Director of Public Prosecutions v Brooks
[2019] VCC 1582
•2 October 2019 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND JEFFREY BROOKS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 20 September 2019 | |
DATE OF SENTENCE: | 2 October 2019 (at Melbourne) | |
CASE MAY BE CITED AS: | DPP v Brooks | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1582 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Offender convicted of one charge of committing an indecent act with a child under the age of 16 and pleaded guilty one charge of making a threat to kill – total effective sentence of a combination 12 months’ imprisonment and a 2 year Community Correction Order – s6AAA declaration on Charge 13: 12 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Mortley | Victoria Legal Aid |
HER HONOUR:
1 Raymond Jeffrey Brooks, following a jury trial you have been convicted of one charge of wilfully committing an indecent act with a child under the age of 16, Charge 1 on the indictment. This charge carries a maximum penalty of 10 years’ imprisonment.
2 In addition, you are to be sentenced for one charge of making a threat to kill, Charge 13 on the indictment, to which you pleaded guilty. This charge also carries a maximum penalty of 10 years’ imprisonment.
3 The offending on Charge 10 and Charge 13 occurred on 4 December 2016. On that evening, you were alone with your victim. She was the nine year old daughter of your de facto partner, who was at the home of a neighbour nearby. Your victim’s evidence before the jury was that, after the younger children had gone to bed, you called her over to sit on the couch. The two of you were watching a movie. She was seated between your legs, which she described as being apart, and you grabbed her hand and made her touch your “rude spot” or “doodle” with her hand over the outside of your clothing and “made (her) keep touching (your) rude spot”.[1] She stated that her mother then came home and “caught (you) letting her do it”[2]
[1]VARE of victim made on 5 December 2016, Answer to Questions 13 to 15 and 17 to 24
[2]VARE of victim made on 5 December 2016, Answer to Question 118
4 The evidence before the jury from your victim’s mother was that she returned home from the neighbour’s house and, upon entering the lounge room, she saw you and her daughter, who were on the couch, both jump. She described you as having been lying down on the couch with your legs splayed apart so that your knees were wide open, but your feet were together and up on the couch. She described her daughter as sitting effectively in the middle of your legs with her back against one of your knees. She said her daughter was in an “L” shape. She was sitting on the couch, but her feet were up on your other knee. She thought straight away that something was not right because she had never seen her daughter sitting like that with you before. She stated that she sent her daughter to bed and went up and grabbed your groin area and felt that you had an erection. She stated your reaction was to say “Don’t touch it” and instantly pull away and to deny that you had an erection. She said that you claimed that it was your hand, but described that your hand was holding your pants on the side of your hip area. She stated that she challenged you and said, “It was not your hand. Why did you have [my daughter’s] hand there?” And you responded, “Oh, she was holding my hand.”[3]
[3]VARE of victim’s mother made on 5 December 2016, Answer to Question 91
5 Your victim’s mother then went to the bedroom and asked your victim whether something had happened. She initially denied it. However, after being reassured that she could tell the truth and nothing would happen to her, your victim stated, “He made me do it.”
6 After your victim told her mother that you made her do it, your victim’s mother confronted you. She yelled at you and told you to get out of the house. She stated that you kept saying that you did not do it and that her daughter was a liar. You then pushed past her and walked into her daughter’s bedroom and asked, “Did I do it?” She stated that her daughter said, “Yes, you made me do it.” You then stated, “She’s a fucking liar” and looked at your victim’s mother and stated, “I'm gunna slit her throat.”[4] The verbal abuse between you and your victim’s mother continued. At some stage it seems that you returned to the lounge area and, when your victim went to the kitchen to get a drink, her mother wrote a note and gave it to her, telling her to go out the back door and get help from the neighbour.
[4]Op. Cit., Answer to Question 27
7 In her VARE made on 5 December 2016, your victim had described how, after she revealed that you had made her touch your “rude spot”, you then “started on (her) and (were) saying ‘She’s a liar, she’s a liar’, saying that she was a liar, when (you’re) the one who’s being a liar.”[5]
[5]Answers to Questions 118 and 119
8 Under cross-examination at the special hearing, which was played to the jury, your victim stated, “He came in my room and started calling me a liar and said he was going to kill me and stuff.”[6] She had told police in her VARE on 5 December 2016 that her mother had written a little note saying, “Can you please call the police” and she put it up her sleeve and her mother said to jump the fence and give this to the neighbour, so she jumped the fence and went to the neighbour’s house. When the neighbour opened the door of her house, she went inside and bawled her eyes out and the neighbour called the police.[7]
[6]Special hearing on 21 November 2018, page 98, lines 17 to 20
[7]Op. Cit., page 4, Answer to Question 19
9 Evidence was given before the jury by a neighbour who lived two doors down. She stated that, on 4 December 2016, she had been on the phone to her grandfather when your name showed up as a missed call. She ignored it, and believed that you called another time, but she ignored that and kept speaking to her grandfather. Then she heard banging on her front window which was really loud, such that she thought the window was going to break. She went and opened the door and saw your victim. She stated that she looked terrified. She was shaking. She was crying in a way that sounded like she was trying to catch her breath because she had been crying so much. She gave her a drink of water but she did not say much and just handed her a card on which the words, “Call police please” were handwritten. She called the police and then received another call which identified you as the caller. She called you back and you asked if your victim was at her house and if she was okay. She stated that you sounded normal, but flustered at the same time. She said you sound normal, but not normal. She stated that you kept talking at a normal pace, as though nothing was wrong, but in your tone you seemed a bit flustered. She could hear screaming and yelling in the background and your victim’s mother was yelling not to let your victim come home as you had knives and were holding her hostage.[8]
[8]Trial Transcript (‘T’) 166-169
10 For the sake of completeness, it should be noted that you were tried on 10 other charges of committing an indecent act with your victim on occasions other than that on Charge 10. The jury returned verdicts of not guilty on those 10 other charges.
11 When interviewed by police on 13 December 2016, you denied having committed the offence charged as Charge 10, but admitted that when the victim’s mother called you a dog, you had called your victim a fucking liar and threatened to slit your victim’s throat because she was lying. You claimed that you had just said it in anger and were never going to do it. You seemed unsure whether you had had knives in your hand when you made the threat, however, your victim’s mother stated that you took possession of two kitchen knives after her daughter had left the house. You admitted that you locked the back door and probably the front door and stated that you had the knives because you were aware that your victim had gone to the neighbour’s house and “didn’t want him to get involved”. You stated that “If I open the door and he’s there and I got the knives in me hand, he’ll just piss off and leave us alone.”[9] You were not charged with any offending in relation to the possession of the knives.
[9]Record of Interview, Answer to Question 94, p 15
12 You gave evidence at the trial in which you denied the offending and repeated your version of events that the threat to slit your victim’s throat had only been made in anger. You claimed that you had not made that threat in the presence of your victim, but only to her mother after your victim had already left the house.
13 I am satisfied beyond reasonable doubt that you did utter the threat to slit your victim’s throat in her presence in her bedroom after you went in there to challenge her as to whether you had committed the indecent act. In this regard I note that the jury were satisfied beyond reasonable doubt that you committed Charge 10 and they were given directions that they were entitled to rely upon your threat to slit your victim’s throat as post-incriminating conduct in relation to that charge. The jury also heard evidence from the neighbour as to the state of your victim when she arrived at her house with the note asking her to call the police. The evidence of your victim’s state of great fear as observed by the neighbour, the evidence that her mother had been so alarmed that she sent your victim out the back door to call police and the evidence that, when you phoned the neighbour, your victim’s mother yelled in the background for the neighbour not to let her daughter back home, in combination, satisfies me beyond reasonable doubt that your victim was very frightened indeed because the threat to slit her throat had been made in her presence. In my view, in her VARE, when your victim stated in answer to Question 52 “then he just started on me and mum” she appears obviously upset when recounting what happened in her bedroom before she left the house to seek help from the neighbour, albeit that she did not mention the threat at that time.
14 You are presently aged 47 years, having been born on 13 December 1971. You come before the Court with no relevant prior convictions.
15 In a plea on your behalf by Mr Mortley, the Court was told that, after leaving school in Year 10, you completed your apprenticeship as an auto electrician and have always worked in skilled labouring work. Prior to your relationship with the victim’s mother, you had been married and, by that relationship, you had three children: two boys aged 23 and 25 years respectively, and a daughter aged 18 years. Your two sons were in Court to support you throughout the trial and plea hearing. Mr Mortley stated that, as the children were growing up, you were involved in coaching Under 14s football and cricket, and had set up a local Auskick event and were heavily involved in the local sporting community in and around Diggers Rest. You later supported the Sunbury Lions Basketball Club for which your daughter played. He also stated that you have always been fully employed and a letter from your former wife was tendered as Exhibit 1. She confirms your voluntary involvement in local community sporting events and that, as a fully qualified auto-electrician, you never hesitated to help family and friends when they had problems with their vehicles. She also states that your three children have grown up with a good work ethic. Both of your sons have completed apprenticeships and your daughter is studying at university and working part-time.
16 After the breakup of your marriage, in 2010 you commenced a relationship with your victim’s mother. Your victim was the child of an earlier relationship of hers. She was only two or three years old when you commenced the relationship with her mother and your evidence to the jury was that you treated her the same as your other children and were a father figure to her, even though she still had contact with her own father. Yourself and the victim’s mother had two other children, sons, who are now aged approximately eight and six years respectively. Mr Mortley stated that it had been a cause of regret that these charges resulted in the Department of Health and Human Services becoming involved and an Intervention Order was taken out prohibiting you from seeing the children. As a result, he stated that you had lost contact with your two sons by the victim’s mother.
17 Mr Mortley stated that at the time of the offending you had been working as a forklift technician at Tullamarine and commuting from Ballarat, which meant that you had 12 hour days. In or about 2015 you were diagnosed with depression and prescribed medication for it, but found that it did not help so ceased taking it. The youngest of your two sons, who was born in 2013, had problems with epilepsy and developmental delay and there had been a strain on the relationship with your victim’s mother because you were not at home to assist her with these problems. The relationship between yourself and the victim’s mother was described as a difficult one and you had undergone a period of separation from some time in 2013 until Easter of 2015, after which you all moved to Ballarat in order to be closer to the family of your victim’s mother.
18 Mr Mortley stated that, following the separation from your victim’s mother, you became very depressed and suicidal and linked in with your Aboriginal heritage, which you had not previously embraced. You went to an Aboriginal cooperative where you received some counselling and support and, after being off work for a couple of months, were able to return to work in March 2017. Apparently in the course of your employment as a forklift technician, you took a man from the Philippines under your wing, as he had very few links in Geelong, and have been of assistance in helping him to integrate into the community and were sharing a house with him prior to being remanded into custody after your trial. Up until then, you had been fully employed as a forklift technician with a company in Geelong and had started a new relationship a couple of months ago.
19 Mr Brooks, the offending of which the jury has found you guilty is serious, even though it may be regarded, by itself, as towards the lower end of the scale of this type of offending. To expose any child of the age of nine years to sexual acts is a violation of their innocence long before they are psychologically or physically equipped to deal with such things. Your offending had a particularly serious aspect to it in that you were almost 45 years old and you made a nine year old girl, to whom you were a father figure, touch you indecently. This was a gross betrayal of the trust of a child who was entitled to your love and protection, particularly since you were in a role of caring for and supervising her whilst her mother was out of the house. In addition, as I have already stated, I am satisfied beyond reasonable doubt that you did make the threat which is the subject of Charge 13 in the presence of your victim and I am satisfied beyond reasonable doubt that you did that to try to stop her from further disclosing your offending. To make a threat of that terrifying kind to a child is serious by itself. Taken in the context of having offended sexually against her and making it to frighten her into being silent about the offending is a serious aggravating factor.
20 You should be in no doubt as to the harm that you have done to your victim. In a Victim Impact Statement she spoke of feeling really uncomfortable and finding your conduct really gross. She also spoke of feeling really scared and missing school and being afraid that you would find her and hurt her. She mentioned that she has had to seek help in order to stop trying to harm herself as a result of what you did. She stated that one minute she can forget about what happened, but then it comes into her mind again. She hopes she never has to see you again because you have wrecked her life.
21 The victim’s mother has also filed a Victim Impact Statement stating that she feels gutted and guilty because she did not protect her daughter who, after your offending, tried to cut herself. Your victim’s mother has been suffering from anxiety and panic attacks, insomnia and lack of appetite and she, too, needed to see a counsellor. She described how the two sons that she had with you have no family now, apart from her, and she feels emotionally drained, wrecked and tired.
22 Your victim’s father has also filed a Victim Impact Statement stating that he is deeply upset that he failed to protect his daughter and describing how he felt powerless to help her when she was crying at his house and sad that his daughter feels unable to talk about things much with him. He states that your offending has made it hard for him to trust people around his children.
23 The sorts of consequences that are referred to in the Victim Impact Statements are common consequences of this type of offending. The two offences for which I must sentence you have torn your family apart.
24 In sentencing you, the Court must denounce your conduct and place emphasis upon general deterrence because, unhappily, offending against children in their very own home and attempts to silence them about such offending are common. Victims must feel vindicated and the principle of just punishment must apply.
25 In sentencing you, I take into account that you did plead guilty to Charge 13, even though I do not find it to be a remorseful plea due to minimisation of the circumstances surrounding it. I also take into account your otherwise good character. It is plain that you have been a good father to your two adult sons who have stuck by you. It is also plain that you have a good work ethic. Unhappily, people who are otherwise of good character are known to commit these types of offences. Your victim and your victim’s mother were put through cross-examination. Although the jury were not satisfied beyond reasonable doubt in relation to the other charges of indecent act upon which they returned verdicts of not guilty, they clearly did not accept your denial of offending on Charge 10 and I do not accept that the reason for your threat to slit your victim’s throat was simply anger and not an attempt to silence her about the offending which she had just revealed. It seems that you acknowledge through your counsel a need for anger management and counselling generally. Mr Mortley stated that, following your separation from the victim’s mother, you became suicidal, however, I have not had any material put before me in relation to any counselling you received or any medical history of depression, even though I am told that you saw a psychologist once a week for a period of 10 weeks.
26 As I have said, I consider that you have not shown true remorse for the threat that you made to your victim in that you minimised it in your evidence to the jury by claiming that it was not made in your victim’s presence and it was not made to silence her. In all the circumstances, given the breach of trust in relation to Charge 10 and the very serious aggravating nature of a threat to slit a child’s throat in order to silence her from revealing further your offending, I consider that the only appropriate sentence is one of imprisonment. However, if you do undergo treatment for your anger, as well as a sex offender program, it may well be that your prospects of rehabilitation are reasonable. For this reason, I consider that the Crown concession that a combination sentence of a term of imprisonment and a Community Correction Order is appropriately made and that is the sentence which I intend to impose.
27 On Charge 10, committing an indecent act with a child under the age of 16, you are convicted and sentenced to be imprisoned for a period of 6 months and to undertake a Community Correction Order for a period of 2 years.
28 On Charge 13, making a threat to kill, you are convicted and sentenced to be imprisoned for a period of 9 months.
29 The sentence imposed on Charge 13 is the base sentence. I direct that 3 months of the sentence imposed on Charge 10 be served cumulatively upon it. Thus, the total effective sentence imposed is 12 months’ imprisonment. I declare a period of pre‑sentence detention of 12 days to be time reckoned as already served under the sentence imposed this day.
30 The Community Correction Order which I intend to impose in relation to Charge 10 is for a term of 2 years. It will commence upon your release from prison. As I indicated at the plea hearing, I do not propose to impose an unpaid community work condition. The punitive aspect of your sentence is the term of imprisonment and the Community Correction Order is designed to be rehabilitative by ensuring that you undergo appropriate treatment for anger management as well as a sex offender program. I note that the report which assesses you as suitable for such a disposition (Exhibit “D”) recommends supervision. I propose to implement that recommendation by making it a special condition of the order as well.
31 The following terms are attached to the Community Correction Order:
(a) You must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment.
(ab) You must comply with any obligations or requirement prescribed by the regulations.
(b) You must report to and receive visits from the Secretary during the period of the order.
(c) You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force.
(d) You must notify the Secretary of any change of address or employment within two clear working days after the change.
(e) You must not leave Victoria except with the permission of the Secretary either generally or in relation to a particular case.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
32 In addition, the following conditions apply to the Community Correction Order:
(1)That you be supervised, monitored and managed as directed by the Secretary.
(2)That you undergo treatment and rehabilitation as directed by the Secretary in order to address your offending behaviour and, in particular, attend:
(a) an anger management program; and
(b) a sex offender program.
33 Mr Brooks, you must realise that I cannot make a Community Correction Order unless you agree to the terms and conditions. Do you agree to comply with the Community Correction Order with the terms and conditions which I have set out?
34 PRISONER: Yes, I do.
35 HER HONOUR: You must understand, Mr Brooks, that if you contravene any of the conditions of the Community Correction Order which will commence upon your release from custody, then that in itself is an offence punishable by a maximum of 3 months’ imprisonment. Should that occur, you will be brought back before this Court and it is possible that, depending upon the circumstances, the Community Correction Order will be cancelled and you will be ordered to serve a term of imprisonment instead.
36 On both Charges 10 and 13, I order pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that these orders are warranted by reason of the seriousness of the circumstances of the offences, together with the fact that they are not opposed by you. Mr Brooks, you need to understand that if you do not cooperate with the taking of a sample of saliva from your cheek, then police are entitled to use reasonable force to ensure that a sufficient sample is obtained for placement on the database.
37 Charge 10 is a Class 2 offence pursuant to the Sex Offenders Registration Act 2004 and pursuant to s34(1)(a) of that Act, you are to comply with the reporting conditions of that Act for a period of 8 years. My Associate will give you a document summarising those obligations. Would you please sign your name to acknowledge receipt of it.
38 In relation to Charge 13, pursuant to s6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the sentence imposed would have been 12 months’ imprisonment on that charge.
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