Director of Public Prosecutions v Brookes (a pseudonym)
[2023] VCC 535
•4 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL BROOKES (Pseudonym) |
---
JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | WODONGA |
DATE OF HEARING: | 3 April 2023 |
DATE OF SENTENCE: | 4 April 2023 |
CASE MAY BE CITED AS: | DPP v BROOKES (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 535 |
REASONS FOR SENTENCE
Subject: Criminal law - sentence
Catchwords: Pleas of guilty to two charges of indecent assault of a person under 16, one charge of attempted indecent assault and one charge of committing an indecent act in the presence of a child under 16 – historic charges – complainants were nieces of accused aged between 3 and 10 years – accused aged in twenties and thirties - accused now aged 59 – borderline intelligence – likely diagnosis of long-standing ADHD - delay – effect on complainants.
Cases Cited: R v Bowen [2008] VSCA 33; Day (a pseudonym) v R [2021] VSCA 73; Mackie v R[2022] VSCA 28
Sentence: Total effective sentence 3 years and 9 months with non-parole period of 2 years 6 months. ---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
For the Accused | Mr A. Marshall (For Plea) Mr C. Patel (For Sentence) | KPW Lawyers |
HER HONOUR:
1Michael Brookes, you have pleaded guilty to two rolled-up charges of indecent assault of a person under the age of 16, one charge of attempted indecent assault and one charge of committing an indecent act in the presence of a child under 16.
2The complainant in relation to Charges 1 and 2 is your niece, and will be referred to as Complainant 1. The complainant in relation to Charges 3 and 4 is another niece, and will be referred to as Complainant 2. The offending occurred in the mid to late 1980s when you were aged between 23 and 31 years old. Complainant 1 was aged between four and 10 and Complainant 2 was aged between three and nine. At the time of the offending, you lived with your parents in a country town. The children were cousins, the daughters of each of your sisters who all visited the family home every weekend. You would play games with the children including “chasey” and giving them piggyback rides.
3The complaints by Complainant 1 relate to events between 1 January 1987 and 21 April 1992 at the family home. You were aged between 23 and 28 and she was aged between four and 10. You abused her sexually every time she visited by inserting your finger into her anus and sometimes into her vagina. On the first occasion when you gave her a piggyback, you inserted your finger into her anus, and you bounced her up and down inserting it harder causing her pain. Those incidents are described in the prosecution summary as uncharged acts providing the background to the offending which is the subject of Charges 1 and 2. You are being sentenced only for the charged acts.
4Charge 1 refers to two separate occasions each involving two incidents of penetration thus amounting to a rolled-up charge of four instances of penetration. The first was an incident in about November 1989 when you gave her a piggyback ride and you inserted your finger into her anus causing her pain. Later you inserted your finger into her vagina.
5The second incident was the last time Complainant 1 recalled you abusing her was in about November 1989. You were both in an open shed at the family home. You hugged her and placed your fingers under her shorts and underwear from behind, then inserted your finger into her anus. You then penetrated her vagina with your finger.
6This abuse continued every time Complainant 1 visited her grandparents but stopped sometime after 11 November 1989 when her family moved to a different address. You came to visit on an occasion after that move and while her mother was in another room, you grabbed her on the wrist, and she kicked you in the face causing you to have a bloody nose. Complainant 1 said in her statement that you never touched her again after that.
7Charge 2 relates to an incident which occurred in the loungeroom at the family home when you attempted to give Complainant 1 a piggyback. You volunteered this information when you were interviewed by the police saying it was the only incident that happened. When she fell onto the floor during the piggyback, you tried to rub her breasts and vagina, but she said 'No' and pushed you away.
8The offending against Complainant 2 occurred between 24 August 1986 and a date in 1994. You were aged between 23 and 31 and she was aged between three and nine. An incident involving uncharged acts occurred between 1986 and 1988 when she was aged three to four years in a shed at her grandparents' home. You took her top off and touched her chest and licked her chest, then rubbed your penis against her pelvic area.
9The incident giving rise to Charge 4 occurred when she was about 10 years old. You visited her family at their home. Her mother needed scissors but could not find any. You offered to get some from your mother's home, and you asked Complainant 2 if she wanted to go for a drive with you. At your mother's house, your parents were not home. Having found some scissors, you began to walk out of the house with her but you grabbed her and picked her up so she was facing you. You tried to kiss her on the lips but she turned her head so you kissed her cheek. You then walked around the room and threw her onto the floor. She landed on her back. You knelt down straddling her with a knee on either side of her thighs. You pulled her arms up over her head with your right hand and held them there. With your other hand, you started to pull down her shorts and underpants. Those are the details of Charge 4. You then began to unbutton your jeans and put your hand inside your underwear. As you did so, you loosened your grip on her arms and she freed herself by rolling from under you and ran out of the house. She ran towards a neighbour's property, and you followed her in the car. You pulled up and told her to get in the car. She agreed to do so as long as you never touched her again. You said, 'Good, get in the car'. She later told her mother she had a carpet burn on her leg, but her mother did not ask her how it happened.
10When interviewed by the police, you said you remembered this incident, that you had intended to touch her vagina, that you did not try to pull your penis out nor did you pull her pants down.
11You also told police about two further instances of sexually touching Complainant 2 which make up the rolled-up Charge 3, indecent assault. The first was on an occasion when you were playing chasey with the children. You told her to come and hide in the garden shed. You got her to remove her tracksuit pants and you touched her vagina. This stopped when her mother knocked on the shed door.
12The second occasion was when Complainant 2 was aged six or seven and she was alone in her bedroom at her home. You lifted her dress, pulled her underwear down and rubbed her vagina. You admitted to police that you told the children not to tell anyone about what you had done but you said you did not tell them that you would hurt them.
13The prosecution summary also includes references to uncharged acts described by Complainant 2 which provide some background to the other offending. Again, you are being sentenced only in respect of the charged acts. She told police that you had touched her on her chest under her clothing several times when she was less than nine years old but not after that. She also recalled an occasion when she was showering at her grandparents' house and looked up to see you looking directly at her, then you turned and walked away. Her grandmother had been out at the time and when she returned, Ferlin told her only to be told, 'Don't be silly'. Her grandmother went to speak to you and returned telling Ferlin that you were still asleep.
14The offending occurred over some six years, as I said before, from 1988 to 1994, covering many of the early childhood years of the complainants. You breached the fundamental trust placed in you as their uncle committing the abuse while playing games with the children, usually while their mothers and grandparents were present at the premises believing the children were safe in your care. There appears to have been the element of planning by you in ensuring the children were isolated from the adults when you abused them.
15You told the children not to tell anyone and they were fearful and too young to be able to assert themselves sufficiently to tell the other adults. For many years, they lived with what they have now described as guilt and shame. Your behaviour was both predatory and opportunistic and without regard for the feelings or wellbeing of the children. There was a degree of violence and pain inflicted on the children which has had a severe emotional impact upon them. Indeed, both complainants provided eloquent and moving victim impact statements setting out the very serious impact your offending has had upon them for many years.
16Complainant 2 in her victim impact statement described the impact of your abuse of her as having tainted everything in her life. She said it has taken a physical, emotional and psychological toll on her. As a child, she had an overwhelming feeling of dread when visiting her grandparents' house with her family for what had formerly been a happy and exciting experience. For a time, she lived at that house with her grandparents when you were still living there and she felt in constant fear and extremely unsafe. As an adult, taking part in the court process, she has had to return to describing her child experience which she has found very stressful.
17Complainant 1 read her statement to the court at the plea hearing. She stated that every aspect of her life has been affected by your abuse of her. She said she has lived in constant anguish as a child and continuing as an adult. She felt angry with her grandparents even though it was not their fault and similarly has felt angry with her mother. The abuse has had a serious impact on all those relationships, including her son's inability to form a close relationship with his great grandparents while they were still alive.
18Complainant 1 said she has been medicated for anxiety, depression and post-traumatic stress disorder for over 20 years and cannot explain to her son why she is often unwell or distracted by feelings of guilt and shame. Following suicide attempts as a teenager to avoid the pain, she has pursued many treatment therapies but has not been able to overcome the effects of the abuse.
19Both statements reveal the tragic and far-reaching consequences of your offending. The law presumes that children are harmed by these acts and in this case, the complainants' statements have provided the very sad proof of that harm.
20You are a 59-year-old single man now living alone but having lived with your parents for many years. Your father died some years ago and since then, you have helped your mother who died last year. You had had learning difficulties at school. In June 2022, a clinical psychologist, Ms Laura Fleming, noted evidence of intellectual impairment. Soon afterwards, you were assessed by a neuropsychologist, Mr Martin Jackson, to investigate this possibility. Mr Jackson noted that despite a very limited education, you have had a good working history until forced to retire owing to a physical injury that involved requiring a hip replacement. You had a second hip replacement in December 2022.
21Over the years, you were a lawn bowls player and volunteered with two significant regional community service organisations. You ended that involvement when you were charged with these offences. The allegations against you have become known in the community and you were effectively ostracised. This has consigned you to a lonely life. Your only contact with other people seems to be through the local Men's Shed where you have befriended another man.
22You have no previous convictions and have never been in trouble before.
23Tests administered by Mr Jackson disclosed an IQ of 75 which he said is in the borderline range but with an immediate memory span in the extremely low range. Mr Jackson also noted a mild disorder of impulse control and monitoring as well as symptoms suggesting very severe depression, severe anxiety and moderate stress. He noted that your anxiety and depression have improved over time and you do not need treatment.
24In summary, Mr Jackson said you do not have an intellectual disability. The test results do suggest that you suffer from attention deficit hyperactivity disorder, and you have done so since early childhood. Mr Jackson strongly recommended that you be referred to a specialist in that field for possible formal diagnosis and treatment. He pointed out that such a diagnosis is not associated with sexual offending per se and that the mild disorder of impulse control and monitoring is not to such a degree that you cannot stop yourself from acting; rather it can cause you to be somewhat socially inappropriate.
25Your plea of guilty means you are entitled to a discount on your sentence as a trial has been avoided. Importantly, that has spared the complainants and other witnesses from giving evidence and being cross-examined in a trial, although one complainant did give evidence at the committal hearing. It has also avoided the expense and inconvenience that a trial involves, particularly at this time when the court is still affected by the backlog of cases owing to the COVID-19 pandemic.
26When interviewed by the police, you made a number of admissions to the extent that you made police aware of offending that was not the subject of any complaint. I take that into account. The offending first occurred more than 30 years ago and the statements from the complainants were taken in 2014 and 2020. Mr Marshall submitted on your behalf that you have effectively rehabilitated yourself having led a blameless life ever since and having made yourself useful in the community.
27The age of the offending means that a suspended sentence is available as a disposition. Mr Marshall's submission for a partially suspended term of imprisonment or for a Community Correction Order on the basis that a sentence at the higher end of the range would not be appropriate because of your circumstances. He further submitted that the long delay since the reporting of the offending should be taken into account in mitigation together with the other mitigating factors and should justify a more lenient sentence. Mr Marshall referred me to the decision in Mackie v R where delay meant an accused was in a state of uncertainty for several years. It was held that he was entitled to a sentencing benefit because of that. It has been described elsewhere as a powerful mitigating factor.
28In R v Bowen, the long delay was criticised by the court and taken into account as a mitigating factor but in Day v R, a similar long delay was rejected by the sentencing judge as a mitigating factor and the appeal against sentence did not succeed.
29In your case, Mr Brookes, the delay should not be disregarded and I do apply some weight to it, particularly given that you have suffered ostracism from your community during the years since the offending became known and that has amounted to a form of punishment. At this stage, I note there is no indication of remorse. That is consistent with the fact that the two psychological reports were provided before a sentence indication hearing in November 2022 and your plea of guilty was entered soon after that.
30The submission on behalf of the prosecution is that only a term of imprisonment comprising a head sentence and a non-parole period is appropriate. General deterrence is of great importance in cases like this given the potential for harm and indeed the presumption of harm. Such harm may be greater when committed by a family member because of the impact of breach of trust and the likelihood of a consequent effect on the rest of the family as has occurred in this case.
31Sexual offending against children is very serious criminality and the community regards it with particular abhorrence. That should be reflected in the sentence imposed. This court should firmly denounce your offending as an important component of the sentence.
32Because of your age and the fact that you have led an unblemished life since the offending, the likelihood that you will reoffend in this way is low and so the issue of community protection need not be a feature of sentencing other than in terms of general deterrence. The need for specific deterrence is similarly reduced.
33I have carefully considered your counsel's submissions as to leniency and have concluded that any option involving a non-custodial sentence, or a partially suspended sentence is inadequate in all the circumstances.
34I sentence you as follows. Would you stand now please, Mr Brookes?
35For Charge 1, indecent assault of a person under 16, two years' imprisonment.
36For Charge 2, attempted indecent assault, six months.
37For Charge 3, indecent assault of a person under 16, two years.
38For Charge 4, indecent act in the presence of a child under 16, two years.
39The sentence for Charge 1 is the base sentence for purposes of cumulation. I order that nine months of each of the sentences for Charges 3 and 4 and three months of the sentence for Charge 2 be served in cumulation upon the base sentence. This results in a total effective sentence of three years and nine months.
40I order that you serve a minimum period of two years and six months before being eligible for parole. If you had pleaded not guilty, I would have sentenced you to four years' imprisonment with a non-parole period of three years.
41In relation to Charges 3 and 4, you are sentenced as a serious sexual offender, but the prosecution does not seek a disproportionate sentence. You will also be registered on the Sex Offenders Register and you will be required to provide your details to police every year for the rest of your life. I think that document will be ready for your signature now.
42Madam Associate, would you take that to Mr Brookes please? Mr Patel, would you like to accompany my associate to the dock?
43MR PATEL: Yes, of course.
44HER HONOUR: Mr O'Doherty, is there anything I have omitted or neglected?
45MR O'DOHERTY: No, Your Honour.
46HER HONOUR: Thank you. Mr Patel, is there anything further?
47MR PATEL: No, thank you, Your Honour.
48HER HONOUR: Thank you.
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