Director of Public Prosecutions v Brown

[2015] VCC 1409

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON EDWARD BROWN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 October 2015
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2015] VCC 1409

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Offender	Mr B. Newton

HIS HONOUR:

1Jason Edward Brown, you have pleaded guilty to one charge of indecent act with a child under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.  You are now 42 years of age and were 38 years of age at the time of the offending.  There has been a significant delay in the matter coming on for sentence and I take that into account.  The reasons for that are immaterial and it is an extensive period of time.

2You pleaded guilty to a settled indictment and you must get the benefit of that.  By reason of your plea of guilty I accept that there is evidence, at least, of remorse and you must obviously get the utilitarian benefit.  The benefit in circumstances where a complainant is spared the ordeal of giving evidence is always to be recognised.

3Unfortunately you have an extensive criminal history mainly for forms of assault and driving matters.  You have the one prior finding of guilt for a sexual matter dating back to when you were about 18.  The criminal history is significant in that you have been in prison on a number of occasions and I have no doubt you are fully aware of the consequences of criminal conduct.  I say that in the light of what I am about to say about your background.  I take also into account that it being a settled indictment this matter could have been dealt with in the Magistrates' Court if it had remained there and I sentence with that in mind.

4Firstly, pursuant to the Sex Offender's Registration Act you will be placed on that register and the reporting conditions will be for a period of eight years.  I need to sign it.  We will give it to him now, Mr Newton, if that's all right.

5MR NEWTON:  Yes, sir.

6HIS HONOUR:  All right.  The circumstances surrounding the offending were that in early 2012 you were at your premises in Charles Street, Moe.  A 13 year old girl, who I will not name for anonymization purposes, came to the house with her father.  During the course of the evening you were there with your partner and your partner's 20 year old daughter.

7During the course of the night the child and your partner's daughter and yourselves were drinking alcohol.  As the night wore on the 13 year old became obviously drunker and drunker and you and your stepdaughter were providing her with various drinks.  She came to a stage where she was heavily intoxicated and she fell asleep on one of the couches in the living room.  Due to her intoxicated state she vomited on the floor next to the couch and rolled off the couch onto the floor.

8She dozed off, opened her eyes and saw, she says, the other person sitting on a couch playing the computer.  She then saw you walk naked into the living room from the kitchen and sit down on the couch.  She then watched you put a black coloured condom on your penis and you moved off the couch to where she was lying on the floor.  You removed her underwear and pulled her skirt up to you stomach.  You then began rubbing your penis against her groin area outside her vagina.  That was for a relatively brief period.

9During that she pretended she was sleep.  She then sat up and said she needed to go to the toilet and left the room.  You apparently then left the room yourself.  When she came back you were gone and it was about a month later that she first reported it to somebody.

10You have an intellectual disability and I accept that.  The offending was clearly contemplated.  You took advantage of a very drunk and I have no doubt, in your mind, unconscious 13 year old girl.  You had sufficient presence of mind to put a condom on your penis and while I accept that you desisted once she awoke that may well have been simply because she awoke.  Had she not awoken it may have been a different story.  However I sentence you only for what occurred.  It is a serious matter and in my view, as I have discussed with counsel, there has to be an active custodial component to whatever disposition I impose.

11I have before me a victim impact statement which outlines the concern that it has caused the child, the fear and the anxiety.  I have no idea of what the child's position in life was before all this occurred so I take it at face value.  It simply reiterates the sort of effect that this type of offending has on young children.  It causes distrust and she is obviously disturbed by the fact that you were her father's best friend at least or very close friend as she saw it.

12Obviously it is serious.  It calls for general and specific deterrence as well as denunciation and punishment.  In your particular situation I do not think specific deterrence are important.  I would be very surprised if you ever did this again.  However the situation calls for a custodial sentence and I look to matters personal to you in terms of determining the duration of that sentence.

13You counsel has provided a very helpful sentencing submissions, which I have obviously taken into account and work from.  You are a person who had a very disadvantaged background.  I accept that you had a violent father and that you, yourself, were cognitively impaired from a very age.  You were verbally and physically abused.  You attended special schools and I have material before me that confirms that. 

14Since leaving school you have endeavoured to work and have had a number of jobs and I accept that you have done the best the you can in terms of working.  You have two children who have been taken by DHS and placed with your sister and there has been difficulties in terms of seeing them, as I understand it, significantly because of this type of offending. 

15You have now been in a relationship with another person for some decade or so and she has children.  You have, at the present time, employment and it is unfortunate that that may or may not cease, I do not know.  You also have accommodation with your former partner but what will come of the Sex Offender's Registration in that regard I do not know.

16It is pointed out in the references that have been tendered on your behalf that were you to be incarcerated for an extended period of time your partner would not be able to maintain the rent and could lose the house.  I am told, however, that the landlord is reasonable person and it is to be hoped and indulgence can be made in the period of time that you will not be present. 

17The prospects of your rehabilitation are entirely up to you.  You have had many dispositions in the past, would appear to have breached suspended sentences and would appear to have breached Community Corrections Orders.  That is all really up to you. 

18My main concern is here that there is an appropriate punishment taking into account all the circumstances and that others who might be similarly minded would be deterred.  I am clearly aware of the decisions of Mulrock and matters such as that and I take them all into account.

19My initial indication was that I propose to give you a partially suspended sentence but as now been pointed out to me that option has been taken away by parliament.  Accordingly what I will do is I will give you the same active period of custody plus a Community Corrections Order.

20The sentence will be that on the charge of indecent act with a person under the age of 16 years you will be imprisoned for a period of three months.  Upon your release you will then be placed on a Community Corrections Order for a period of 18 months. 

21The only condition I impose will be 100 work hours.  It is important you understand that I am putting that Community Corrections Order in lieu of a suspended sentence, and your counsel will explain this to you, and if you breach this CCO by offending I will regard it as being effectively the same as if I had imposed a suspended sentence.  Again your counsel will explain that to you.

22Just so you fully appreciate the benefit of the plea of guilty that you have made my initial response would have been, in this scenario, to have jailed you for six months with a CCO so effectively your plea of guilty has halved the amount of time you have to serve.  Morwell Community Corrections?

23MR NEWTON:  No, Your Honour ‑ ‑ ‑ 

24HIS HONOUR:  Dandenong.

25MR NEWTON:  Dandenong.

26HIS HONOUR:  All right, Dandenong, all right.  If we know that was Dandenong we need the registration.

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MR NEWTON:  Your Honour, while the paperwork's being

prepared ‑ ‑ ‑ 

28HIS HONOUR:  Yes?

29MR NEWTON:  May I just approach my client?

30HIS HONOUR:  Of course, yes, yes.  There's no PSD I'm assuming.

31MR DOYLE:  No, Your Honour.

32MR NEWTON:  No.

33HIS HONOUR:  No.  All right we'll do this in - Do you just want to want to go down just to explain to him what's happening, Mr Newton, if that's all right.

34MR NEWTON:  Yes, Your Honour.

35HIS HONOUR:  All right, so you follow all that?

36OFFENDER:  Yes, Your Honour.

37HIS HONOUR:  All right.  Yes thanks for that, Mr Newton. 

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