Director of Public Prosecutions v Broughton (a pseudonym)
[2017] VCC 1745
•24 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN BROUGHTON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2017 | |
DATE OF SENTENCE: | 24 November 2017 | |
CASE MAY BE CITED AS: | DPP v Broughton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1745 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Catchwords: Persistent sexual abuse of a child under 16 years – maternal grandparent sexual offending against his granddaughter – immediate custodial sentence imposed.
Legislation Cited: Crimes Act1958
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr M. Allen | Victoria Legal Aid |
HER HONOUR:
1 Sean Broughton,[1] you have pleaded guilty before me to one charge of persistent sexual abuse of a child under 16 years, contrary to s.47A(1) of the Crimes Act1958.
[1]Sean Broughton is a pseudonym.
2 The offence is serious and that is reflected in the maximum penalty prescribed by Parliament and that is 25 years’ imprisonment.
3 I shall proceed to sentence you on the basis of the Crown opening that was read at the plea hearing. There was no objection taken to the opening by your counsel, Mr Allen.
4 The charged offence occurred over the course of the period from 6 December 2010 to 21 May 2014. The offending involves five occasions that were particularised and they involve you committing five indecent acts, with or in the presence of your granddaughter, including masturbating in her presence and touching her vagina, forcing her to touch your testicles and you touching her on the breast, as well as two occasions of actual sexual penetration of your granddaughter, the first involving lingual penetration of her vagina and the second occasion involving penile penetration of her mouth.
5 Your granddaughter was prepubescent, aged between the ages of eight and 11 at the time of the offending.
6 You were a mature man, aged between 63 and 67 at the time of the offending. You do not have any prior criminal history.
7 I do not propose to repeat in full the details of the offending. The agreed summary of prosecution opening has been exhibited and is marked Exhibit 1 and will be attached to these sentencing remarks and they will be anonymised.
8 The offending is extremely serious.
9 The first occasion occurred when your wife, Eliza,[2] was in Sydney visiting family. The complainant was entrusted to your care. Her mother, your daughter, had gone out. The offending occurred in the marital bedroom. An aggravating feature was that you made the complainant watch pornographic videos on television and then you masturbated in her presence and touched her vagina.
[2]Eliza is a pseudonym.
10 The second occasion happened prior to the complainant’s ninth birthday. It was also an occasion when your wife was away in Sydney. You again played pornographic videos. You forced the complainant to do a “69”. She described it as “having done 69 for the first time” in her VARE.
11 The complainant was resistant, but nonetheless, you lay her down and inserted your tongue into her vagina. She refused to suck your penis. She tried to avoid complying with your request. You hit her on the back, causing her to fall. That violent act on your behalf is another aggravating feature. You continued to suck her vagina and eventually she screamed and ran out of the bedroom and hid in the lounge room. You then came out to try and find her by threatening her that you would stab her if you could not find her. She felt threatened and stood up. You then picked her up, put her over your shoulder and took her back into the bedroom and locked the door.
12 The third occasion happened in a public place at the Broadmeadows swimming pool when the complainant was aged nine. You had taken both the complainant and her younger brother to the pool. Whilst swimming, you put her in a corner in the deep end of the pool and touched her on the vagina, over her bathers. You whispered to her not to scream or say anything. At a later time, whilst in the pool, you grabbed her hand and forced her to touch your testicles and asked the complainant if she liked that. She remembered pinching you and swimming away.
13 On the fourth occasion, she was aged between nine and ten and that also occurred in a public place, at the Zagame’s Restaurant, Reservoir. You drove the complainant to a friend’s birthday party and parked the car in the restaurant car park. You grabbed her by the head and forced her to suck your penis. She was crying and could not breathe properly. Her neck was sore.
14 The fifth and final occasion also occurred in a public car park. On that occasion, the complainant’s younger brother was present and seated in the rear passenger seat of your vehicle. You touched the complainant’s breasts and kissed her on the lips whilst she was seated in the front passenger seat.
15 Details of the offending became known when the complainant told a friend at school that she had been sexually assaulted by her grandfather. The matter was then reported to the wellbeing manager at the school, following which police were informed.
16 You were arrested on 26 May 2016 and a formal interview took place. You made admissions to the offending and you said you wished it had never happened. You did, however, deny putting your tongue inside the complainant’s vagina. You told police you were remorseful. You said that you could not remember when it all had started and you wished it had never started in the first place, because in the last two years, it had been eating you up and you were glad it was all out.
17 Paraphrasing what you told the police, you said, if the complainant was present, you would have told her that you were sorry and that you did not mean to hurt her and that you hoped that she forgives you.
18 Some of the answers in the record of interview, in particular Question 85 and Questions 238 to 240, demonstrate that you lack proper insight into your offending behaviour. You tried to attribute blame for the offending to the complainant. No child is responsible in these circumstances. You, alone, are the perpetrator of this course of persistent sexual abuse.
19 There is a real need in the future for you to address the issue of your lack of insight and to understand the harmful effects of your behaviour on your granddaughter, in any sexual offender treatment program that is undertaken by you during the course of your sentence.
20
Mr Allen properly conceded on your behalf that the offending has had
a profound and long-lasting effect upon your granddaughter.
21 Those effects, she detailed in her victim impact statement. She is one of two siblings. Her mother is your biological daughter. Prior to the offending, her mother looked to you for support. She was a single mother and she considered that you had a very good relationship with your grandchildren. You would take them to the park and swimming and generally would care for them on days when she was not able to do so. At times, you were solely entrusted to care for the grandchildren. They appeared to be enjoying time spent with you.
22 By this offending, you seriously abused your position of trust and repeatedly violated that trust, in order to satisfy your own sexual needs.
23 Your granddaughter's victim impact statement is a tragic dissertation of the profound effect of your abuse. She constantly ruminates about what happened and suffers symptoms of post-traumatic stress disorder, such as flashbacks, inconsolable crying, panic attacks, depression and problems sleeping. She now has difficulties trusting males and has engaged in self-harm by cutting herself in the past. She continues to receive medical treatment and psychological support. The offending has negatively impacted upon both her and upon her family relationships generally. She is very concerned for her mother, whom, she states, is very upset because her mother perceives that she did not take enough steps to properly protect her from your sexual abuse.
24 In sentencing you, the court must denounce this gravely serious behaviour. It is deserving of strong condemnation. Courts in this State treat sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who have such young persons in their care.[3]
[3]Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [117] (Kirby J).
25 I have taken into account that your offending includes occasions of both actual penetration and non-penetrative acts.
26 Mr Allen appropriately conceded that the court had no option but to sentence you to a term of imprisonment. He highlighted a number mitigating factors.
27 I accept that you entered a plea of guilty at the earliest opportunity at the committal mention in February 2017.
28 Your plea of guilty is important and is of substantial utilitarian value. Importantly, you avoided the need for the complainant, her mother and other witnesses to have to give evidence upon your trial. For you to have spared the complainant and her mother that experience, is something that the court must have regard to. Your sentence will be discounted accordingly. You have facilitated the course of justice by expediting the conclusion of these proceedings.
29 I accept that your plea is evidence of a degree of remorse and is indicative of your positive prospects for rehabilitation.
30 In addition to your plea of guilty, there is other evidence of remorse, such as was described in the contents of the letters furnished to the court from your son, Michael,[4] and also the reports of Mr David Ball, psychologist, and Professor Dennis Velakoulis, consultant neuropsychologist.
[4]Michael is a pseudonym.
31 You are man who was previously of good character, apart from this offending. You have led an apparently blameless life.
32 You come from an unremarkable background. You were born in Sheffield, England, and there were no issues in terms of your upbringing. Your father was a coal miner and your mother was focussed on home duties. You are the second youngest of five sons.
33 At age five, your family migrated to Australia and your father worked in mines in New South Wales. Your home life was described as happy and nurturing. There were no issues with violence, drugs or alcohol and your parents are described as being supportive and kind.
34 You have described an incident of childhood sexual abuse, involving sexual abuse by one of your other brothers when you were about aged nine, but there was no other matter that was brought to the attention of the court. You have not sought any counselling or treatment in the past for this abuse.
35 You completed Year 8 equivalent of secondary school. There were some literacy and numeracy problems whilst at school. You struggled very much as a student and found learning difficult. You were bullied at school. However, having left school at a tender age, you then went on to have a good employment history.
36 From about age 15 until your retirement at age 60, you worked constantly, with only relatively brief periods of unemployment. You had a diverse range of jobs, including work as a labourer, cleaner, forklift driver and storeman.
37 At age 23, you met and married your wife. There were three children born of the marriage. Your daughter no longer has any relationship with you. There is another son with whom you had a falling out some ten years ago and he has no relationship with you. You do, however, have a very strong relationship with your youngest son, Michael, who wrote a letter to the court. Prior to being placed in remand for this offending, you were living with him and had been doing so for some two years.
38 Your marriage has broken down and you are formally divorced. Nonetheless, you still enjoy an amicable relationship with your former wife. For the past two years, you have lived separately and apart, under the same roof at your son, Michael’s home in Wollongong. You lived downstairs, whilst Michael and your wife lived upstairs.
39 Michael is now the primary carer for your former wife, who has some physical disabilities associated with a bad hip injury. Your former wife is not aware of the offending.
40 Your son, Michael, is the only person who is fully aware of the offending and although he finds it very hard to accept what you have done, he nonetheless remains supportive of you and is prepared to continue to support you, upon your eventual release.
41 You are now 70 and are in poor physical health. You are overweight, suffer diabetes (non-insulin dependent), hypertension and high cholesterol. You have one kidney.
42 There are no issues in respect to alcohol or drug use or mental health issues.
43 Mr David Ball, psychologist, in his report, confirms that you had insufficient literacy to attend to him for psychometric personality instruments that he would ordinarily use and based on his clinical interview, he assessed your intelligence at a full scale IQ of 65.
44 He found no evidence of frank mental illness, such as psychotic symptoms, hallucinations or delusions, in the interview. You denied having experienced any such symptoms in the past. He considered there was evidence of cognitive impairment in the clinical interview and raised the possibility of onset of dementia.
45 That issue of onset of dementia was further explored by Professor Velakoulis. Following his assessment and interview, he formed the conclusion that he did not believe that you suffered from any psychiatric or neurological condition at the time of the offending. He did not believe that you had a condition that affects your capacity or function. He noted that you did exhibit some cognitive difficulties that could be related to underlying cerebrovascular ischemic disease and could ultimately lead to a vascular dementia. He considers you to be high risk for cerebrovascular disease. That is, high risk for either a stroke or more vascular changes and a vascular dementia.
46 Presently he found that you do not exhibit any condition that affects your capacity or functioning
47 Mr Ball provided a supplementary report of 31 October 2017, following receipt of Professor Velakoulis’ expressed opinion. He noted that the neuropsychiatric assessment ruled out early stage dementia or other age-related declines. He confirmed that your offending behaviour satisfied DSM-5 diagnostic criteria for paedophilic disorder.
48 Mr Allen, on your behalf, has now specifically disavowed any reliance on the Verdins principles, having regard to the expressed opinions of Mr Ball and Professor Velakoulis.
49 Mr Ball did undertake a risk assessment, which he considers, having regard to your particular circumstances, that you are to be considered to be at low risk of recidivism. The features associated with your lifestyle which reduce your risk of recidivism, that is, repeat offending of a like nature, are your age, detection of your sexual offending and psychosocial distance from potential victims.
50 He considers the main protective factors that may be applied to you are the successful completion of a sex offender treatment program, such that you would be greatly benefited from developing an understanding of the effects of sexual abuse upon your victim.
51 Overall, he considers that you may readily be managed in the community after successful completion of a sex offender treatment program.
52 I accept his expressed opinion concerning the necessity for a sex offender's treatment program, so as to optimise and lower your risk of recidivism.
53 Given your expressed remorse and willingness to undertake treatment and the other factors personal to you, I consider that you do have good prospects for rehabilitation.
54 Having regard to your relative old age, poor health and low intelligence, I accept that imprisonment will be particularly burdensome, exacerbated further by reason of you being away from your only real support, namely your son, Michael, who lives in Wollongong, New South Wales. You will also suffer the anxiety of being away from your former wife, whom you did provide some day-to-day care for in the past.
55
I noted Mr Ball's comments about you being lonely and isolated and having
a morbid preoccupation with your own worthlessness since this offending was discovered and I will highlight to the Correctional authorities that you ought be assessed when you are recepted into prison, so as to ensure that your
well-being is monitored.
56 In sentencing you, I have had regard to the gravity of the offending, which it is conceded, was extremely serious. The sexual abuse of your young granddaughter was a gross violation on your behalf of her and has resulted in significant harm. Your appalling disregard for her wellbeing, when you should have been caring for her, is to be condemned. Your actions were cruel and placed the gratification of your own sexual needs ahead of protecting an innocent, young girl.
57 There is a real necessity for the court to emphasise both general and specific deterrence.
58 I have had regard to all the mitigating factors, current sentencing practices and the need to avoid a crushing sentence.
59 Ultimately, I must formulate a sentence that reflects just punishment, having regard to all the matters that I have highlighted.
60 I have, in fixing the non-parole period, fixed a shorter period than would otherwise have been, because of your circumstances generally and your prospects of rehabilitation.
61
I will now announce the formal court orders. If you could please stand,
Mr Broughton.
62 In respect to the one charge of persistent sexual abuse of a child under 16, you are convicted and sentenced to eight years’ imprisonment. I fix a non-parole period of five and a half years.
63 I make the following declaration, pursuant to s.6AAA. But for your plea of guilty, I would have imposed a term of imprisonment of ten years, to serve eight years' imprisonment.
64
I make the order, pursuant to s.464ZF, for the taking of a forensic sample.
I consider it is in the interests of the community that it be taken, having regard to the seriousness of the offending and you consent to such an order. I do have to advise you, in the event that you do not co-operate when you are asked to give a sample, that reasonable force can be used in order to do so.
65 I make the following declaration of pre‑sentence detention. I declare that you have served 23 days in custody and direct that that be entered into the record of the court.
66
I finally make the declaration in relation to the Sex Offenders Registration Act 2004 (“SORA”). The charge of persistent sexual abuse is a Class 1 charge.
I order that you be registered and that therefore you are required under the SORA requirements to report for life and my associate will now provide you with the relevant notification.
67 I think that covers everything. So, yes, good.
68 MS DUCKETT: Yes, Your Honour.
69 MR ALLEN: As Your Honour pleases.
70 HER HONOUR: All right, so if you could ask Mr Broughton just to sign that acknowledgement.
71 MR ALLEN: Yes, I'll leave the Bar table, Your Honour?
72
HER HONOUR: Yes, certainly. All right, we can adjourn. Thank you,
Ms Duckett and Mr Allen for your attention to this matter. They are always difficult and I appreciate the assistance I have been provided. Thank you.
- - -
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of
the Criminal Procedure Act 2009
DIRECTOR OF PUBLIC PROSECUTIONS
–v–
SEAN BROUGHTON
AGREED SUMMARY OF PROSECUTION OPENING
Date of document: | 28 April 2017 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: |
Background
Mr Broughton was born in 1947 and is 70 years of age.
The victim is Kayla Broughton[5] who was born in 2002 and is 14 years of age.
[5]Kayla Broughton is a pseudonym.
Mr Broughton is the maternal grandfather of the victim.
At the time of the offending Mr Broughton was between 63 and 67 years of age and the victim was between 8 and 11 years of age.
The victim’s mother, Jennifer Broughton,[6] described Mr Broughton as always willing to help her as she was a single mother and being good with his grandchildren. He would take them to the park and swimming and generally have them off for the day.
[6]Jennifer Broughton is a pseudonym.
There were times when Mr Broughton looked after Kayla and her younger brother Scott[7] on his own. The children liked spending time with their grandparents.[8]
[7]Scott is a pseudonym.
[8]Statement of Jennifer Broughton.
Offending
Charge 1, Persistent sexual abuse of a child under 16 years
First Occasion
The offending occurred between 6 December 2010 and 5 December 2011 when the victim’s grandmother, Eliza Broughton went to Sydney to visit family.
The victim was staying with Mr Broughton because her mother had to go out.
The offending occurred in Eliza Broughton’s bedroom.
10. Mr Broughton put pornographic videos on the television and made the complainant watch them. (uncharged act)
11. Mr Broughton then put the victim down on the bed and took his shirt off and started masturbating himself. (a).
12. He then touched the skin of victim’s vagina.[9] (b)
[9]VARE (Q215-220 and 48-67).
Second Occasion
13. The offending occurred between 6 December 2011 and 6 December 2012, prior to the victim’s ninth birthday. The offending occurred in her grandmother’s bedroom at the Broadmeadows home when her grandmother was in Sydney. The victim described it as “having done 69 for the first time”.
14. Mr Broughton laid the victim down and put her on top of him. He said, “Now, you’ve got to suck my dick and I’ll suck your vagina”. The victim refused his request and Mr Broughton inserted his tongue into her vagina. (c)
15. The victim put her feet on the bed and lifted herself up to avoid this. Mr Broughton said, “Oh, come on, please, you’ll like it”, but when the victim refused again he hit her on the back causing her to fall. (uncharged acts)
16. Mr Broughton continued sucking the victim’s vagina.
17. The victim screamed and ran out of the bedroom. She hid in the lounge room in the corner. Mr Broughton came out trying to find her. He said that he would stab her if he couldn’t find her. Feeling threatened, the victim stood up. Mr Broughton picked the victim up, put her over his shoulder, took her back to the bedroom and locked the door.
18. Mr Broughton was playing pornographic content at the time of this offence.[10] (uncharged act)
[10]VARE (Q68-98, 85, 221-223).
Third Occasion
19. The offending occurred at the Broadmeadows swimming pool between 22 November 2012 and 22 May 2013, when the victim was 9 years of age.
20. Mr Broughton took the victim and her younger brother to the pool.
21. While swimming, Mr Broughton, put the victim in the corner of the deep end of the pool and said to her, “Oh you’ve been a very naughty girl.” He then touched the victim on the vagina over her bathers, going up and down with his finger. (d)
22. He whispered to her not to scream or say anything.
23. The victim swam towards the other end of the pool.
24. While the victim and her brother were playing with a ball, Mr Broughton caught the ball and swam off with it. The victim swam after him to retrieve to ball. Mr Broughton said, “Try to find it”, grabbed the victim’s hand and forced her to touch his testicles. He asked the victim if she liked that. The victim remembers pinching Mr Broughton and swimming away.[11] (e)
[11]VARE (Q102-125, 224).
Fourth Occasion
25. The offending occurred between 6 June 2012 and 5 June 2013 at the Zagame Restaurant car park in Reservoir. The victim was between 9 and 10 years of age.
26. Arrangements were made for Mr Broughton to drive the victim to a friend’s birthday party because her mother had to look after her younger brother.
27. They arrived at the car park some 5 to 10 minutes early. Mr Broughton grabbed the victim head and forced the victim to suck his penis.[12] (f)
[12]VARE (Q181-196, 231) and Statement of Jennifer Broughton (p.88).
28. The victim was crying, could not breath properly and her neck was sore.
29. Mr Broughton did not ejaculate.
Fifth Occasion
30. The offending occurred at the Campbellfield car park between 6 June 2013 and 21 May 2014. The victim was between 10 and 11 years of age.
31. Mr Broughton drove the victim and her younger brother Scott to Campbellfield Plaza. After visiting Kmart and Bakers Delight, he parked the car in the car park. The victim was seated on the front passenger’s seat. He touched the victim’s breasts. The victim’s brother, Scott, was seated at the back. (g) Mr Broughton also kissed her on the lips. [13]
[13]VARE (Q165-180, 229-230).
Arrest and Interview
32. The victim disclosed to her school friend that she had been sexually assaulted by her grandfather.[14] The matter was then reported to Ms Seccombe,[15] the Wellbeing Manager of the victim’s school on 28 October 2015. The victim told Ms Seccombe that she was scared to tell her mother because her grandfather told her the he would kill her if she told anyone.[16]
[14]VARE of Lauren Steiner. Lauren Steiner is a pseudonym.
[15]Rachel Seccombe is a pseudonym.
[16]Statement of Rachel Seccombe.
33. Mr Broughton was arrested on 26 May 2016 and interviewed at the Wollogong police station. Within the record of interview he said the following:[17]
[17]ROI.
a)He made admissions to the offending and said he wished it had never happened. (Q14, 46, 502, 513, 520-525)
b)He denied putting his tongue inside the victim’s vagina. (Q174)
c)“I can’t remember when it started, and I wish that it never started in the first place because in the last two years, it’s been eating me up and I’m glad it’s out. If Kayla was sitting there right now, I’ll say I’m sorry to her. I didn’t mean to hurt her and I hope she forgives me”. (Q14)
d)“I thought she might have liked it. She never said stop”. (Q85)
e)“If she didn’t want me to do it, all she had to do is say, Pa, I don’t want to do it, and I wouldn’t have done it with her”. (Q238-240)
f)“I didn’t want her to get into trouble. I didn’t want her mother finding out, that she was playing with me and all that’. (Q515-516)
g)“I’ve been told that she’s been cutting herself, and I thought it is because of what we’ve been doing”. (Q507-513)
Victim Impact Statement
34. The Crown will tender the Victim Impact Statement of Kayla Broughton at the plea hearing.
Maximum Penalty
35. Persistent sexual abuse of a child under 16 years – Level 2 imprisonment (25) years pursuant to section 47A(4) of the Crimes Act 1958.
Sex Offenders Registration Act
36. Persistent sexual abuse of a child under 16 years is a Class 1 offence. [18]
[18]Sex Offenders Registration Act, schedule 1, clause 1.
37. The offender, having been found guilty of one Class 1 offence, must comply with the reporting conditions under the Act for the remainder of his life. [19]
[19]Sex Offenders Registration Act section 34(1)(c)(ia).
Other Orders/Declarations
38. Section 6AAA of the Sentencing Act 1991 applies. This matter resolved at the committal mention stage.
39. Application under section 464ZF of the Crimes Act 1958 will be made.
J Malobabic
28 April 2017
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