Director of Public Prosecutions v Brumby

[2018] VCC 408

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 17-02285

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN ANDREW BRUMBY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	5 April 2018
DATE OF SENTENCE:	5 April 2018
CASE MAY BE CITED AS:	DPP v Brumby
MEDIUM NEUTRAL CITATION:	[2018] VCC 408

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Plea of guilty to one charge of sexual penetration of a child under 16 (representative charge) – offender aged  21 – antisocial, street offending criminal record – mild traumatic brain injury –low risk of sexual reoffending.

Sentence: 2 year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	OPP
For the Accused	Mr Z. Menon	Doherty Legal

HER HONOUR:

1Shaun Andrew Brumby, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  This is a representative charge covering two episodes of sexual intercourse with the complainant, who was aged nearly 15 at the time.  You were then aged 21.

2You had begun communicating with each other via Facebook in January 2016 and met in a park in February 2016.  You knew how old she was, and she had sent you photographs of herself naked.  At that first meeting in the park you had sexual intercourse with her in a toilet block.  This happened on more than one occasion, with the second occasion being the one included in the representative charge.

3During this time the complainant's parents had become concerned about her behaviour and the fact that she was often in the company of older people, including you.  They suspected she might have been having sex with you and they took steps to obtain an intervention order to prevent you from contacting her.  At this stage she had not told her parents what had been occurring.

4The intervention order was served on you on 5 April 2016, but you continued to see the complainant, to have contact with her via Facebook and text messages.

5On 19 April the police went to your home and arrested you, and found the complainant hiding in the ceiling.  You were charged with breaches of the intervention order and some related offences and were sentenced by way of a fine, also a period of 23 days in prison, which you had by then already served, and a Community Correction Order which you have since completed.

6These matters are not prior convictions but they lend context to your offending, by way of an aggravating feature.  Although the prison sentence you served is also a matter to be taken into account as a punishment connected to the relationship that you did have with the complainant for a relatively short period of a few weeks some two years ago.

7As for your criminal history, you began getting into trouble with the law as a teenager after you had left school in Year 11.  You had found school difficult and you had left in order to take up brick laying with your father, and you are still employed in that job.

8You do have prior convictions and a record of court appearances for a range of offending, mainly of an antisocial or street offence type, consistent with being intoxicated, but also for some driving offences at the higher end of the range.  That offending had ceased by the time you committed the offences for which I am sentencing you today, and by then you had not been in trouble for more than two years.

9You childhood was uneventful and you have a supportive family, with whom you still live.  Unfortunately, at the time when you became involved with an undesirable peer group you also began drinking alcohol excessively.  You also used cannabis at some stage and both those substances may have played a part in affecting your judgement.

10In 2014 you suffered a traumatic brain injury as a result of a car accident.  You spent a few days in hospital and then about two weeks in rehabilitation.  You were assessed by Dr Hoskin, who is a clinical neuropsychologist, in
November 2014 and she reported that your cognitive difficulties were consistent with mild traumatic brain injury.  She noted that your pre-injury abilities were probably in the average range, with some weakness in verbal abilities.

11Recently you were assessed by Dr Simon Kennedy, a clinical and forensic psychologist, who concluded that you are at low risk of sexual reoffending.  He said there is no evidence of focused offending against younger people or interest in prepubescent females.  Rather, Dr Kennedy concluded that you are relatively immature and you had perceived that you and the complainant, even though she was much younger than you, were of the same level of maturity; or for that matter, immaturity.

12The fact that you now have a partner who is only a couple of years younger than you and, of course, is therefore of an appropriate age is a further indication, according to Dr Kennedy, that your risk of reoffending is low.

13Whatever you may have thought at the time, the offending against the complainant is very serious because she was a child and the law exists to protect children from sexual activity for which they are not sufficiently mature.  The offence you committed is punishable by imprisonment for up to ten years and that is an indication of how seriously the offence is regarded.

14Other people who might offend in the same way need to be reminded that the crime can attract serious punishment so that they might be deterred.  In your case there are reasons why imprisonment is neither necessary, nor appropriate and why a Community Correction Order, with quite stringent conditions, will satisfy the sentencing factors I need to take into account.

15Because of your brain injury it seems that you probably had a distorted view of the relationship you had with the complainant and it follows that there was not the same power imbalance between you that often exists in cases similar to this, even though there was a considerable age gap.  It also means that you are not what is often called a good vehicle for general deterrence.  In other words, your brain injury sets you apart, to some extent, from others who have not been injured in that way.  It follows that the importance of general deterrence as a sentencing principle is somewhat reduced.

16At the time there were no aggravating features of your behaviour with the complainant, such as violence or threats.  But that does not mean that she did not suffer harm.  It is presumed in such cases as this that the child does indeed suffer harm from such a relationship and activity, for which they are not emotionally equipped.

17As to that, the complainant has provided a victim impact statement, in which she states that the offending has resulted in a very bad time for her and although she is feeling happier now, she still feels inclined to hide herself away rather than face life.  She noted appositely that you did those things to her and she ended up in Department of Human Services care.  She was the child, you were the adult and it should never have happened.

18Apart from your cognitive weaknesses there are several other mitigating factors which combine to reduce your criminality and to lead to a more lenient punishment than is otherwise called for.

19You pleaded guilty at any early stage, at the time of the second committal mention, after funding had been sorted out and some discussions about the charges had been held.  That is important because it avoided the need for a trial, with the expense and inconvenience involved.  But most importantly, it meant that the complainant did not have to wait for the trial to take place and has not had to be cross-examined in court.  Your plea has spared her that.

20Usually a plea of guilty is also accepted as an indication of remorse and regret.  During the record of interview you denied the sexual aspect of the relationship, which is consistent with what you told Dr Kennedy at paragraph 8 of his report.  When being assessed today you also told the assessing officer that you had not had sexual intercourse with the complainant, which of course is at odds with your plea.

21It is a concern on the face of it because it suggests that you have not understood the seriousness of your situation and have not fully taken responsibility for your actions.  But I take into account that you have instructed your counsel that you do understand the meaning of your plea and that you do not challenge any part of the facts.

22There was a considerable delay of over a year after you were interviewed, before you were charged, although, not an untoward delay in the circumstances.  Nonetheless, you are entitled to have  taken into account that you had to wait for that period of time before being charged, and the best part of another year before being sentenced, with none of that delay being due to your fault.

23You are a young man, for whom rehabilitation is a very important matter.  You have your life ahead of you and it is not only to your advantage but for the benefit of the community that your rehabilitation should be successful.

24The best chances of that occurring are for you to have treatment while in the community and that you learn better ways of living your life, including understanding the need to take responsibility for your actions.

25A short prison sentence, which might otherwise be appropriate in this case, carries the risk of exposing you to poor influences and of undermining your rehabilitation.  Although the 23 days you served for the breaches of the intervention order is quite a separate matter, I take into account in a general sense that it arose out of the relationship with the complainant and your offending against her.

26You have the support of your family and of your partner, who is in court today with your mother, and you are continuing to work with your father.  You have stopped using cannabis and reduced your use of alcohol.  They are all considerable strengths, which will help with your rehabilitation.

27Combined with the conditions I will impose as part of a Community Correction Order they mean that your prospects are good and that you are unlikely to offend again in this way.  Perhaps you have left behind the impulsivity of your teenage years as well.

28You have been assessed, as you know, as being suitable for a Community Correction Order and that is the sentence I now impose.  It begins today and will last for two years.  You will be under supervision and you must perform 80 hours of unpaid community work within six months.  You must be assessed and have any necessary treatment for alcohol and drug use, and you must take part in a sex offender treatment program.

29Under the Sex Offender Registration Act you must provide your details to the police every year for 15 years.  Shortly you will be given a form to sign in relation to that, together with the Community Correction Order itself.

30Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges I would have sentenced you to a three year Community Correction Order.

31The prosecution has asked for an order for a forensic sample of saliva to be obtained from you under s.464ZF of the Crimes Act.  Through your counsel you have consented to that and I make that order.  I have to advise you that the police are able to use reasonable force to obtain that sample of saliva, if necessary, But I trust that will not be the case.

32Now, Mr Menon, would you like to have a look at the Community Correction Order before your client signs it?

33MR MENON:  Yes please, Your Honour.

34HER HONOUR:  While that is being given to you, Mr Brumby, I need to tell you that you must go to the Bendigo Community Corrections Centre, which is at the Justice Centre at 3 William Vale Place, Bendigo.  And you must go there within two clear working days of this order.  So that gives you till 4 o'clock on Monday, no later than that.  Is there anything further from anyone at the Bar table? 

35MR MOORE:  No, Your Honour.

36HER HONOUR:  Thank you.

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