Director of Public Prosecutions v Primmer

[2021] VCC 2164

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00179

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT PRIMMER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Mildura trial – 22 February 2021. Plea – 22 November 2021
DATE OF SENTENCE:	17 December 2021
CASE MAY BE CITED AS:	DPP v Primmer
MEDIUM NEUTRAL CITATION:	[2021] VCC 2164

REASONS FOR SENTENCE

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Subject: sexual assault of a child under 16 years of age

Sentence: 3 years and 6 months with a non parole period of 2 years and 4 months.

SORA – 8 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Trial – Mr D. O’Doherty Plea - Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr H. Moodie

HIS HONOUR: 

1Brett Primmer, after a short trial, you have been convicted by a jury of one charge of sexual assault of a child under 16 years of age.  The maximum penalty for this offence is imprisonment for ten years.  The charge was a course of conduct charge. 

2The offence is a standard sentencing offence.  A standard sentence for this offence is imprisonment for four years.  The standard sentence is intended to represent the sentence for an offence in the middle of the range of seriousness, taking into account only the objective factors involved in the commission of the offence.  The standard sentence of four years imprisonment for this offence is not a starting point in determining an appropriate sentence.  It is only one of the many factors to be taken into account by me in arriving at an appropriate sentence. 

3The Court of Appeal has said the standard sentence acts only as a guide post to the sentencer who must apply instinctive synthesis to the sentencing process to arrive at an appropriate sentence. 

4In taking into account sentences applied in other cases, I must only have regard to sentencing practices in other similar cases where a sentence was passed as a standard sentence.  I must give reasons explaining any difference between the sentence I impose and the standard sentence.

5In this case, the charge that you were convicted of, was a course of conduct charge.  The prosecution case which must be taken to have been accepted by the jury was that between 1 March 2018 and 14 October 2018, you kissed the complainant on the lips and sexually touched the complainant's vagina under her clothing on a number of occasions, certainly more than once.

6All of the offending occurred when you and the complainant were in your bed whilst watching television or YouTube or playing with a PlayStation and you were both covered by blankets.

7The offending sometimes occurred whilst the complainant's mother was in the kitchen nearby cooking, whilst knowing that the complainant was with you in the bed.  The complainant's mother did not know and nor did she think that you were sexually assaulting her young daughter.  At times, the complainant's brother came into the bedroom when you had the complainant in your bed. 

8The complainant gave evidence which the jury must have accepted, that you began by kissing her on the lips and then you moved to touching her vagina on the skin, but whilst under the blankets.  The complainant gave evidence that at one point this was occurring every day for a period of two to three months.  She gave this evidence at Question 12 of her VARE:

Question: 'Are you going to tell me what really happened?'  Answer:  'Yes.'  Question: 'All right, so [redacted] tell me everything you can remember about what happened from – with Brett from the very start to the very end as best you remember it, and try not to leave anything out.'  Answer:  Okay, so when it first started, he started kissing me when no one was around and I was in mum's bed watching YouTube with him and then I just didn't like it and then he just kept kissing and then he went off to touching my vagina and I didn't like it, so I always said, "No stop" and I moved away from him and ignored him as best I could, and he always started to do it every day when I got back from school.  So he tried to do it for about, like, three months, two months, something like that, and for about a month.  I said, "Stop I don't like it" and I told him, "I'll tell mum if you keep doing it" so he could stop.  So he stopped and I always ignored him and moved away so he couldn't do it, and then he stopped doing it but I think after that he started doing it so I just said, "Stop" then I never went back to mum's room and I ignored him and didn't recognise him and didn't really talk to him much.'

9When asked how many times this had happened, the complainant gave this evidence at Questions 34 and 39:  Question:  'So how many times did that happen?'  Answer:  'After school mostly, every day Monday to Friday.'

10And at 39:  Question: 'Okay, that's all right, so let me just make sure I've got all this right.  For about, you said two to three months?'  Answer:  'Yeah.'  At Question 51 of the VARE the complainant gave evidence that you tried to make her lick your penis.  This evidence was introduced into the trial as context evidence.  It was evidence of an uncharged act which are not to be sentenced for and I do not take it into account as an aggravating factor in sentencing you. 

11You ceased offending when the complainant told you that she did not like what you were doing and she threatened to tell her mother.  That is to your credit in that you did stop what you were doing when asked by the complainant.  The complainant eventually told her mother what you had been doing to her after her mother had spoken to her in an unrelated conversation about being inappropriately touched sexually by men. 

12A complaint was then made to the police who investigated.  Your defence was a complete denial which you made when interviewed.  The record of interview was played to the jury. 

13The complainant, her brother and sister were each cross-examined.  It was asserted by your counsel that all were motivated to lie because you had formed a relationship with another woman in Robinvale while still in a relationship with the complainant's mother. 

14By its verdict, the jury clearly accepted and acted upon the evidence of the complainant.  You have not expressed any remorse for your offending and maintain your innocence. 

15At the time of offending, the complaint was aged between eight and nine years of age.  She was the youngest of three children to her mother, with whom you were living in a de facto relationship.  You were 38 at the time of offending and you are now aged 41. 

16This is clearly serious offending against a child, eight to nine years of age.  You had been accepted into the complainant's family as a de facto partner of her mother and you were trusted as a father-figure.  The complainant clearly liked you and you manipulated that relationship to your advantage and for your own sexual gratification.  

17Your offending was a gross breach of trust that had been placed in you.  In my opinion, your offending was below mid-range for this kind of offending.  Fortunately, for the complainant it did not reach a level where the touching proceeded to digital penetration. 

18Your counsel submitted that having regard to the evidence given by the complainant, I could not be satisfied beyond reasonable doubt that the offending extended over a period of more than one month.  I accept that submission.

19The complainant was clear that she did not like what you were doing and she told you.  Her evidence was not precise as to how long you offended for, and nor would one expect it to be from someone so young in her position.  I sentence you on the basis that over a period of about a month during the period charged, you repeatedly kissed the complainant on the lips and touched her vagina under her clothing.  At times during this period this was occurring on a daily basis.  I accept the complainant told you to stop and you did so. 

20Sexual offending against children of any kind if abhorrent.  Repeated offending even more so.  By the sentences imposed courts must reflect the need to protect children from those adults who would seek to exploit them for their own sexual gratification. 

21In sentencing you, I must have full regard for the need to apply the sentencing principles of general deterrence and denunciation. 

22Whilst you cannot be punished for having contested the charges, at the same time, you cannot expect a reduction in sentence that would normally apply had you pleaded guilty. 

23You have admitted some prior unrelated driving offences but you have no prior convictions for offending of this kind.  At the age of 41, this is the first time you have been imprisoned.  You were remanded in custody for plea and sentence on 18 August 2021.  You have served 120 days by way of pre-sentence detention. 

24Your counsel, Mr Moodie, filed a helpful written outline of his submissions with the court.  You rightly conceded that you offended against a young and vulnerable young girl and that your offending involved a gross breach of trust. 

25He conceded that your offending has had a substantial impact upon the victim and her family as shown by the victim impact statements that were read to the court, the contents of which I must take into account.  Mr Moodie submitted that your offending was not accompanied by threats of violence or any coercion.  I accept that submission.  Such features are often seen in this kind of offending, but were not a feature here. 

26Your counsel submitted your offending was opportunistic and not planned.  Your offending may have been opportunistic when it first commenced, but it continued for a month, sometimes on a daily basis.  Once you commenced offending you thereafter took full advantage of the arrangement that you created. 

27I received into evidence a psychological report from Mr Simon Candlish, Exhibit 6, who interviewed you on three occasions in October this year and carried out psychometric testing. 

28You denied the offending to Mr Candlish who concluded you have no insight into your offending.  You are of Aboriginal descent, a Wurundjeri man.  Your parents separated when you were very young.  You were mainly raised by your mother and her parents. 

29You told Mr Candlish of your memories of being flogged by your father.  Your father died a suicidal death when you were aged 14 and this had a severe impact on you.  You told Mr Candlish your father was a drug user.

30You have had a very limited education, having completed Year 8.  You told Mr Candlish you have been unemployed for most of your working life.  Most recently, in 2020 you worked in a bottle shop. 

31You told Mr Candlish that you struggled to maintain employment, due to the effects upon you of your father's death and alcohol abuse issues.  You described to Mr Candlish a history of heavy alcohol abuse but told him in recent years you have reduced your alcohol intake.

32I have concluded you have had a very difficult upbringing.  You told Mr Candlish of a long history of depression following the death of your father.  In 2021, you apparently tried to suicide by overdosing on medication.  You have had a number of intimate relationships. 

33Mr Candlish opined that you suffer from low depressive mood and alcohol abuse, both of which he thought to be present at the time of offending. 

34He thought your persistent depressive disorder, moderate severity, contributed to your alcohol abuse, moderate severity. 

35Whilst in custody, you have received supportive counselling from Forensicare, Exhibit 2.  Mr Candlish administered the Static 99 risk assessment which placed you in average risk of reoffending in this way.  Mr Candlish thought you have good prospects for rehabilitation. 

36In passing sentence, I have taken all of these matters into account, especially your long history of depression for which you appear to be adequately treated in a prison setting. 

37Mr Moodie referred me to a number of decision in other cases and the sentences imposed in them, which I have taken into account.

38I received into evidence a character reference from Tanya Williams, Exhibit 3, and from Colin Williams, Exhibit 4, and from your mother, Elona Barlow, Exhibit 5.  What comes through is that you continue to have good family support and the support of others who have found this offending to be out of character.  You will have that support when released from custody. 

39I have concluded your prospects for rehabilitation are reasonably good, provided you can be properly treated for your alcohol abuse. 

40Your counsel conceded that I must impose a custodial sentence upon you, but he asked me to moderate any sentence especially having regard to your lack of relevant prior convictions, your prospects for rehabilitation, the fact that at the time of offending, you likely suffered from depression and alcohol abuse disorder, both of moderate severity. 

41He also relied upon the lack of aggravating features of the offending, such as persistence in the face of resistance, or threatening or coercive behaviour and the fact you will find prison difficult because of your ongoing depression.  In passing sentence, I have taken all of this into account. 

42In passing sentence, I will impose a sentence of imprisonment below the standard sentence for this offence of four years.  I have done this, because in my opinion, having regard to all of the circumstances here, your offending falls below mid-range for this offence. 

43On the charge of sexual assault as a course of conduct charge, you are convicted and sentenced to a term of imprisonment of three and a half years. 

44I direct you serve a minimum term of two years and four months imprisonment before being eligible for release on parole. 

45I declare there has been 120 days pre-sentence detention relating to the sentence passed this day.  I direct that 120 days be reckoned as having been already served and be entered into the records of the court and be deducted administratively. 

46Sexual assault is a Class 2 offence under the provisions of the Sex Offenders Registration Act 2004. You are a registerable offender under that Act with reporting obligations for eight years. 

47Are there any questions arising out of that, Ms Duckett or Mr Moodie? 

48MS DUCKETT:  No questions, Your Honour, simply that my calculations are that it is 121 days, exclusive of today if the jury's verdict that was delivered on 18 August, if that date is taken into account. 

49HIS HONOUR:  What do you say Mr Moodie? 

50MR MOODIE:  My calculation was also 121 days not including today, Your Honour. 

51HIS HONOUR:  Very well, well I'll make it 121 days pre-sentence detention.  Thank you.

52MS DUCKETT:  Other than that, Your Honour, no matters.  Thank you. 

53HIS HONOUR:  Thank you. 

54MR MOODIE:  Nothing further, Your Honour. 

55HIS HONOUR:  Thank you Mr Moodie.  Adjourn the court until 10.30. 

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