Director of Public Prosecutions v Brown

[2014] VCC 1385

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01274

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEWART BROWN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2013, 7 February 2014, 4 June 2014, 15 August 2014
DATE OF SENTENCE:	22 August 2014
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2014] VCC 1385

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Balleck	O.P.P.
For the Offender	Mr R. Martini	Rainer Martini & Associates

HIS HONOUR: 

1Stewart Emerson Brown you have pleaded guilty to seven charges of indecent assault upon a male contrary to s.68(3)(A) of the Crimes Act 1958. This provision was applicable to your offending that occurred between 1973 and 1975 and the maximum penalty was five years' imprisonment.

2You have also pleaded guilty to four charges of indecent assault upon a female contrary to s.55(1) of the Crimes Act 1958. This provision was applicable to your offending that occurred between 1974 and 1975 and a maximum penalty for that offence was five years' imprisonment.

3You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  I accept that your plea and the full admissions you made to investigating police is also evidence of your remorse for your offending.  As I have noted, your offending occurred between 1973 and 1975 and no prior convictions are alleged against you.  There are however, three subsequent court appearances in 1987, 1995 and 2014, which I have been referred to as relevant to your prospects of rehabilitation and more generally, the protection of the community.

4You will be sentenced as a serious sex offender by operation of Part 2A of the Sentencing Act 1991 and accordingly, the protection of the community from you is the principle purpose for which this sentence is to be imposed. But the prosecution did not submit that I should impose a disproportionate sentence upon you and I will not do so.

5A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows:

6Between 1973 and 1975 when your offending occurred, you resided in East Bentleigh with your parents.  You were 30 years old.  The two victims of your offending resided in the same street as you.  The male victim was aged between 9 and 11 years when you offended against him and the female victim was aged between 8 and 10 years when you offending against her.  The parents of your victims trusted you and your family and your offending against their children constitutes a gross betrayal of that trust.

7Charge 1 concerns you rubbing the male victim's bottom when he was in the shower at your home; Charge 2 concerns you masturbating him after he left the shower; Charge 3 is a representative charge concerning two occasions of you performing oral sex on the male victim whilst he was in the cabin of a boat parked in the driveway of your home; Charge 4 is also a representative charge concerning 20 occasions of you masturbating the male victim while he was in the cabin of the boat; Charges 5 and 6 concern two separate occasions of you masturbating the male victim while he was staying overnight on the boat while you travelled in it in Gippsland; Charge 7 concerns you masturbating the male victim in a flat in St Kilda; Charge 8 concerns you rubbing the female victim's vaginal area with your fingers in the cabin of your boat; Charge 9 concerns you licking the female victim's vaginal area in the flat in St Kilda on the same occasion the subject of Charge 7; Charge 10 concerns you penetrating the female victim's vagina with your tongue in her bedroom in her family home; Charge 11 concerns you rubbing your penis on the female victim's vaginal area whilst she was on your boat in Western Port bay. 

8It is plain from this summary that your offending is of the utmost seriousness.  Your appalling conduct was driven by your selfish desire for gratification with no regard for the harm you were causing to your victims.  I regard your statements to police that you now appreciate the seriousness of your conduct as lacking any real insight into the nature of offending against vulnerable children in this way. 

9Your offending was first reported to police by your female victim in 2012.  This in turn, led to the male victim making a statement to police.  Both of your victims have lived with the deeply traumatic effects of your offending for almost 40 years.  I have received in evidence a victim impact statement of the female victim and I accept that your offending has had a profoundly traumatic effect upon her. 

10The sentence I impose must be calculated to deter you and others from offending in this way and you must be punished for your repugnant, criminal abuse of two trusting and vulnerable children. 

11You were born on 11 January 1944 and are now aged 70.  You suffer from some relatively minor physical ailments that are controlled by prescribed medication.  You are divorced having been married for 30 years and have two adult children.  You now have no contact with your former wife or your children due to your offending.  You have been employed in logistics and information management and you are of very high intelligence. 

12As I have already observed, you have no prior convictions, but you have three subsequent court appearances for sexual offending against children.  On each occasion you were sentenced to terms of imprisonment and most recently, on 20 May 2014 in the Magistrates' Court at Geelong, you were sentenced to 18 months' imprisonment with a non‑parole period of 12 months in relation to one charge of committing an indecent act with a boy aged 13 who suffers from Asperger's Syndrome and ADHD.  You worked with the victim's father and offered to babysit for him. 

13By operation of s.14 of the Sentencing Act 1991 I will be required to fix a new non‑parole period in respect of this offence and the offences for which I am passing this sentence.

14I have received in evidence a psychological report of Mr Jeffrey Cummins and he was called to give evidence on your plea.  In 2011 you were assessed by another psychologist as suffering from Asperger's Syndrome and I accept that this condition is a cause of your offending in relation to children.  Your behaviour in the company of adults is that of a socially awkward and isolated person and this has, in turn, resulted in you seeking acceptance in the company of children.

15Whilst your condition, to some degree, moderates your moral culpability, it also heightens the risk of you reoffending.  Mr Cummins has assessed that risk as high‑moderate and I accept that this is an accurate assessment. 

16Your prospects of rehabilitation must be approached with great caution and it is essential that you undertake treatment for sex offending.  You are a paedophile attracted to prepubescent children and as I have said the community must be protected from you by the sentence that I impose. 

17The sentence I will impose is for offending that occurred almost 40 years ago and I have taken this into account in my assessment of all the relevant considerations applicable to this case.  No criticism can be made of the victims of your offending for not complaining sooner.  Offending of this nature is often not revealed for substantial periods of time.  The reasons that victims do not reveal to others deeply traumatic events such as this are well understood and obvious.

18I accept that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case. Your Asperger's Syndrome does moderate your moral culpability and it will cause you a degree of hardship in prison that would not otherwise be the case. I also accept that your age and physical health will also mean that prison will weigh more heavily upon you.

19In the result, the sentence of the court are as follows.  On Charge 1, you are convicted and sentenced to be imprisoned for 12 months; on Charge 2, you are convicted and sentenced to be imprisoned for 12 months; on Charge 3, you are convicted and sentenced to be imprisoned for 15 months; on Charge 4, you are convicted and sentenced to be imprisoned for two years and six months; on Charge 5, you are convicted and sentenced to be imprisoned for 12 months; on Charge 6, you are convicted and sentenced to be imprisoned for 12 months; on Charge 7, you are convicted and sentenced to be imprisoned for 12 months; on Charge 8, you are convicted and sentenced to be imprisoned for 12 months; on Charge 9, you are convicted and sentenced to be imprisoned for 18 months; on Charge 10, you are convicted and sentenced to be imprisoned for 18 months; on Charge 11, you are convicted and sentenced to be imprisoned for 18 months.

20I direct that the three months of the sentence on Charge 1, three months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 5, three months of the sentence on Charge 6, three months of the sentence on Charge 7, three months of the sentence on Charge 8, three months of the sentence on Charge 9, three months of the sentence on Charge 10 and three months of the sentence on Charge 11 be served cumulatively on each other and cumulatively on the sentence I have imposed on Charge 4. 

21This makes for a total effective term of imprisonment of five years.  I fix a new non‑parole period in relation to this sentence and the sentence you are now undergoing at three years and six months.  Such non‑parole period will commence today.

22I declare that in relation to Charges 2 to 11 on the indictment you have been sentenced as a serious sex offender.  But for your plea of guilty, I would have imposed a total effective term of imprisonment of seven years and imposed a non‑parole period of five years.

23I declare that you have served 181 days by way of pre‑sentence detention.

24You will be placed on the Sex Offenders Register for life and information regarding that will be supplied to you by my Associate.

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