Director of Public Prosecutions v Browne
[2015] VCC 126
•3 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BROWNE (A PSEUDONYM) |
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JUDGE: | His Honour Judge STUART | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 21 & 30 January 2015 | |
DATE OF SENTENCE: | 3 February 2015 | |
CASE MAY BE CITED AS: | DPP v Browne | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 126 | |
EX TEMPORE REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Donaghy | |
| For the Prisoner | Mr D. Dann |
HIS HONOUR:
1 John Browne, you have pleaded guilty to various sexual offences on two Indictments. On the first Indictment, E11613105, you have pleaded guilty to one charge of unlawful indecent assault of a girl, four charges of indecent assault of a male person and three charges of indecent assault. On the second Indictment, E11612928A, you have pleaded guilty to seven charges of indecent assault. At the relevant time, each of the charges on both Indictments carried with them a maximum penalty of five years' imprisonment.
2 I intend to deal with the factual circumstances surrounding the events the subject of the first Indictment. For this purpose I draw heavily on the plea summary Exhibit 1A. You are a man who is born in December 1955. The first four complainants are also siblings, the children of Timo Juuso Antilla[1], whom you met in the late 1970s when you were both involved in a social group.
[1] A pseudonym
3 These charges cover a period of approximately five years from 11 October 1977 to 31 December 1982. The first complainant is Annika Antilla[2], who was born on 11 October 1970; the second is Keijo Antilla[3], born on 19 October 1965; the third, Harry Antilla[4], was born on 27 August 1967 and the fourth, Robin Antilla[5], was born on 27 August 1967. A fifth complainant, the cousin of those four siblings, Selma Antilla[6], was born on 17 August 1966. She was one of two daughters of Eeva Eloranta Kapenen[7], who was the sister of Timo Juuso Antilla. You married her in December of 1979. Your offending in relation to Selma spanned not only a period of time when she was a member of the extended Antilla family but also when she was your stepdaughter by marriage.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
4 You had met the Antilla family in 1977. You at that time held an official position with the social group. You became friendly with the family and started visiting them at their home. You also visited the family to babysit the children and you stayed overnight at their family home.
5 What follows is your despicable use of your connection with that family. You were trusted. That trust was abused time and time and time again. It is a frightening aspect of the offending against the children of Timo Juuso Antilla that you have sexually abused all four of the three males and one female.
6 The first complainant, Annika Antilla, is the subject of Charge 1, that you, between 11 October 1977 and 14 December 1979, led her into her bedroom and she followed you. You shut the door and closed the curtains. She remembers it being daytime. You lay on the floor with your legs straight out and your feet against the door. You got her to take her pants and underpants off so her lower body and vagina were exposed. You remained fully clothed. You got her to straddle your head so her legs and knees were either side of your head. You then licked her vagina with your tongue, licking on the inside of the vaginal lips near the outside of the vagina. She was between the age of seven to nine years old at the time. During and after that offending you told her words to the effect that it was their secret and that she was not to tell anyone. This is the first occasion when you gave such directions. I will articulate the other occasions when you have given similar directions for purposes which will become apparent later in my sentencing remarks.
7 The second complainant was Keijo Antilla. Charge 2 relates to him and that offending occurred between 19 October 1977 and 14 December 1979 when he was around 12 to 13 or so years old. You came into his bedroom. You lay on his bed. You started to masturbate and as you complained that you were not getting aroused, you asked the complainant to kneel over your head. You put both knees either side of your head, his pyjama bottoms were pulled down so that his penis was exposed. You licked the complainant's penis whilst masturbating yourself at the same time to ejaculation and then stopped licking his penis.
8 The third complainant is Harry Antilla and Charge 3 relates to him. That charge relates to events which occurred between 27 August 1978 and 26 August 1980 when he was around 11 to 12 years old. You and he were home alone in his family home. It was the afternoon and the complainant recalls that the lower half of his body was naked and you were in the bedroom also with the lower half of your body naked. You were masturbating and touching the complainant around the genitals. You moved your hands over the complainant's testicles, penis and genital area. You and the complainant were lying on the floor next to each other. You guided his hand to touch you around your genitals getting the complainant to rub your genitals. You ejaculated into a handkerchief.
9 Charge 4 relates to Robin Antilla. In relation to Robin, your offending against him is the subject of a representative count of no less than 11 incidents of masturbating his penis and in addition Charge 5 concerning the same complainant, which is a representative charge in relation to no less than eight instances of you sucking the complainant's penis.
10 On the occasions when you stayed the night with the Antilla family, you would either sleep in Robin, Harry or Keijo's bedroom. This offending occurred when you slept in Robin Antilla's bedroom overnight. He was asleep or almost asleep when you got into bed with him. You used to put your hand into his pyjamas and touch his penis pulling it up and down masturbating him, Charge 4. You made the complainant's penis erect. This went on for some 10 minutes and you asked if it felt good. You then pulled the blanket back and knelt in between the complainant's legs and pulled his pyjamas down. You then put the complainant's penis into your mouth and sucked it up and down. That relates to Charge 5.
11 This offending in relation to Robin only ceased after he told you to stop and if you did not he would tell his parents. You agreed to stop if the complainant agreed not to tell anyone. After that you no longer stayed in the complainant's bedroom. This is the second incident in which there has been a conversation where you have acknowledged the wrongness of your activities. At the time of that offending, Robin Antilla was about 12 years old.
12 The fifth complainant on this Indictment is Selma Antilla. She is the complainant in relation to Charges 6, 7 and 8 and, as I said, was the cousin of the other four complainants, later to become your stepdaughter by marriage. Charge 6 occurred between 1 March 1981 and 31 December 1982. She was approximately 13 years old. She was staying at her grandparents' address whilst they were overseas at the time. At that time her mother, later to be your wife, Eeva Eloranta Kapanen, was going out with you. One night you were staying over at the house. Selma Antilla was sharing a room with her older sister, Jenna[8]. Both girls had gone to bed and were asleep. During the night Selma Antilla awoke to find you standing over her. She felt you holding her hand on your penis and you were pulling her hand back and forth on your erect penis, Charge 6. She pretended to be still asleep and rolled over to face the wall.
[8] A pseudonym
13 Charge 7 is a representative of three instances of you touching her vagina during a period from 1 March 1981 to 31 December 1982. In early 1981, you, Selma Antilla, and her mother, Eeva Eloranta Kapanen, moved to another suburb. You came into her room at night and touched her on the vagina, on the skin. She told you to get out of her room. She told her mother the next day but her mother told her that she must have been dreaming.
14 The other occasions occurred on the night of her 15th birthday and on occasions after her birthday when her sister, Jenna, had moved back into the house. On the last occasion, she screamed, waking her sister. The next day, her mother kicked you out of the house and went to the police. Not long after that report, Jenna moved out of the house, then you moved back into the house. You started to taunt Selma Antilla, telling her that you could do as you liked as no-one would do anything about it. This is the third occasion in which you revealed your mind-set and your understanding of the gravity of the offending.
15 Charge 8 is the final charge in relation to Selma Antilla. It occurred between 1 November 1982 and 31 December 1982. On that occasion the two of you were at home. The complainant's mother, Eeva, was in hospital. It was around lunchtime. You gave Selma Antilla cigarettes and alcohol. She recalls being in her mother's bedroom and you were showing her pornographic images in a magazine. You were sitting on a bed next to the complainant. While she was looking at the magazine you pulled up her top and pulled down her pants. She was at this stage lying on the bed and you were rubbing your hands all over her body, touching her breasts, stomach and vagina. You said that you wanted to do something like what was in the pictures. You put your finger in the complainant's vagina and moved it around inside her vagina for a few minutes. You had only a shirt on at the time and you only stopped when someone knocked at the door.
16 In January 1983 you, the complainant and her mother helped a relative move his family to Adelaide. Prior to return Selma Antilla told her mother that she was not returning until the accused was no longer going to live with them. You and her mother left and she stayed with relatives for a couple of weeks and her mother then contacted her to say that you had left. She then returned home. You and your wife divorced in 1983.
17 On 18 May 2006 you were interviewed in prison in Queensland regarding the allegations. You declined to comment on the allegations. That, of course, is not to be held against you.
18 There are many things that may be observed in relation to the offending that I have so far described. The offending was base. It occurred in the children's own home where they ought to have felt secure but where they were not. This was not opportunistic offending, other than in the sense that you took the opportunity whenever you chose to do to offend against these young children. You were a grown man. You were trusted. Time and time and time again you grossly abused that trust in the most despicable manner.
19 I will now turn to the circumstances surrounding your offending against Olga Yli-Hannuksela[9] which is the subject of the second Indictment. The complainant was born on 31 August 1977. She and her half-brother, Victor Yli-Hannuksela, both biologically the children of Anu Yli-Hannuksela but the children have different fathers. Anu Browne was previously married to Akseli Yli-Hannuksela between 1977 to late 1986 but after separating from Akseli Yli-Hannuksela on 1 October 1986 she moved out of the matrimonial home and commenced living with you in a rented unit.
[9] A pseudonym
20 The children at this time lived with Akseli Yli-Hannuksela During 1987 Anu Yli-Hannuksela and you moved into a house in the same suburb. Her children, Olga and Victor, then lived with her and you and spent every second weekend with Akseli Yli-Hannuksela. Anu Yli-Hannuksela married you in 1990 and changed her name to Browne. You and Anu Browne had three children with that relationship: Layla[10], Nicholas[11] and Myriam[12] born in 1987, 1991 and 1995. You were later to offend against your own son in circumstances which I will come to though, of course, you have been sentenced for those matters and it is no part of the sentencing process here to further sentence you in relation to those matters. They are of import in other and different ways.
[10] A pseudonym
[11] A pseudonym
[12] A pseudonym
21 Charge 1 of the seven charges in relation to Olga Yli-Hannuksela relates to a time period between 1 January 1987 and 30 June 1987. During January 1987 you, Anu Browne, your wife, and the complainant, Olga Yli-Hannuksela, who was approximately nine years old, went on a joy flight. Afterwards she returned to your home. While they were at your home, the complainant's mother, Anu, who was pregnant felt tired and unwell and fell asleep in the lounge room. The complainant was sitting on a bean bag in front of you. You came and sat beside her on the floor, talking to her. In the immediate presence of her mother asleep. You then placed your hand inside this nine‑year-old girl's underwear. You fondled and stroked her vagina, whilst you were talking to her, for something in the order of 20 minutes.
22 You got up and went to the bathroom. When you returned you continued to talk to her and moved her underwear to one side exposing her vagina. You touched her around the vagina, around the lips and clitoris whilst holding her underwear to one side. This activity went on for about half an hour whilst you continued to talk to her and her mother slept. After the mother awoke, they were driven home by you. When she was at home, the complainant told her mother that you had touched her in her pants. Her mother told her that she would speak to you about it.
23 Nothing seems to have resulted for Charge 2 ensued which is a representative instance of five occasions of rubbing the complainant's vagina under her underwear whilst at the family home between 1 January 1987 and 26 September 1988 when she was between 10 and 11 years old. She was sitting on the steps of the front entrance veranda at the house. You sat next to her quietly talking to her. You placed your arm around her in a hug and put your hand inside her underwear, moving the underwear to one side so that her vagina was exposed. You stroked her, her labia majora and her clitoris.
24 The third charge occurred between 1 June 1987 and 31 December 1987 when the complainant was about nine or 10 years old and you had worked at a media outlet in Melbourne. During the school holidays she went with you into your office when her mother was unwell and she became bored and tired and had a nap under your desk whilst you worked. There were other employees in the vicinity. Whilst sitting at the desk, you rubbed her vagina with your toes. The boldness which you exhibited in relation to your offending whilst her mother was asleep can only be said to be matched by your boldness in touching her with your toes under a desk.
25 Charge 4 relates to a representative count encompassing two occasions between 1 June 1987 and 31 March 1988. They are representative of touching of the complainant's genitals whilst in a motor vehicle when she was about 10 years old. The complainant was apparently a picky eater. She would often not eat and this frustrated her mother. Frequently you took the complainant to get takeaway when she would not eat. On occasions you would molest her whilst in the car by rubbing her on the vagina inside her underwear.
26 Between 1985 and 1989 you were a volunteer member of the State Emergency Service. On one occasion, the complainant accompanied you in the truck. You were in the rear passenger compartment. Whilst talking to her you put one hand under her tracksuit pants and underpants and touched and fondled her vagina, the touching which lasted for some seven minutes. On another occasion she recalls being touched in the same way when she and you were in the car driving to collect a radio antenna.
27 It seems no place was safe for her as further illustrated by the next Charge 5. When again she was about 10 years old, between 1 June 1987 and 31 December 1987 you took her to the doctor as she was ill with a bad cold or a virus. The doctor required that she provide a urine sample. She was given a specimen jar and directed to the toilet. You accompanied her. She was unable to urinate and you touched her vagina and rubbed her clitoris telling her that would help her to urinate. She was not able to do so. You went back to the doctor's and left the surgery. Boldness could go no further.
28 Charge 6 relates to an incident where you touched her vagina with your penis. It is also representative of touching her vagina with your hand on that same occasion. This incident occurred between 30 June 1988 and 26 September 1988 when she was just 11 years old. You came into her bedroom. It was around the time of her birthday and she was asleep in bed. She woke to hear you walking up the hallway. You stood in the bedroom wearing a robe but you were naked underneath. She pretended to be asleep. You approached her. She rolled over onto her stomach so that you could not touch her vagina. You dragged her to the side of her bed so that her legs were hanging over the side of the bed and her upper body was on the bed. You took off her underwear and touched and rubbed her vagina with your hand. You tried to force her legs open. She resisted and tried to keep her legs closed as hard as she could. You had one hand on the inside of each leg, trying to open her legs. After a while you stopped and left the room.
29 You stood in the hallway touching your penis and rolled a condom onto your penis. Whilst this was happening, she was lying on her bed on her stomach. You came back and again pulled her to the side of the bed so that her back was on the bed and her legs were hanging over the bed. You knelt on the ground and forced her legs open. You rubbed your penis on her vagina and you had an erection. She broke away and you left the room.
30 Charge 7 is the final charge in relation to this complainant and the second Indictment. It relates to an occasion which occurred on 26 September 1988 when she was about 11 years old. She was getting ready for school on that day and was getting dressed in the lounge room near the wall heater. She was standing up. You were kneeling in front of her touching her vagina. Her mother walked into the room and saw you in that pose with her daughter's underpants down near her ankles. Her mother saw you gazing at her daughter's pubic region. You had your hands on her hips. You got up when you were seen in that position. Later that day the complainant's father collected her to go to live with him.
31 As an overview these incidents occurred frequently. They occurred in various places. You did not seem to be in any way inhibited by the location in which you engaged in this gross behaviour. As a result of the incident the subject of Charge 7, the mother arranged a referral to a social worker at the Children's Court. There is some dispute as to what then ensued but it could not be doubted that the gravity of the matters was not brought home to you. Not that it needed to be.
32 Your actions were deliberate. I am therefore to deal with you in relation to no less than six different complainants, all young, all abused by you in circumstances where you were in a position of trust.
33 It is useful to make at this stage some evaluation of you as a man and how you interact with others in the broader community. In the statement of Ilda Antilla[13] whose husband is Timo Juuso Antilla who I have referred to, at p.80 of the depositions, paragraph 8, she states:
"On first meeting John he rode his motorbike to our family home. Even from the outset I considered him rather strange. He had a baby face and was about 24 years old. He also appeared somewhat educated, intelligent and personable, however there was still something strange about his behaviour that I did not trust. John appeared to have a natural approach to children and could easily entertain them. He was funny, courteous and helpful when in our home. However, it seemed strange to me that he appeared to have little contact with peers appropriate to his age and little interests outside of the social group or my family. On the first meeting with John he stayed for dinner. It was not unusual in our home to invite people to stay for dinner and we encouraged a social and friendly environment for visitors as also the children's friends - it was a case of the more the merrier."
[13] A pseudonym
34 In a character reference tendered on your behalf by your counsel and became Exhibit E4, Luke[14] and Nicole Glover[15] in a joint reference say this:
"We met John Browne over 20 years ago through my amateur radio activities. At the time he was a hardworking editor of an amateur radio magazine, dedicated to promoting the hobby. Later we discovered we had mutual interests in motorcycling, motor cars and classical music and my wife and I became good friends with him. John is an accomplished classical pianist. Prior to being editor of the magazine, John had a long career in. During these years he mixed with many prominent business people and journalists.
Despite his heavy workload John was also a tireless volunteer for fire and rescue work and other emergency services support groups.
We've always found John to be a loyal, honest and helpful friend and we have always been impressed by his enthusiasm, dedication, cheerfulness and the amount of voluntary time he gave. At present John is a full-time carer for a seriously ill elderly cancer sufferer and we know he will be diligent and compassionate in that care."
[14] A pseudonym
[15] A pseudonym
35 As is plain from that material and the extraordinarily comprehensive report of Janelle Bardsley, psychologist, Exhibit E1 - which runs for no less than some 42 pages, she describes in detail your background, it would appear that you have had some gifts bestowed upon you. You are a high-functioning individual. You had a high work ethic. But there was also this other side to you as revealed in the materials I have thus far considered.
36 Three victim impact statements have been tendered which became Exhibits 1B, 1C and 2B. More victim impact statements were tendered but I will utilise these. Keijo Antilla in his victim impact statement states among other things:
"The sexual abuse that I suffered at the hands of John Browne has had a profound effect on my emotional life. I have never been able to trust anyone, particularly anyone in authority: parents, teachers or police officers."
Later he states:
"I have learned that in order to survive my childhood I blocked my emotion and this has led to a lifetime of trouble, not knowing when someone was doing me harm. I frequently find myself in abusive relationships.
Also I have endured a lifetime of post-traumatic stress disorder, sleepless nights, hot sweats, nightmares, daymares, the same horrible memories going around my brain, day and night, driving me insane, like a horror movie in my head, stuck on a continuous loop. There were times when suicide seemed the only way out."
Keijo Antilla was the victim in relation to Charge 2, Indictment 1.
37 In the victim impact statement of Selma Antilla, who is the complainant in relation to Indictment 1, Charges 6, 7 and 8. She writes, among other things:
"I have in numerous ways, such as loss of childhood" -
this relates to emotional impact -
"I have in numerous ways, such as loss of childhood, no self-esteem, inability to trust people, depression, feeling of being alone - even when around others, fear of not being good enough, accepted or wanted. Living with the guilt of not being able to help myself, loss of self-worth, I self-loathe… Poor relationships decisions, unable to have faith in those close to me. It has made relationships with my family stressful because it has caused me to be unable to forgive and sometimes to accept situations and actions, a negative change in personality, a feeling of being alone."
Later she writes of her deep down anger of being hurt, being let down and not been protected by the people who should have:
"… Felt the need to escape the shame with the abuse of alcohol and substances."
38 In relation to the victim, Olga Yli-Hannuksela, who is the complainant in relation to the second Indictment she writes:
"I feel quite unwell, sickly and stressed all the time. Always tired, like I am fighting a battle. I do not find much enjoyment, as much as I try desperately to be positive and to smile. I always feel like I am forcing it. I do not feel normal. I do not feel that I fit in anywhere or with anyone. I do not feel like I am like “everyone else”. I am still grieving for the child that I was, that is still lost. That little girl I never got to know, that never got to grow up like a normal child. I still grieve for the family that I lost and was taken away from; for the effects of my immediate family to the present day and for the effects on my children in their development going into the future, being limited in my condition."
She later on writes:
"I live in a bubble to protect myself I think."
She further writes:
"I was raised in a family dedicated to The Church of Jesus Christ of Latter Day Saints, also known as Mormon. I did not know what a bad person was. While I was the only child of my parent's marriage, I was often asking when I would have a little brother or sister to play with but my parents separated before this ever happened. I was over the moon with happiness when my mum told me that she was having a baby with my new stepfather. I would have done anything for that and for the family to be together. In this new relationship we were banned from going to church.
My hopes for the future are that I can repair some of the damage through further counselling, as much as I am aware that my problems and needs will always be constant and changing. I want to finish my degree and hold down a job I love. I want my damage not to affect the lives of my children. I want to create a safe environment for my family."
39 The effects of your offending on your victims have been profound. They are continuing and likely to continue. It would seem that they feel, or at least some of them, that you have stolen their childhood and unsurprisingly so.
40 You have two prior convictions for dishonesty offences, back in 1973 and 1978. For the purposes of these sentencing remarks and the sentencing process I entirely put them aside and treat you as a man who comes before the court without any prior criminal history, a matter which you can draw upon to your credit.
41 It is necessary to go to two other occasions where you have been sentenced in Queensland for similar offending, not as I have indicated for any purpose of imposing further punishment upon you in relation to that offending. You have been sentenced and you have served those sentences. But they are relevant in terms of arriving at what is the appropriate total sentence and also taking into account the period of time of 11 months where it was the expectation that you should have been released on parole but were not, through no fault of your own.
42 They are also relevant in assessing whether you pose a further risk of reoffending. The first sentence arose in these circumstances. You were placed in custody for the offending which is described later in a decision of the Court of Appeal of the Supreme Court of Queensland in R v. EH (2008) QCA 67. Having been placed in custody in relation to those matters on 20 April 2006, in relation to offending with spanned from July 2003 to April 2006. You were sentenced on 13 June 2007. By that time you had spent some 15 months in custody and for reasons which are not apparent, this period could not be declared as a period served. Its significance appears later on.
43 In the hearing of the appeal you were resentenced on 28 March 2008 by the Court of Appeal. The court was of the view that a head sentence of eight years was appropriate less the 15 months then having been served, reducing the head sentence of six years and nine months. You were declared eligible to be released on parole after having served 32 months, ie, 20 December 2008. In his judgment Holmes JA, with whom McMurdo P agreed stated:
“The applicant was convicted, on a plea of guilty, of one count of maintaining an unlawful sexual relationship with a child under 16 years between July 2003 and April 2006, two counts of indecent treatment of a child under 12 years, with a further aggravating circumstance that the child was in his care, and six counts of indecent treatment of a child under 16 years, with the same aggravating circumstance. He was sentenced to seven years and nine months imprisonment on the maintaining charge with an eligibility for parole date set at 20 April 2009, which, allowing for a period of pre-sentence custody which could not be declared, made the applicant eligible for parole after three years in custody. Concurrent sentences of four years imprisonment were imposed on the indecent treatment counts.”
44 The subheading, The Factual Basis for Sentencing, His Honour continued:
“The maintaining count concerned a complainant who at the relevant times was aged between 12 and 14 years. He suffered from the difficulties associated with Asperger's syndrome. Six incidents were identified to support the maintaining charge. They occurred on four different occasions while the complainant was staying at the applicant's house, the last occasion being while the applicant was on bail on the indecent treatment charges, with the condition that he not have unaccompanied contact with any child under the age of 16 years. At that time, the applicant's own son had been removed from his care and he invited the complainant, his son's friend, to visit him. Four of the relevant acts involved masturbation of and sucking of the child's penis. The fifth concerned the applicant rubbing lubricant on the complaint's penis, immediately followed by the sixth act, the applicant procuring the complainant to sodomise him.
The indecent treatment charges involved three different boys, friends of the applicant's son, who stayed at his house on various occasions. Six of the counts involved relatively brief incidents of touching the genitals or genital area of two of the boys, A and J. A was only 11 years old at the time two of the assaults on him occurred, while in the other instances A and J were aged 12 or 13. The remaining two counts concerned two separate occasions on the same evening when the applicant showed his own son and two friends, A and H, pornographic films, having first given them vodka cruisers to drink. The applicant’s son and A were then 13; H was 14.”
45 The second sentence imposed by a court in Queensland was imposed by Judge Rafter in the District Court on 10 March 2011. The period of offending there concerned a period between 13 October 1999 and 15 October 2004. His Honour concluded that a three-year sentence concurrent should be imposed and circumstances which I will come to briefly, the parole eligibility date was set the very same date as the sentence, namely 10 March 2011. However you were not released on that date but released on 22 February 2012, some 11 months later.
46 It is plain from His Honour's sentencing remarks that the offending occurred, as I have said, between October 1999 and October 2004. His Honour stated:
"You are 55 years old. You were aged 44 to 48 years of age at the time of the offences. Your criminal history primarily relates to the offences for which you are presently serving the sentence. You were sentenced in the District Court at Southport on 13th July 2007 for a series of sexual offences including two relatively minor offences committed upon your son, who is the complainant in relation to the charge to which you have pleaded guilty today."
I have already articulated the relevant passage in Holmes JA's judgment in relation to that.
47 The facts that His Honour Judge Rafter later stated:
"The facts in relation to the offence to which you have pleaded guilty today are set out in the schedule of facts, which is Exhibit 3. The complainant is your son. In the period covered by the charge which is between 13 October 1999 to 15 October 2004, you sexually interfered with your son by masturbating him and performing oral sex upon him. He was aged eight or nine to about 13 at the time of the offence. You strike me as a controlling individual and it is an aggravating feature that the boy suffered a mild degree of autism."
48 His Honour continued later on:
"I note that you have found imprisonment a terrible ordeal."
His Honour then continued:
"Ordinarily an offence of this seriousness would warrant a sentence of approximately five years imprisonment. Obviously the submissions made by Mr Power takes into account the need for the court to have regard to the totality principle in sentencing."
I emphasise that passage. His Honour concludes:
"However, it is now over two years since your parole eligibility date has passed and taking into account that fact as well as the difficulties you have encountered in gaol, I have decided to accept Mr Nicholson's submission and impose a three year concurrent sentence. I fix today's date as your parole eligibility date."
49 As is plain from His Honour's sentencing remarks, he took into account the principle of totality, as between the sentences that he imposed and the sentences that had already been imposed upon you. Nonetheless, I must take into account principles of totality in sentencing you for you have lost the opportunity of having the sentences imposed consistent with those principles, through no fault of your own. Further I must impose a sentence which in total is appropriate as between the various offences the subject of the Indictments 1 and 2 and the sentence of imprisonment imposed in Queensland.
50 I wish now to deal with some aspects of the issues concerning your parole and the consequences that are relevant in me sentencing you. In the psychological report of Janelle Bardsley which I have referred to, she states at paragraph 17:
"Mr Browne presents with protective factors against the future risk of offending. Specifically, there was no evidence of psychopathy or antisocial personality disorder. Mr Browne has a well developed capacity for empathy and is extremely remorseful for the offences now being considered, some 30 or more years after the fact and is greatly distressed by his current circumstances.
As early as July 2007, Mr Browne formally applied for an interstate transfer to Victoria on compassionate grounds as all his immediate family lived in Victoria. The application was finally refused more than two years later. At the same time in July 2007, Mr Browne also applied for a transfer to Victoria on legal grounds so that he may finally address these matters before a Victorian court. He reports that this application was received but was not ever proceeded by Queensland authorities. In February 2012, when he was released to parole, he applied to the Southern Queensland Regional Parole Board for permission to travel to Victoria to confront today's matters. The parole authorities also refused to permit him to travel to Victoria to appear in court. As soon as his parole conditions expired in April 2014, he contacted the Victoria Police, and then voluntarily travelled to Victoria."
51 She continued at p.38, earlier in her report, saying at paragraph 14:
"In a late court appearance in 2011, Mr Browne also admitted to other offences against his teenage son at which point the judge noted that Mr Browne should have been released to parole a long time before, ordering that no further time should be served. He was finally released to parole in February 2012, after spending his final year in custody in a full-time High Intensity Sexual Offender Program, HISOP. He completed his parole term without further offending and has spent almost three years since completing his imprisonment living in the community in a totally law abiding manner."
52 These matters disclose a need for me to make an adjustment in accordance with the principles in R v Renzella [1997] 2 VR 88 to reduce the sentence that I would otherwise impose by a period of 11 months. It is borne steadily in mind also that you have been in custody for a period from 20 April 2006 until your release on 22 February 2012, a period of a little less than six years. It is now some three years since your release and you are to be reincarcerated, a matter which I take into account. This is through no fault of your own nor, should I add, anybody else's, particularly the authorities in Victoria but it is the fact.
53 You were interviewed in relation to these matters whilst in custody on 18 May 2006, charged on 13 February 2007 and as I have repeatedly said, released on 22 February 2012. You have been anxious to see these matters behind you and have surrendered yourself to the Victorian authorities voluntarily. You have had these matters hanging over your head for a very considerable period of time during which your fate has been unknown to you, other than it must involve a further period of custody.
54 In order to achieve that adjustment, pursuant to the principles articulated in Renzella's case, I intend to adjust the sentence on Indictment 1, Charge 4, downwards, which is the base sentence by a period of 11 months. I also intend to reduce the parole period that I have otherwise imposed downwards by a period of 11 months. For that period of 11 months is a period where, through no fault of your own, but because of the lack of availability of the required sex offending course has prohibited your release on parole as anticipated by the Court of Appeal at an earlier point in time and by His Honour Judge Rafter.
55 Turning to, in broad terms, your personal circumstances. You are now a 59‑year-old man, the second of six children. Your father was a mechanical engineer and your mother a teacher. They were both high achievers. There was discord between yourself and your parents, you suffering from autism. You were intelligent but apparently poorly motivated and that also brought you into conflict with your parents. Save for years 4, 5 and 6, you were educated at Carey Baptist Grammar School as a three-year-old, right through to your year 12. You found yourself isolated at school and to a degree I accept you were socially isolated in your latter life.
56 You were academically able. Your work ethic is demonstrated by commencing work at the Postmaster-General's department before moving to a country newspaper. You successfully worked in journalism between 1981 to 2001. You were at work a perfectionist. You moved to Queensland in 1999 and operated a photography business. In August 2005 you were charged in relation to some of the offences in Queensland and as I have said, since April 2006 to February 2012 you have been in custody there.
57 I do not intend to go through in any further detail your background. They have been addressed in the detailed submissions by Mr Dann on your behalf and in the psychological report. There is in that report, passages quoted by Ms Bardsley which suggest that you did not know that what you were doing was wrong. Some examples, at p.15, paragraph 9.1:
"Mr Browne articulated he did not emotionally mature or generally did not understand that his actions in those years were wrong or illegal. It is worth noting that once he had undergone intensive adult therapy for 12 months, he gained knowledge and insight into his cognitive disorders and manipulative behaviour."
Later, p.34, paragraph 13.2, there is a passage:
"Mr Browne stressed that he really did not understand his behaviour at all at that time and did not comprehend that what he was doing was in any way wrong."
58 And in paragraph 13.2 she writes:
"Mr Browne ruminated that had someone ever actually spoken to him about the abuse being both morally and legally wrong, he believed he would have stopped it at once and sought help."
59 Insofar as there is some suggestion that "he did not know what he was doing was morally and legally wrong", it is utterly rejected by me. You were a man then as now fully cognisant of the wrongness of your acts both morally and legally as revealed by what you said to three of the complainants, by what you did, by the number of complainants that you offended against, as well as your own son and the gravity of the offending that I must sentence you for, as well as the gravity of the offending for which you have already been sentenced by two other courts.
60 In paragraph 13.3, Ms Bardsley states:
"More than 35 years after his offending commenced, with the benefit and hindsight of a great deal of therapy delivered to Mr Browne and his final emergence into mature adulthood, he recognises and greatly regrets the grave mistakes he committed at that time and repeats that once again, nobody challenged him about these matters until he was already in custody in Queensland."
61 Well, there seems to be some acknowledgment of the gravity of his offending there, though if the matter was left there I would have considerable doubts about the presence of any genuine remorse.
62 However, here you have pleaded guilty to these offences. You have pleaded guilty to all the offending before the court. Pleas of guilty, particularly in cases such as this, cannot be underestimated. Not only in terms of their utility for it has saved the community the costs of potentially six separate trials. But also it has spared all six of the complainants the need to give evidence and to be exposed to cross-examination. Here the matters proceeded as I understand it by way of direct hand-up brief. Furthermore, your pleas of guilty are some evidence of your regret and remorse.
63 In addition, in the psychological report, Ms Bardsley, in paragraph 13.5, says:
"Mr Browne said Olga's mother would suggest this was an expression of guilt for him trying to buy his way out of trouble. Instead he emphasised he had always tried to treat Olga exactly the same as he treated his own daughter and wanted her to have everything. Adding repeatedly that he so very deeply regretted his offences against her. His remorse appears genuine."
64 Of particular moment in your favour is the letter that you wrote and which became Exhibit E2. It is not often that letters such as this are produced from accused addressed to the court and addressed to the victims. In it you commence in this way:
"I would like to express my sincere and very genuine remorse to the court for the offences which have brought me before you today. I betrayed the trust of people who should have been able to rely on me. Not just my vulnerable victims but their parents, extended families and friends as well. It was not really until I had spent virtually a full year and a half in full-time behavioural therapy and treatment in 2010-2011 that I truly appreciated the effect and impact of my actions. As the enormity of the whole thing finally sank in I knew I could never again offend in any way, not just the selfish actions of a sex offender."
You continue a little later:
"I am absolutely a changed man, full of genuine remorse and determined to approach the rest of my life as a mature adult."
65 You further describe your relationship with your partner, Erlend Borgen[16], whose has also written a reference, Exhibit E3. In a letter written by your brother, Peter Browne[17], Exhibit E6, he states:
"I believe that he is well and truly remorseful and changed - the first step along the way was to recognise within himself the problems and through the judicial system pay penance for his actions."
[16] A pseudonym
[17] A pseudonym
66 As to the question of recidivism, Ms Bardsley states in paragraph 12.3, that:
"The RSVP assessment reveals Mr Browne represents a low risk of recidivism."
She further states at paragraph 15.1:
"In 2013, Mr Browne undertook the Sex Offender Maintenance Program, SOMP, in the community as a part of therapy delivered. This program reinforced concepts and life-altering factors from HISOP."
As to recidivism, she states:
"On these instructions, Mr Browne was deemed to be a low moderate risk and a low risk respectively."
And finally, at paragraph 17.3, she opines:
"He is now financially independent and has supportive social networks. Psychometric testing, clinical and risk assessment generally place Mr Browne in the low risk for reoffending. The low recidivism risk is further mitigated by his completion of the HISOP and SOMP sexual offender treatment programs."
67 With some hesitation I accept the assessment that you are now low risk, only because of you having completed those programs and learnt from them the dreadful consequences of your offending and have determined not to reoffend. I have adverted to the fact that there has been a delay since your interview in relation to these matters on 18 May 2006 to now February 2015, a period of something less than nine years. There has been a further delay whilst you have been released into the community from 22 February 2012 to today.
68 You have utilised the period whilst you have been in prison and on parole in Queensland and since to rehabilitate yourself as best as you can. You now come to a point where the criminal matters against you are finally coming to a conclusion with you now to return to prison at age 59. I am satisfied that your prospects of rehabilitation are real and you have done as much since as you can to atone for what you did.
69 Your health is poor. You have various ailments including varicose veins, tinnitus, hearing loss, leaking heart valve, high blood pressure and other matters which have been drawn to my attention. Judge Rafter described your experience in gaol as terrible. I am satisfied that in this particular case imprisonment and as it is re-imprisonment for you in those circumstances will be particularly burdensome and I have moderated the sentences that I would otherwise impose.
70 You yourself were the victim of sexual abuse as a youth but you do not in any way attribute that to your offending, as detailed in paragraph 9.2 of the psychological report. You therefore come before the court with powerful mitigating circumstances in your favour. Those matters which I have endeavoured to address, including your rehabilitation, your pleas of guilty, your remorse. This offending, as I have stated, was a gross breach of trust. The period of offending was lengthy. You did as you liked to satisfy yourself. No place was safe for these children: their own bedrooms, doctor's surgery, cars, work and other places.
71 You offended against males and females. All the children were young. They were all vulnerable. You took advantage of their vulnerability. You told some of them not to tell. You did not cease your activities until your stepdaughter, Selma Atilla, refused to return home. And in relation to Robin Antilla when he stood up to you, as a young boy, and threatened to tell his parents against you unless you desisted.
72 General deterrence, that is deterring others is the principal sentencing factor in sentencing you.
73 In DPP v Peter John Toomey (2006) VSCA 90 Buchanan JA stated at paragraph 14:
“Nevertheless, despite the antiquity of the offences and the respondent's apparently blameless life since then, in my opinion the sentences so devalue the gravity of the offences that it is to be inferred that the sentencing judge fell into error, although no particular error can be identified. I am conscious of the limitations inherent in Crown appeals. They should only succeed in rare and exceptional cases where it is necessary to establish some point of principle. See, e.g., Everitt v. The Queen.[18] In the present case I consider that the sentence represents a manifest inadequacy in sentencing standards. The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demanded a significant sentence. General deterrence and denunciation of the respondent's conduct are of the first importance.”
[18](1994) 181 C.L.R. 295.
74 His Honour continued in paragraph 17, in the concluding sentences:
“The first relates to the seriousness of the respondent's conduct. The respondent offended against ten separate victims, all of whom were quite young and were not only directly under his control but in a physical situation where they were effectively powerless. In consequence of their youth, personal circumstances and the fear that they might be further singled out as subjects for corporal punishment, they remained silent. The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons. Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.”
75 Your conduct is of course to be denounced. I have done so on many occasions during the course of delivering these sentencing reasons. There is also in this case the need for specific deterrence, deterring you, although less so in the circumstances which I have outlined. Just punishment as the protection of the community are also matters that I must take into account. I have adverted to the principle of totality and have consonant with that returned repeatedly to the sentences that I have had in draft form.
76 You are to be sentenced, as a serious sexual offender, for the purposes of all charges on both Indictments, although appropriately no disproportionate sentence is sought. As I said at the beginning of these sentencing remarks, the maximum penalty is five years. The maximum penalty for the offending for which you have pleaded guilty, had they occurred in recent times, would be considerably more.
77 But I must take into account what was then the maximum penalty and sentence you as if you were sentenced as an offender, approximate in time to the offending rather than now. To do otherwise would single you out for heavier punishment than those who would have been punished for the offending approximate in time to these matters. I therefore sentence you in the following way - on Charge 1, you are sentenced to be imprisoned for 12 months; Charge 2, you are sentenced to be imprisoned for 12 months; Charge 3, you are sentenced to be imprisoned for 12 months; Charge 4, you are sentenced to be imprisoned for 25 months. I indicate that that sentence on Charge 4 is the base sentence. I have reduced that sentence from three years to 25 months in order to take into account the 11 months that you were in prison from the date when Judge Rafter sentenced you. On Charge 5, I sentence you to be imprisoned for 30 months. On Charge 6, I sentence you to be imprisoned for 12 months. On Charge 7, I sentence you to be imprisoned for 18 months. On Charge 8, I sentence you to be imprisoned for 18 months. Those are the sentences on the first Indictment. I direct that three months on Charge 1, three months on Charge 2, three months on Charge 3, eight months on Charge 5, three months on Charge 6, four months on Charge 7 and four months on Charge 8 be served cumulatively upon each other and cumulatively upon the base sentence of 25 months.
78 In relation to the second Indictment, concerning Olga Yli-Hannuksela, on Charge 1, I sentence you to be imprisoned for nine months. On Charge 2, I sentence you to be imprisoned for 24 months. On Charge 3, I sentence you to be imprisoned for nine months. On Charge 4, I sentence you to be imprisoned for 12 months. On Charge 5, I sentence you to be imprisoned for nine months. On Charge 6, I sentence you to be imprisoned for 12 months. On Charge 7, I sentence you to be imprisoned for 9 months. I direct that two months on Charge 1, six months on Charge 2, two months on Charge 3, three months on Charge 4, two months on Charge 5, three months on Charge 6 and two months on Charge 7 be served cumulatively upon each other and cumulatively upon the sentences imposed on the Indictment, Indictment 1.
79 This produces an overall total effective sentence of six years and one month. I note that but for the application of the principles in Renzella, I would have imposed a sentence of seven years. I set a nonparole period of three years and seven months and I note that but for taking into account the 11 months in relation to the principles concerning Renzella, I would have imposed a period of four and a half years. Pursuant to s.6AAA of the Sentencing Act 1991, but for the pleas of guilty, a sentence of nine years one month or 10 years, absent the principles in Renzella, with a nonparole period of six years one month would have been ordered.
80 The schedule of sentences I direct to be an annexure to my sentencing remarks. I declare you to be placed on the sex offender register for life. I declare that there is no pre-sentence detention.
81 Mr Browne, I have made an order that a forensic sample be taken by way of a scraping from your mouth with a swab. I inform you that if at the time a request is made of you, you do not consent to the taking of a scraping from your mouth under the supervision of an authorised member of the police force, then police may use reasonable force to enable that scraping to be taken. Do you understand? You may be seated, Mr Browne.
82 Well, thank you, Mr Dann, for your excellent plea. I also ask that Ms Pickett be thanked as I think I did on a previous occasion. Thank you for your attendance, Mr Donaghy.
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Indictment E11613105 – Atilla Indictment
| Charge No. | Description | Max Pen | Imprisonment Imposed | Cumulation |
| 1 | S55(1) Unlawfully/Indecently Assault A Girl Licking vagina (Annika Atilla) 1977-1979 | 5 years | 12M | 3M |
| 2 | S68(3A) Indecent Assault On A Male Person Licking the complainant’s penis whilst masturbating himself (Keijo Atilla) 1977 - 1979 | 5 years | 12M | 3M |
| 3 | S68(3A) Indecent Assault On A Male Person Masturbating complainant’s penis (Harry Atilla) 1978 - 1980 | 5 years | 12M | 3M |
| 4 | S68(3A) Indecent Assault On A Male Person Representative charge of 11 instances of masturbating complainant’s penis (Robin Atilla) 1979 | 5 years | 25M | 25M Base |
| 5 | S68(3A) Indecent Assault On A Male Person Representative charge of 8 instances - Sucking of complainant’s penis (Robin Atilla) 1979 | 5 years | 30M | 8M |
| 6 | S 44(1) Indecent Assault Placing her hand on accused penis and masturbating (Selma Atilla) 1981-1982 | 5 years | 12M | 3M |
| 7 | S44(1) Indecent Assault Representative charge encompassing 3 instances, Touching vagina (Selma Atilla) 1981-1982 | 5 years | 18M | 4M |
| 8 | S44(1) Indecent Assault Digital penetration of vagina (Salma Atilla) 1982 | 5 years | 18M | 4M |
Indictment E11612928A – Olga Yli-Hannuksela Indictment
| Charge No. | Description | Max Pen | Imprisonment Imposed | Cumulation |
| 1 | S44(1). Indecent Assault – touching vagina and clitoris under underwear 1987 | 5 years | 9M | 2M |
| 2 | S44(1). Indecent Assault – Representative charge of 5 occasions, rubbing vaginal area under underwear at family home 1987 – 1988 | 5 years | 24M | 6M |
| 3 | S44(1). Indecent Assault – Rubbing vaginal area through underwear with toes at his workplace 1987 | 5 years | 9M | 2M |
| 4 | S 44(1). Indecent Assault – Representative charge of 2 occasions of touching complainant’s genitals under her underwear while accused was driving 1987-1988 | 5 years | 12M | 3M |
| 5 | S 44(1). Indecent Assault – Rubbing her genitals whilst at doctor’s surgery 1987 | 5 years | 9M | 2M |
| 6 | S 44(1). Indecent Assault – Representative charge of touching vagina with penis and hand in bedroom 1988 | 5 years | 12M | 3M |
| 7 | S 44(1). Indecent Assault – Last occasion of touching vagina in loungeroom 1988 | 5 years | 9M | 2M |
Total effective Sentence - 6 years 1 month (pre Renzella 7 years)
Non Parole Period – 3 years 7 months (pre Renzella 4 ½ years)
Pursuant to s6AAA of the Sentencing Act 1991, but for the pleas of guilty a sentence of 9 years 1 month (pre Renzella 10 years) with a non-parole period of 6 years 1 month would have been ordered.
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