are in very large part due to your offending.  The victim in particular continues to suffer as a result of what you did so many years ago.  Very sadly, this case demonstrates again the long-lasting harm that is very frequently the result of childhood sexual abuse.

24I consider that your offending is towards the higher end of indecent assault.  A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment, and general deterrence. 

25I have taken a number of matters into account in mitigation of sentence.  You have pleaded guilty, that plea of guilty has saved the trauma and cost of a trial.  I consider your plea of guilty to be an expression of genuine remorse.  I consider that your apology in the phone conversation was genuine.  Your response in the record of interview, in my view, of no-comment with a reference to legal advice do not detract from that conclusion.  I also note that you apologised in a letter which was read in court.

26You have cooperated with the authorities.  You are effectively rehabilitated.  You are a person who is of considerably mature age. You have spent many years since this offending working, raising a family, and caring for your mother for a brief period of time.  You have been supportive towards your children and your stepdaughter.  You cared for your mother for some time before her death. 

27You are in my view no current risk to the community.  You have a lack of criminal history.  This offending I accept was out of character.  The use of cannabis may provide some context, but is not a matter of mitigation.  You made the decision to do what you did.  Whether or not it was cannabis or any other substance such as alcohol which had reduced your inhibitions.  You are the one responsible for this. 

28You have a lengthy work history.  References were tendered from family friends, who have been longstanding friends, and who say that you have never behaved inappropriately as far as they have seen you in your interactions with their family.  You also had an excellent work reference.

29In respect of delay, I do not consider that this matter has been hanging over your head since the time of the offending and the victim's parents told you to stay away.  There is nothing to suggest that you subsequently were worried about the possibility of criminal prosecution.  The matter has been hanging over head in the two years since you were charged.  I take that into account, although it is not a particularly significant sentencing consideration in this case.

30You have some current health and mobility issues, due to having broken your hip twice.  I consider that to be a matter that could be managed in custody. 

31In respect of the issue of exceptional hardship in respect of the children, my conclusion is that a combination of factors in respect of your two younger children do lead to a conclusion that they would be caused exceptional hardship if you were incarcerated.  Your 15-year-old son lives with you and will not live with his mother.  He has stopped going to school, and there has been police involvement with him, including allegations of drug activity.

32In addition, and significantly, you face a difficult situation with your 11-year-old daughter, who has Down syndrome.  She has been engaging, amongst other things, in speech therapy.  The exhibits tendered from the speech pathologist confirm your involvement and participation in the speech therapy programs with your daughter.  Those exhibits also confirm the importance of that program to your daughter's continued development.

33On the basis of that material, I accept that you are very significantly involved, and that your ex-wife is not engaged at all in that program.  If you were incarcerated, your daughter could live with your ex-wife, but would not receive the support she needs with her very-important speech therapy program.

34I have considered sentencing practices for historical sexual offences such as this.  I received some assistance from the summaries that are set out in the Victorian Sentencing Manual.  There are clearly a range of sentences that have been imposed in such cases.  Every case is different from every other case, a range of sentences from many years' imprisonment to suspended sentences, and on occasion, a community correction order.

35Despite the seriousness of your offending, in circumstances where you are now rehabilitated, are elderly, or going towards elderly, have pleaded guilty, have expressed remorse, and constitute no risk to the community, together with the potential exceptional hardship to your two younger children, I consider that it is appropriate to wholly suspend any sentence of imprisonment to be imposed.

36The sentence, although it will be a suspended sentence of imprisonment, remains an important expression of denunciation, just punishment and general deterrence.  There has already been some negative impact on you as a result of being charged.  There will be even greater impact, I would think, once you have been sentenced to a term of imprisonment for this type of offending.  Could you please stand?

37On Charge 1 of indecent assault, you are convicted and sentenced to 15 months' imprisonment.  On Charge 2 of indecent assault, you are convicted and sentence to 18 months' imprisonment.

38The sentence on Charge 2 is the base sentence.  Six months of the sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2.  The total effective sentence is two years' imprisonment.  That sentence is wholly suspended for a period of three years.  That means during the next three years, if you commit any offence for which imprisonment is a potential penalty, you can be brought back to court and resentenced.  And unless there are exceptional circumstances, you would be sentenced to serve a period of imprisonment.

39Because the two offences that you committed are Class 1 offences, you will be subject to the serious sex offender registration reporting requirements for the period of life.  In a moment, my associate will come with Ms Youngson and ask you to sign some paperwork, and you have to sign to show that you have received the paperwork. 

40But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. 

41Now, nothing this court can do can make up for what suffering has occurred over so many years. I understand that the victim, her family and her supporters may not agree with this sentence.  I do hope that at least the completion of the criminal process will in some part enable this very courageous victim to feel more emotionally free to pursue and engage in treatment options that will assist her to have a more contended and happier life, for her own sake and the sake of her children.

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