Director of Public Prosecutions v Brooks (a pseudonym)
[2024] VCC 1048
•12 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK BROOKS (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE HASSAN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 June 2024 |
DATE OF SENTENCE: | 12 July 2024 |
CASE MAY BE CITED AS: | DPP v Brooks (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1048 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – found guilty by jury verdict of four charges of sexual penetration of a child under 16 years.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Fichtner v The Queen [2019] VSCA 297; Sherritt v The Queen [2015] VSCA 1; R v Nutter [1995] VSCA 187; The Queen v PJB [2007] VSCA; DPP v Dale Kitching [2023] VCC 1424; Miller v The Queen [2011] VSCA 143
Sentence:Total effective sentence of 24 months; 15 months suspended for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
For the Accused | Mr C. Edwards (sentence) Mr L McPhie (plea) | Ms T. Freeman |
HER HONOUR:
1Patrick Brooks,[1] you were found guilty by jury verdict of four charges of sexual penetration of a child under 16. The jury found that your victim,
Todd Johnson,[2] was under 10 years of age when you offended against him. Consequently, the maximum penalty for each of the offences is 25 years' imprisonment.[1] A pseudonym.
[2] A pseudonym.
2The circumstances of your offending can be briefly stated. Todd Johnson is your cousin. He was aged around five to seven years old when you committed these offences in around 2006 to 2007. You were aged 15 to
16 years old. You used to babysit Mr Johnson and his older sister at their home when their mother was out.3Mr Johnson gave evidence that you anally penetrated him with your penis for the first time when you came into his room, got your penis hard and put your penis into his anus while you were holding his shoulders with your hands. He said, 'Stop, it hurts' (Charge 5).
4The next incident Mr Johnson described was when you came into his room, and you sucked his penis and got him to suck your penis. He said this only happened on the one occasion. (Charges 3 and 4)
5And finally, Mr Johnson gave evidence there was another occasion when you anally penetrated him with your penis when he was in his room
(Charge 6).6Todd Johnson, his mother Laura,[3] and his sister Rebecca[4] have all made victim impact statements.
[3] A pseudonym.
[4] A pseudonym.
7Laura Johnson says she loved you like a son and that your offending has destroyed the family. Ms Johnson and your mother are sisters, and she says their relationship will now never be 'resolved'. She says she feels you took advantage of her love for you, and this has destroyed her trust in others. She feels that she has failed her son. Mrs Johnson should not blame herself. She could not have imagined that you – who, as she said, she loved – would betray her love and trust.
8Rebecca Johnson says she feels sad thinking about what her brother experienced as a child.
9Mr Johnson says, 'Losing innocence as a child is a big thing'. He says it has ruined his confidence and affected his mental health. He says he has spent time in a youth mental health facility, has self-harmed and has attempted suicide. He says he only completed Grade 5 at school. He says he never made plans for the future because he thought he would kill himself before he turned 15. Mr Johnson says he finds it hard to describe the impact of your crimes against him because he did not experience a childhood free from sexual abuse.
10Mr Johnson, in his victim impact statement, makes the exact point which is made in so many of the authorities when discussing the pernicious effects of childhood sexual abuse, which is that victims will never know what life could have been and who they would have grown up to be if they had not been subjected to childhood sexual abuse, which, as the courts have regularly observed, destroys the opportunity of healthy and natural development and transition into adulthood,[5] and the effects of which are lifelong. And as is so often seen in cases of sexual abuse within a family, the family unit has broken down because of the abuse, the denial of the abuse by the offender, and the conflicting loyalties within the family that this produces.
[5] Fichtner v The Queen [2019] VSCA 297 at [66] – [67].
11Yours was objectively serious offending, Mr Brooks. You committed acts of sexual penetration against your cousin, who was a very young child and who was in your care. Your offending involves a grave breach of trust. You were only 15 to 16 years old at the time, and you have not offended in this way again notwithstanding that you have had continued access to young children.
12You maintain your innocence and accordingly have not offered any kind of explanation for why you behaved this way. I can only conclude that this was a period of sexual experimentation in your youth which has not been repeated. Because you were so young when you offended, the authorities make it clear your immaturity must be taken into account in the assessment of your moral culpability. Therefore, in my estimation, while you must have well understood that you should not have been sexually penetrating your young cousin, you would not have understood the very profound and damaging consequences of your conduct.
13I turn now to your personal circumstances.
14You were born in Bendigo in December 1990. You are presently 33.
15You are the youngest of a siblingship of five. Your parents separated when you were around three to four years old. Your father relocated to Western Australia.
16When you were only three years old, you were diagnosed with cancer. You underwent chemotherapy for six months and later were medicated in strong dosages. Your cancer reoccurred seven times between the ages of three and 17. When you were four years old, you were unwell to the extent you had to be revived. You require ongoing medical check-ups, but to date your cancer has not returned.
17During your childhood and youth, you lived with your family in the Macedon Ranges, then in the Bellarine Peninsula and finally Bendigo, where you initially lived with the Johnson family. I note that you did not offend against Todd Johnson during this time. In terms of your schooling, you completed the VCAL with a focus on animal studies and small business enterprise, and you completed a VCE woodwork subject.
18You have worked since you were 14 years old, mainly in hospitality.
19You relocated to Western Australia in 2018. Your father had been diagnosed with melanoma in 2016 or 2017. You have thrived in Western Australia. Again, you have mainly worked in hospitality. You were working at a hotel where you were hired with the intention of training you to become the manager, and you completed a manager's certificate by way of an online course in 2020.
20In August 2023, you moved to Bunbury where you found work as a café manager. In January 2024, you suffered a serious knee injury at work, which is the subject of a WorkCover claim by you. You stayed working, performing light duties. You were scheduled to see a surgeon in June.
21You met your partner in 2022. You moved in with your partner and her mother in August 2023, and you became engaged in October 2023. You plan to marry in February 2026.
22Your partner travelled from Western Australia to support you during your trial, and you have her continued support.
23Indeed, you have the continued support of family and friends. Character references were tendered at your plea from your mother, your father, your stepmother, and from your partner and her sister and mother, and her sister's husband, as well as from your sister and from friends. All of your referees speak of you as a hardworking and kind person who goes out of his way to help others.
24I turn now to the submissions made by your counsel, Mr McPhie, in mitigation of sentence.
25First, Mr McPhie submitted that you are a person of good character. You have no criminal history nor any matters pending. It is clear that since you committed the offences for which you now fall to be sentenced, you have lived a productive and otherwise blameless life. He submitted, therefore, that 'there were very powerful reasons in the interests of the community for not interrupting your exemplary process of rehabilitation' by imprisoning you.[6]
[6] Outline of defence submissions for plea dated 24 June 2024 at paragraph 120
26Mr McPhie noted that you have had opportunities to continue to offend against children but that you have voluntarily desisted from offending.
27Secondly, he submitted your young age at the time you offended means that if you had been sentenced at the time of the offending or shortly after, you would have been sentenced as a child. He submitted your moral culpability would have been judged in accordance with your young age, and great weight would have been given to maximising your prospects of rehabilitation, and general deterrence would have played a lesser role in the sentencing exercise. He submitted it would have been open to the Court to impose detention in a youth training centre or to impose a non-custodial order.
28Mr McPhie referred me to the cases[7] of Sherritt, Nutter and Boland, which are authorities which recognise that when offences have been committed as a child or a young person and not prosecuted until many years later, although the offender falls to be sentenced as an adult, 'common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or as a person of immature years and not as an adult person of greater maturity'.[8]
[7] Sherritt v The Queen [2015] VSCA 1 (“Sherritt”); R v Nutter [1995] VSCA 187 (“Nutter”); The[8] Sherritt v The Queen [2015] VSCA 1 at [35]
29Thirdly, Mr McPhie relied on delay in two ways. First, you have demonstrated your rehabilitation in the intervening years; and secondly, you became aware of the allegations against you in June 2020. You were not charged until June 2022, and you stood trial in May 2024. This is a delay of around four years, largely attributable to COVID. It is certainly not attributable to you, but you have had this matter hanging over your head, unresolved, and this is a mitigatory consideration.
30Fourthly, Mr McPhie submitted with a criminal record you will no longer be able to pursue a career in hotel management and that I should take this into account as a form of extra-curial punishment.
31Fifthly, Mr McPhie submitted you enjoy family support, and in addition to your lack of a criminal history and your good work ethic, I should assess your risk of reoffending as low and your prospects of rehabilitation as excellent.
32He referred me to a number of cases both as comparator cases and which discuss the relevant sentencing principles involved in sentencing a youthful offender after an extended period of time. These cases are Sherritt, PJB or Boland, Miller[9] and Dale Kitching.[10]
[9] Miller v The Queen [2011] VSCA 143 (“Miller”)
[10] DPP v Kitching (a pseudonym) [2023] VCC 1424 (“Dale Kitching”)
33In Sherritt, the Court of Appeal allowed the appeal of an appellant who had been sentenced at first instance to a sentence of four months' imprisonment in combination with a two-year correction order after a plea of guilty to offences committed more than 20 years ago against his half-sister, who was then a child aged between five and nine years. The appellant was nine years older. The offending included acts of sexual penetration. The appeal was allowed, and the offender was resentenced to a two-year correction order with a bond condition of $500.
34In Miller, the Court of Appeal allowed an appeal of an appellant who had been sentenced at first instance to a sentence of two years and six months,
22 months of which was suspended for two years for offences of sexual penetration and attempted sexual penetration, and this was upon jury verdict. The appellant was aged between 14 and 17 when he offended. The victim was between eight and 10 years. He was resentenced to 18 months' imprisonment with 15 months suspended for a period of 15 months.35In PJB (or Boland), the appellant had been convicted after trial of six counts of an indecent act on a girl under 16 and two counts of indecent assault on a person under 16. He was aged between 13 and 19 when he offended. The victim was his sister, who was aged between six and 12 years. The offending included acts of digital penetration. He was sentenced at first instance to a total effective sentence of 43 months with a non-parole period of 24 months. Upon appeal, he was resentenced to a total effective sentence of three years with time served, being 372 days, as the period of actual custody and the remainder being suspended for a period of two years.
36In Dale Kitching, a decision of a judge of this Court, the offender pleaded guilty to one charge of sexual penetration of a child under 16, which occurred when he was aged between 14 and 16. The victim was his 12-to-13-year-old niece, who was cognitively impaired. On one occasion, he put his penis in her mouth and ejaculated. He was sentenced to an adjourned undertaking without conviction.
37Mr McPhie submitted, in all the circumstance of this case, the appropriate disposition was a correction order with work hours the only condition additional to the mandatory conditions. As a secondary and alternative submission, Mr McPhie submitted a wholly or partially suspended sentence was an available sentence.
38On behalf of the prosecution, Mr Devlin submitted, given the seriousness of the offending, its repeated nature and the longstanding effects on
Mr Johnson, and given the application of the serious sexual offender provisions, the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.39Mr Devlin submitted that registration under the Sex Offenders Registration Act was discretionary in your case but did not submit I should exercise my discretion to have you registered.
40Mr Devlin submitted that you fall to be sentenced as a serious sexual offender on Charges 5 and 6 if you are convicted and sentenced to a term of imprisonment on Charges 3 and 4. The prosecution made no submission that there should be a disproportionate sentence. The application of the serious sexual offender provisions does not displace the principle of totality.
41I turn now to the application of the relevant sentencing principles and to my conclusions in sentencing you.
42I have already discussed in these reasons the objectively serious nature of your offending and the very grave harm that you have caused your victim, which is ongoing harm. But as I have also discussed, because you yourself were so young when you committed these offences, my assessment of your moral culpability must take into account your immaturity. Further, given your youth at the time you offended, the application of the sentencing principle of general deterrence is significantly moderated.
43I take into account the delay in finalising this matter, which is relevant in a number of ways.
44First, I take into account that you would have been dealt with as a child if you had been sentenced at the time of the offending.
45Secondly, you have not reoffended in the intervening years. Your rehabilitation is demonstrated. Your risk of reoffending is low, and you pose little or no risk to the community. There is no real application of the sentencing principles of specific deterrence or community protection.
46Thirdly, I take into account that you have suffered some unnecessary distress as a consequence of the delay between first becoming aware of these allegations and your trial.
47I take into account also that you have suffered some extra-curial punishment in that you can no longer pursue your career in hotel management. I accept that this is a form of extra-curial punishment relevant to my consideration of what constitutes just punishment in your case, and I will allow for some modest mitigation of sentence in the exercise of my discretion.
48I revoked your bail upon verdicts of guilty by the jury. I am told that you are finding being incarcerated very difficult. It is your first time in custody, and you are highly distressed. Your injured knee is causing you pain which you say is not being adequately treated.
49I have been assisted by the cases provided to me by the defence. Ultimately, however, I must sentence you on the facts and circumstances relevant to your case.
50You have been able to rely upon a number of mitigatory considerations, and I take into account also the principle of parsimony. However, I have concluded the gravity of your offending calls for terms of imprisonment on all charges albeit heavily moderated to take into account your youth at the time you offended.
51I intend to sentence you as follows. You can remain seated in the circumstances, Mr Brooks.
52You are convicted on all charges.
53On Charge 3, you are sentenced to nine months' imprisonment.
54On Charge 4, you are sentenced to nine months' imprisonment.
55On Charge 5, you are sentenced to one year imprisonment.
56On Charge 6, you are sentenced to 15 months' imprisonment.
57Charge 6 is the base charge. I direct six months of the sentence on Charge 5 and three months of the sentence on Charge 4 be served cumulatively upon Charge 6 and upon each other.
58That makes a total effective sentence of 24 months.
59I direct that 15 months of the sentence be suspended for 12 months.
60That results in a period of actual custody of nine months.
61You are sentenced as a serious sexual offender on Charges 5 and 6, and I direct that be entered into the records of the Court.
62Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 46 days, not including today, of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.
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Queen v PJB [2007] VSCA 242 (“PJB or Boland”)
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