Director of Public Prosecutions v Browne

[2024] VCC 266

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00802

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY BROWNE

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2024
DATE OF SENTENCE:	29 February 2024
CASE MAY BE CITED AS:	DPP v Browne
MEDIUM NEUTRAL CITATION:	[2024] VCC 266

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  guilty by unanimous verdict Rape - recklessly causing injury -            common assault - intimate relationship - family violence or intimate partner violence - high moral culpability – no remorse - serious sexual offender.

Legislation Cited: Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Bowden v The Queen [2013] VSCA 382; 44 VR 229;

DPP v Skeates (Pseudonym) [2022] VCC 692 [61-62];                  

DPP v Mokhtari [2020] VSCA 16.

Sentence:Total effective sentence 10 years and 8 months imprisonment. Non parole period of 7 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr P. Kounnas	Le Brun & Associates

HIS HONOUR:

1Gregory Browne, in October 2023 after an 11-day jury trial relating to charges on Indictment K12896328 you were found guilty by unanimous verdict on Charge 1 of rape, Charge 2 of rape, Charge 4 of recklessly causing injury, Charge 5 of rape, Charge 6 of common assault and Charge 7 of common assault. You were found not guilty by unanimous verdict on Charge 3 of intentionally causing injury. Charge 4 of recklessly causing an injury was an alternative to Charge 3.  The maximum penalty for rape is 25 years' imprisonment, for recklessly causing injury, five years' imprisonment, and for common law assault, five years' imprisonment.

2The charges for which you have been found guilty arose out of your relationship with Ms Laura Pritchard[1].  You and Ms Pritchard commenced an intimate relationship in October 2003.  The relationship progressed quickly, and she became pregnant after about three weeks. 

[1] A pseudonym.

3In December 2003, Ms Pritchard moved into your home in Hampton.  You and Ms Pritchard have a daughter together, Irene[2], who was born in August 2003.  Your two children, Elly[3] and Reuben[4], from a previous relationship, also lived with you at the house in Hampton.  Reuben gave evidence in the trial. 

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

4Ms Pritchard gave evidence about the relationship between the two of you.  She detailed evidence of other misconduct outside the charged acts, including verbal and sexual abuse and violence.  Her evidence was that you were demeaning, violent, controlling and cruel to her during the relationship and that this type of conduct became worse towards the end of the relationship. 

5She said that after 2008, it degenerated into full blown violence: she said, 'It happened everywhere all the time'.[5]  By violence she said that meant pushing shoving, hitting, yelling and standing over her.  She also referred to being hit by your grandfather's walking stick and occasions of attempted penetration of her vagina with the walking stick.

[5] Transcript of pre-record evidence dated 1 June 2022 ("T") Page (P) 35 Lines (“L”) 11-12.

6I have considered all this material and ultimately, I accept the characterisation of the relationship as controlling and violent, which is in my opinion a conclusion consistent with the verdict of the jury. 

7The factual basis of the charged offences is as follows.  In February 2004, you and Ms Pritchard were in your bedroom.  She wanted to go to bed but you wanted to have sex.  She said 'Not now, can you wait until tomorrow?  I'm really exhausted.  I need to go to sleep'.  You replied 'No, it's my right.  Open up, I need an empty'.[6]  She said that this expression meant you wanted to have an orgasm for yourself.[7]  She said that this was an expression you used routinely.

[6] T, P8, L13-15.

[7] T, P9, L8-9.

8In relation to your sexual interactions, you moved your body on top of her and she pushed you off and said 'No'.  You responded by saying 'I need an empty, open up'. [8] She tried to protest further physically by pushing you away with more force and she said 'No.  Don't you hear me?  I don't want to have sex tonight.  I need to go to sleep'.[9]  You pushed your knees between her legs and pushed them open, then pinned her down on the bed by holding the top of her arms, you put your penis inside her vagina. [10] She said 'I was just so stunned and shocked that I just laid there letting it happen because I didn't know what to do'.[11]  That is the basis of Charge 1 of rape of which the jury found you guilty. 

[8] T, P9, L 2-5.

[9] T, P9, L16-17.

[10] T, P9, L 24-26.

[11] T, P10, L13-16.

9Ms Pritchard said the penetration lasted for about a minute and a half and she said she ‘just laid there motionless’ and then you rolled off her.[12]  She said that she told you, 'You should stop when I ask you to stop' and you said 'Nup, it is my right to have an empty and I'm only stopping because you're having my baby'.[13]  You then rolled over and went to sleep. 

[12] T, P10, L18-21.

[13] T, P10, L24 -27.

10Ms Pritchard said that after that incident, she became fearful about saying no to you during sexual advances.  She said you made requests for sex four to five times a week and she was cautious not to protest.[14]

[14] T, P11, L11-13 and 16.

11The next incident relates to early March 2009.  You were in bed with Ms Pritchard on a Sunday night.  You made a sexual advance towards her. [15] She declined and you then proceeded to open up her legs with your knees. She pushed you back and said ‘no, I don't want to, go over to your side of the bed – I just don't, I just don't want to’.[16]  You then put your penis in her vagina.[17]  She tried to push you off her body and got hold of your hair.  She said in her evidence your hair was very important to you.[18]  You started to scream and yell and you grabbed her by the hair. [19]

[15] T, P24, L3-5 and 16 -17.

[16] T, P 24, L 25-28.

[17] T, P 25, L 1-4.

[18] T, P 25, L6-10.

[19] T, P 25, L14-15.

12You ‘became stronger’ and pushed more of your weight on her and pushed harder with your free hand to pin her down on the bed and kept ‘ramming her’ by moving your penis up and down in her vagina.[20]  She then let go of your hair, you rolled over and went to sleep.[21] 

[20] T, P 25, L20-24.

[21] T, P 25, L31.

13She went to the toilet, looked at her hair and the next morning had a look at all her bruises.[22]  She had bruises on the top, the inside and the outside of her arms and on the inside and outside of her thighs and on her buttocks.[23]  This incident is the basis of Charge 2 of rape and Charge 4 of recklessly causing injury.

[22] T, P 26, L6-8.

[23] T, P 26, 9-12.

14The next day she showed the bruises to a friend of hers, Charmaine Pyle[24].  They discussed that she should report the incident to a doctor.[25]  She attended her local Medical Centre and saw Dr Gomes.[26]  Dr Gomes gave evidence that she had multiple bruises to her upper and inner arms on both sides, a large and more significant bruise on the outer aspect of her right arm, a bruised lip and large areas of redness and bruises around the sides and back of her thighs and that she made a complaint of rape.[27] 

[24] A pseudonym.

[25] T, P 26 L22 -23.

[26] T, P 27 L 7-12.

[27] Trial Transcript 12.10.23 P27 L16-23.

15In November 2010, Ms Pritchard got very sick.  She developed a pain in the right side of her upper body, and she went to emergency. 

16In December 2010, she had 50 per cent of her lung removed.  She gave evidence that doctors thought she had lung cancer, but it was tuberculosis or some obscure lung infection.  When she came back from hospital she was in excruciating pain.  Her evidence was that she was on eight Panadeine Forte a day.  She said that within a few weeks, you resumed your sexual demands without taking any notice of the fact that it was extremely painful for her emotionally and physically. 

17She then described the incident which gives rise to Charges 5 and 6 of rape and common law assault which she described in her evidence as the straw that broke the camel's back. 

18On Sunday 3 April 2011, you were in bed with Ms Pritchard, and you made sexual advances to her.  Again, you said, 'Open up, I need an empty'.[28]  She said 'No, you're not getting an empty tonight'.[29]  In response, you said 'I'm owed an empty.  I can have an empty whenever I like'. [30] You then rolled on top of her and opened her legs with your knees.[31]  You penetrated her by putting your penis in her vagina.  She yelled, 'Get off me.  You're not raping me anymore.  You're a rapist.  You can only enjoy sex when you use force.  I'm not being raped by you anymore.  This is the last time.  This is rape'.[32]   She said she kept repeating this and she was doing so loudly.  She tried to push you off, but she had no real power.  She was still very weak, recovering from the lung operation.[33]  This incident, as I said, is the basis of Charges 5 and 6. 

[28] T, P 31, L 12.

[29] T, P 31 L13-14.

[30] T, P 31 L15-16.

[31] T, P 31, L18-20.

[32] T, P 32, L2-6.

[33] T, P 32, 23-25.

19You were rolled off her and went to the toilet where you commented on your own sexual performance.[34]  The next day she had a conversation with you after lunch and said 'I think we should split up. I can't, I'm not doing this anymore' and you said 'Yep, fine, go, fuck off, move out'.[35]

[34] T, P 33, 2-6.

[35] T, P 33, L 14.

20On 4 April, you and Ms Pritchard had a conversation with the children after they came home from school.[36]  She did not leave the family home on that day as she did not have a place to go to at that stage.[37] 

[36] T, P 33, L23-26.

[37] T, P 34, L25-26.

21That night you and Ms Pritchard went to sleep in the same bed.  She gave evidence that she woke up the next morning at about 3 to 4 o'clock with you punching her in the middle of her back with your fists.[38]  You then started kicking her with your feet against her legs and her thighs, around four to five kicks.  You started calling her a cunt repeatedly, about 50 to 100 times.[39]  She got out of bed, got dressed, got the dog in the car and stayed out until 6.30 or 7 o'clock.[40]  That is the basis for Charge 7, common law assault.

[38] T, P 35, L3-6 and L28-31.

[39] T, P 36, L 1-5.

[40] T, P 36, L 1-4.

22She obtained a rental property and moved out the following week.  There was a good deal of evidence in the trial about matters relating to separation, proceedings that I do not need to go into in this sentence, but essentially, she moved out with your daughter, Irene, and the offences were not reported until years later. 

23Rape is an inherently serious offence as reflected in the maximum penalty of 25 years' imprisonment.  In the case of Mokhtari, the Court of Appeal said this of rape offences:

'The very act of rape is inherently serious simply by virtue of the invasion of the victim's bodily integrity without consent.  It is quite simply an act of violence whether or not accompanied by any other violent conduct.  The violation is physical, emotional and psychological.  It follows that aggravating features apart, all acts of non-consensual penetration are objectively serious irrespective of the form and the extent of the penetration'.[41]

[41]DPP v Mokhtari [2020] VSCA 16 [41].

24In this case, significant violence occurred causing injury at the time of
Charge 2, the rape offence from March 2009, and that violence is represented by the recklessly cause injury charge, Charge 4. Furthermore, the final rape in this series of charges, which is Charge 5, occurred in circumstances where the victim was weak and still recovering from a major operation. 

25You had no regard for her pain, you were only interested in controlling her for your own sexual gratification.  All the offences in this case fall into the category of family violence or intimate partner violence. 

26In the case of Skeates v The King, which was referred to by the prosecution, the Court of Appeal after reviewing the authorities in this area of sentencing, said this at paragraphs 61 and 62:

'Further, the seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury.  Family violence is now understood and defined in law to encompass behaviour that is physically, sexually, emotionally, psychologically and economically abusive or threatening or coercive even if such behaviour does not constitute a criminal offence.  That kind of behaviour produces situations where people, disproportionately women, live in real and justified fear of men who are or were their intimate partners. It produces a domestic atmosphere steeped in dread.  It robs the victims of capacity and agency and also engenders shame. 

It follows that in assessing the totality of the circumstances that pertain to any offence committed in the context of family violence, the surrounding behaviours of the offender must be considered to assess the true gravity of the offending and for the sentence to vindicate the dignity of the victim'.[42]

[42]DPP v Skeates (Pseudonym) [2022] VCC 692 [61-62].

27The court in Skeates noted the need for condign punishment in cases of this type.[43]  Obviously, the comments of the Court of Appeal are highly relevant to the offending in this case.  The charged offences involve violence and sexual offending occurring in the family home against a background of coercive, controlling and cruel behaviour towards the victim over a long period. 

[43] Ibid.

28You are not to be punished for the uncharged conduct referred to in the evidence, but that is the surrounding behaviour that sheds light on the gravity of the charged acts in this case.  It cannot be said that the charged incidents were isolated events in the relationship. I regard your moral culpability for this offending as very high. 

29Although there is no victim impact statement because Ms Pritchard died before the trial and the evidence before the jury was her recorded evidence, it was apparent from her evidence that your offending had a devastating impact on her.

30You are not to be punished for running a trial, but you are not entitled to the mitigatory benefits that flow from a plea of guilty.  For example, you have shown no remorse for the offending. 

31General deterrence and denunciation must be given substantial weight in deciding the sentence and community protection and specific deterrence also play an important role.

32Turning then to your personal circumstances.  You turned 70 at the beginning of this year.  You were born in Melbourne, the third oldest of five boys in your family. 

33You went to St Gabriel's Primary School in Reservoir, then to Immaculate Heart College in Preston and St Joseph's Technical College in Abbotsford.  You finished school in Year 10. 

34You completed an apprenticeship as an electrician and continued at the same firm for a period of approximately seven to eight years.  At the same time, you completed an Associate Diploma of Electrical Engineering at night school.  You were employed and became a manager responsible for estimating and design.

35At the age of 40, you moved to Hong Kong for work and then you lived and worked in Indonesia for two years.  You returned to Australia and worked for a US company for about 12 months and then moved into private practice consulting as an electrical engineer until you were approximately 65 years old. 

36You have three children with a woman named Lola Reid[44] who you met when you were around 17 years old.  You and Ms Reid separated after being together for around 25 years in 1995. 

[44] A pseudonym.

37You then met a woman named Diana Secombe[45] and you had two children with her, Elly who was born in February 1997, and your son Reuben who was born in 1998.  You separated from Ms Secombe in 1999.  She died in 2011. 

[45] A pseudonym.

38You are the primary carer for your daughter, Elly, who is 26 years old and who has a mild intellectual disability.  Your son, Reuben, works as a barman.  The material indicates he suffers from ADHD.  Reuben was living with you, as well as Elly until you were remanded in custody by me after the jury verdicts in this case. 

39In the psychological report tendered as an exhibit on the plea written by
Mr David Sullivan, he notes that you report being sexually assaulted as a schoolboy and you also report that you were raped when you were 17 years old by a man of about 40 years age, an incident which still causes you grief.
Mr Sullivan said this:

'I consider given his current circumstances including his incarceration and the uncertainty of sentencing outcomes, his responses to the patient health questionnaire indicated either Mr Browne suffers a lack of insight, a lack of comprehension, a dissociative element to his emotional functioning or a combination of lack of insight, lack of comprehension and a dissociative dimension to his functioning'.  [46]

[46] Psychological report of David Sullivan dated 22 January 2024.

40He noted that you had never received psychological or psychiatric treatment.  He concluded that it is not surprising you are still distressed by the continuing impact of the rape when you were 17 years old.  He concluded that given your steady record of employment, your capacity to sustain long-term intimate relationships, the absence of any other convictions, your long-term commitment to your children and other factors, that you are unlikely to commit any further criminal offences.

41Your counsel, Mr Kounnas, relied on the delay in the resolution of this matter, which he submitted was largely not attributable to you.  This trial was adjourned on three occasions, twice during the pandemic. 

42The offending itself dates back to between 2004 and 2011.  There is no suggestion that in the time since the offending you have re-offended and this is relevant to your prospects of rehabilitation.  Furthermore, you have had these serious charges hanging over your head since 2019.  I have taken the delay into account, both in relation to your prospects of rehabilitation and the burden of having these matters pending for that period of time.

43It is difficult to assess your prospects of rehabilitation given you have shown no insight or remorse.  On the other hand, this offending took place a long time ago now when you were in your 50s and there is no suggestion of further offending, and you will be a much older man before you become eligible for parole in this case.  The risk of re-offending would arise in the event you commenced a new intimate relationship on your release, but in my opinion the chances of re-offending are significantly reduced by your advanced age.

44Mr Kounnas relied on your concern about Elly’s long-term living arrangements now that you are no longer available to care for her and she has remained living in your house.  I accept your concern about Elly increases the burden of your imprisonment and I have taken that into account. 

45Mr Kounnas submitted I should allow for a lengthy period of supervision on parole if you were granted parole for the following reasons, your advanced age and the absence of any prior convictions.  Furthermore, he submitted such a disposition would allow you to return into the community as Elly’s caregiver and that this would be in the interests of the community.

46The totality principle requires that the total sentence I impose must be just and proportionate to the total criminality of the offending.  To comply with the totality principle, I have ordered substantial concurrency between the charges. 

47However, you have been convicted of three sexual offences and for each of those offences you will be sentenced to a term of imprisonment.  You therefore fall to be sentenced as a serious sexual offender on Charge 5 of rape.  The consequences of the serious offender provisions are that I am required to consider protection of the community as the principal sentencing purpose and the totality principle is modified but not excluded by the statutory presumption of cumulation. 

48I will moderate the orders of cumulation to comply with the totality principle but keeping in mind the serious offender provisions in respect of Charge 5.  I indicate that a disproportionate sentence is not necessary and nor was one asked for by the prosecution. 

49Your serious offender status in respect of Charge 5 will be noted in the court records.  The non-parole period mitigates punishment in favour of rehabilitation.  It must reflect the objective gravity of the offending.  It is the minimum period of imprisonment that justice requires to be served. 

50I must keep in mind your rehabilitation and I have allowed for what I regard as an extended period of supervision, keeping in mind that the non-parole period must be consistent with the objective gravity of the offending.

51Just finally before I turn to the sentences in this matter, the prosecution has applied for an order under the Sex Offenders Register.  The relevant provision is s11(3) of the Act, which was analysed by the Court of Appeal in the case of Bowden v R.[47] The following propositions emerge from that analysis; that the enquiry whether to make a registration order is a two-stage process.  I have to be satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.  The risk must be real rather than fanciful.  The evaluation of risk is directed to the risk upon the offender's release into the community assessed by what is presently known. 

[47]Bowden v The Queen [2013] VSCA 382; 44 VR 229.

52I must also be satisfied that the order should be made in all the relevant circumstances.  I need to balance the identified risk having regard to your right to enjoy freedom and autonomy of action.  I have to balance the magnitude and nature of the risk and the likelihood the risk eventuating against the seriousness of the consequences for you.  I have to be satisfied there is no reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community on release.

53Have we lost him?  What's happened?

54(Short adjournment.)

55HIS HONOUR:  They can't get him back. All that remains is to announce the sentence.  We should be able to organise a link sometime later in the day. 

ADJOURNED UNTIL 1PM ON THURSDAY 29 FEBRUARY 2024

56HIS HONOUR:  All right, returning to the issue that I was dealing with before the link was cut off this morning and that is the question of registration under the Sex Offenders Act.  Just to repeat, in the decision of Bowden, the Court said that:

‘The court should not make a registration order … unless there is no reasonable doubt that the offender poses or will pose on release a real risk to the sexual safety of one or more persons or of the community'.  [48]

[48] Ibid [38].

57In this case, I am not satisfied beyond reasonable doubt, or I am not satisfied there is no reasonable doubt that you would pose on release a real risk to the sexual safety.  Even if I am wrong about, nonetheless on the balancing exercise considering the magnitude and the nature of the risk, including the likelihood of the risk eventuating and balancing that against the serious consequences of making such an order, I am not persuaded that the balance falls in favour of making a registration order. 

58In coming to this view, I have had regard to your age, the age you will be when you are ultimately released, and the absence of any prior or subsequent convictions. So, I decline to make that order.

59Then, finally, going to the sentences in this matter I want to indicate that having regard to your age, I have taken into account that any sentence I impose will of course occupy a greater period of the balance of your life than had you been sentenced at the time the offending occurred when you were largely in your 50s. 

60Nonetheless, principles of general deterrence, denunciation and of course considerations of community protection, particularly in respect of Charge 5 of rape, and specific deterrence are all extremely important in this case, particularly general deterrence and denunciation.

61The sentences that I impose in this case are as follows: 

In relation to Charge 1 of rape, you are convicted and sentenced to five years and 10 months' imprisonment. 

In relation to Charge 2 of rape, you are convicted and sentenced to seven years' imprisonment. That is the base sentence. 

In relation to Charge 4 of recklessly causing injury, you are convicted and sentenced to 10 months' imprisonment. 

In relation to Charge 5 of rape, you are convicted and sentenced to seven years' imprisonment. 

In relation to Charge 5 of common assault, you are convicted and sentenced to five months' imprisonment. 

In relation to Charge 7 of common assault, you are convicted and sentenced to nine months' imprisonment. 

I make the following orders for cumulation on the base sentence, which is Charge 2, seven years.  In relation to Charge 1, one year.  In relation to Charge 5, two years and four months and in relation to Charge 7, four months.  Those periods are cumulative upon each other and on the base sentence which makes a total effective sentence of 10 years and eight months. 

I fix a minimum non-parole period of seven years and four months. 

I allow 132 days of pre-sentence detention to be deducted from the sentence that I have imposed.

Are there any other orders I need to make?

MS DUCKETT:  No, Your Honour.

HIS HONOUR:  All right, thank you and I will adjourn now until 2.30.

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