Director of Public Prosecutions v Reed

[2016] VCC 1461

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02086

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYAN REED

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JUDGE:	HER HONOUR JUDGE QUINN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 October 2016
CASE MAY BE CITED AS:	DPP v Reed
MEDIUM NEUTRAL CITATION:	[2016] VCC 1461

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Ms M. Mykytowycz

HER HONOUR: 

1Brian Reed, you have pleaded guilty one charge of indecent assault with a male under 16 years and two charges of buggery with a person under 14 years.  The maximum penalty for these offences at the time of the commission of these offences was 10 years and 20 years respectively.

2The circumstances of your offending are set out in the summary of prosecution opening dated 29 September 2016, Exhibit A and can be summarised as follows:  You had befriended the Jones family when the children were very young.  As the children grew up, they would refer to you as Brian or Uncle Brian.  There were four boys in the family, Shane[1], Robert[2], Victor[3] and Alex[4].  You told the parents that you were a swimming coach and offered to teach their children how to swim.  During 1977 the Jones family moved to Braybrook.  You continued to teach the children swimming at either the City Baths or Harold Holt Pool. 

[1] Shane Jones is a pseudonym.

[2] Robert Jones is a pseudonym,

[3] Victor Jones is a pseudonym.

[4] Alex Jones is a pseudonym.

3In late 1977 Victor was at the City Baths with you teaching him swimming in the shallow end of the main pool.  At this time he was aged about 11 or 12.  You placed your hands underneath Victor to support him; you had one hand under his chest but the other was on his penis.  You started to play with and feel his penis with your hand before moving your hand inside his bathers and squeezing his testicles.  Victor tried to move away but he was unable to do so.  This is a representative charge.  You used the same method to do the same thing again on five subsequent occasions.  The above is the factual basis for each of the occasions that the charge represents or the sample occasion.  That is Charge 2, indecent assault upon a male between 1 July 1977 and 1 May 1978.

4The significance of the charge being representative is two-fold.  First, it should be understood the occasion referred to is not an isolated event and secondly, it provides a wider context for the extent of your offending. 

5One weekend during the charged period Victor went to your flat in Elwood to stay.  In the evening you were naked and got into bed with him.  You put your penis in his anus and had sex with him.  It was really hurting, and he was so scared that he wet the bed.  That is the circumstances in respect of Charge 3, buggery between 1 May 1977 and 31 August 1977.

6Afterwards, when he went to the toilet he noticed blood on the toilet paper.  The next day you again got into bed with him and he started to cry and told you he was hurting and wanted to go home.  You told him it would be all right.

7In 1991 or 1992 Victor told his then girlfriend what you had done to him.  He told his mother what had happened in July 1996. 

8In respect of Charge 1, Alex Jones would stay at your home with his brother Robert on weekends both before and after their parents separated.  At a later time the brothers would alternate staying a week each with you.
           In 1980 when Alex was about nine he rode to the beach from your house on a new BMX. When he returned to your house he went and had a shower and lay down on the lounge room floor mattress.  You came in with a bowl of water, a soap and rag.  You got Alex up on all fours in the nude and started to rub something around his anal area, then you put your penis into his anus.  You told him not to move and said it would not hurt after a while.  That is the circumstances in respect of Charge 1, buggery, between 6 November 1980 and 31 December 1980.

9You also used to take Alex to St Mauritz Ice Skating Rink in the Olympic ice skating rink in Oakleigh or the Harold Holt Swimming Pool.  You would get him to talk to other children and then approach their parents offering to teach these other children swimming or skating.

10Alex stopped going to your home when he was about 13 years of age and the first person he told about your abuse was his de facto wife in about 1995.

11I was provided with victim impact statements from Victor Jones and his current partner Bronwyn Osborn[5].  Alex Jones declined the offer to make such a statement. 

[5] Bronwyn Osborn is a pseudonym.

12Victor Jones sets out the process in which you engaged grooming him and ingratiating yourself with the family in order to build up trust.  He says, "One day when I did tell my dad, that is what had happened, I was beaten to nearly an inch of my life for it.  I had nowhere to go, no-one to tell.  I was so ashamed, humiliated, couldn't trust no-one.  All the silent crying for what you had done to me over the years.  You took my childhood memories away and you stole my trust within people.  All the years not feeling worth it as a kid, through relationships, jobs, et cetera, to this date, I wish I'd been dead.  Not only that it could have been different within our family, the trust, the guilt that still carries through to this day.  I sit here at times wondering if I had been noticed earlier in life, could it have been better for me?  I felt guilt for others that had been befriended by you.  If I could have changed it, or prevented it."

13His partner sets out the significant difficulties that he has experienced with depression, familial and social relationships and with issues of trust.  Her statement ends on a more optimistic note with the positive impact of you pleading guilty.  She remarks that he, that is Victor, is going step by step to live life and learning to see the love, brightness in his future. 

14I was provided with reports from Dr Lester Walton  consultant psychiatrist dated 20 May 2015 and 20 November 2015.  I was also provided with medical reports regarding your various health issues and current medication prepared for the purposes of your permanent placement with Samarinda Aged care Services. I take all that material into account.

15You are currently aged 86 years.  You had a troubled childhood being subjected to both physical and sexual abuse when you lived at a children's home in your young years.  Your parents had separated and you lived in St John's Home for Boys in Canterbury between the ages of 6 to 11. 

16You were subjected to physical and sexual violence for discipline and also from other residents.  You had limited contact with your father and his new partner during this time and virtually no contact with your mother.  You were lonely, abused, afraid and unhappy as a little boy.  You went and lived with your father and his partner when you left the boy's home. 

17You left school at the age of 13 and then commenced work.  For the majority of your life you worked as an upholsterer until arthritis and repetitive strain injuries prevented you from continuing in that trade.  You also worked as a taxi truck courier.  You ceased work before your retirement age and received the disability pension.  You lived alone in Ministry accommodation in Ashburton though in December 2015 you moved into a nursing home, Samarinda Lodge.

18You have two adopted sons.  I understand you shared the care of these boys with your father's partner, Ms Lees.  One of them, Don, died 25 years ago and the other Alex is now 39, though you have limited contact with him. 

19As to your health, you suffered a stroke when you were incarcerated during 1998.  I will refer to the circumstances leading to that incarceration later in these reasons. 

20Since the stroke you have been wheelchair bound and have weakness down the right side.  Your condition or recovery was complicated by deep vein thrombosis and a pulmonary emboli.  Since the stroke you have suffered cognitive deficits with ongoing problems of concentration and memory that have worsened as you have aged.  You have had both knee and hip - sorry, knee and hip replacement surgery. 

21In 2000 you had prostate surgery which you instructed extinguished any paedophilic urges that you had.  You are currently on a range of medications as listed on the material provided to me.  You have very limited mobility and currently require assistance to ensure regular movement of your legs.  You require regular physiotherapy and other assistance. 

22This offending took place between 1977 to 1980.  You have been before the courts on other occasions with similar offending both before the commission of these offences and after.  Most significantly you were before this court on 31 July 1996 after pleading guilty to 31 acts of indecent assault relating to seven different boys.  I note that at the time of that sentence, you had previously been convicted on four other occasions of indecent assault in 1948, 1969 and 1978.  You served a period of imprisonment in respect of the 1978 matter.

23The 1996 matters related to acts committed by you between 1960 and 1976 on boys aged between 8 and 12 years.  In sentencing remarks His Honour Judge Kelly said,

"It is plain from the depositions that it was a very vigorous libido which you sought to satisfy by engaging in carefully planned and persistent conduct designed to enable you to prey upon a succession of young boys under the guise of teaching them to swim and taking them on outings and camping holidays.  There is no doubt that you were well aware that your behaviour was both criminal and morally reprehensible.  The effect upon those whom you preyed was to be expected.  Interference with their sexual maturation and capacity to trust others is and was a natural effect of abuse of this kind.  No civilised community has condoned sexual conduct between adults and children as young as these and it is necessary to proclaim the standards of this society by denouncing such conduct.”

24You were sentenced for those matters to a period of three and-a-half years imprisonment with a non-parole period of two years.

25That offending was very similar to your offending before me, both on this and on a previous occasion and the remarks remain applicable to the sentencing tasks that I currently have.

26You appeared before me in this court and were sentenced on 10 December last year for one count of buggery and one count of indecent assault with a male under 16 years.  These related to a boy aged 10, the offence occurring between 1966 and 67.  Each of those charges was representative and you received a sentence of three years wholly suspended for a period of two years. 

27I understand that since your release from custody for the matters before the court in 1996 that there have been no further matters.

28These offences are historical having occurred approximately 40 years ago.  It is not unusual however in respect of this kind of offending against children that people don't come forward and complain at the time of the offending.  Delay in complaint is a common consequence of the general nature of this kind of offending and there is generally little mitigation just by virtue of the passage of time in sentencing for historical sex offences of this kind. 

29However, some of the delay amounting to approximately 20 years was due to the police conduct in dealing or failing to deal with the complaint.  Victor Jones reported this matter to Police as a consequence of publicity relating to the court case in 1996.  For reasons that remain unknown, no further action was taken by police until another victim, Julian Wallace[6] went to police to follow up on his original complaint also made in 1996 in 2012.

[6] Julian Wallace is a pseudonym.

30This delay between 1996 and now, 20 years, is most unsatisfactory and no legitimate reason for it has been proffered by the prosecution.  It is in the interests of both you, Victor and Alex Jones and the community that justice is administered efficiently and as expeditiously as possible.  This did not occur in your case. 

31This delay is significant for a number of reasons in the sentencing exercise:

(1), your health and personal situation has deteriorated over the past 20 years; 

(2) your life expectancy given your age and health is such that any period of imprisonment imposed would be served during the final years of your life.  It is important to avoid a crushing sentence which would connote the destruction of any reasonable expectation of a useful life after release;

(3) You no longer are a risk of offending.  Doctor Walton is of this opinion, if only because of your frailty and you are no longer a threat to children.  I accept the principles of specific deterrence have no application to your current circumstances; and finally,

(4) Any punishment imposed for this offending would have more likely than not been served at the same time or in addition to the time that you served in custody as a consequence of the 1996 sentence. 

32As to aggravating features, your offending has had a significant impact on your victims.  You groomed the young boys and took full advantage of the trust that their parents placed in you and of the turmoil connected with their separation.  The boys were aged 9 and 11 or 12.  Your offending involved a degree of planning. 

33I take into account your plea of guilty.  The utilitarian value of the plea is significant as historical sex matters are very difficult to prove.  You have saved the community the cost of a trial and avoided the need for witnesses, particularly neither of the complainants have not been required to give evidence at trial.  Your counsel tendered a letter of apology to your victims.  Your plea is indicative of remorse.  I accept the opinion of Walton that your recollection of these events is somewhat limited.

34The prosecution submitted given the relevant sentencing considerations personal to you but despite the very serious nature of this offending that a sentence that did not involve an immediate term of imprisonment was within range.  Your counsel urged me to adopt that course.

35On all the charges you are to be sentenced as a serious sexual offender.  The protection of the community is the paramount sentencing consideration although I am empowered to impose a disproportionate sentence the Crown didn't suggest that I do so. 

36Your offending was a grave example of this kind of sexual abuse.  I must take that into account along with sentencing principles of just punishment general deterrence and denunciation.  I am mindful that these must be balanced in your case with your plea, personal circumstances and most importantly in your case, the delay once the complaint was made and principals of totality given your previous term of imprisonment.

37In all the circumstances I am prepared to impose a sentence of imprisonment wholly suspended. 

38In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of two years. 

39In respect of Charge 2 you are convicted and sentenced to a period of imprisonment of two years and, in respect of Charge 3 you are convicted and sentenced to a period of imprisonment of two years.

40One year of the sentence imposed on Charge 1 will be cumulative on the sentence imposed on Charge 3 which makes a total effective sentence of three years.  That three year period will be wholly suspended for an operational period of three years. 

41As I indicated, under the serious sexual offender provisions on the Sentencing Act, the court must cause to be entered in the records of the court the fact that you are to be sentenced as a serious sex offender pursuant to s.6F1 of the Sentencing Act.

42I will not order a forensic sample as one has already been obtained. Additionally, there is no need for an application for you to be put on the Sex Offender's Register given your prior matter that I dealt with last year and you are already on the register with requirements of a reporting period for the remainder of your life. Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed an actual term of imprisonment of two years.

43Are there any other matters?

44MS MYKYTOWYCZ:  No, Your Honour.

45MR HUTTON:  Can I just ask, Your Honour?  I understood the import of Your Honour's sentence is three years wholly suspended for two years.

46HER HONOUR:  Yes.

47MR HUTTON:  I think Your Honour ordered cumulation of one year on one of the charges and ‑ ‑ ‑

48HER HONOUR:  Yes.

49MR HUTTON:  I missed Your Honour's enunciation on the other one. 

50HER HONOUR:  No, no.  It's just concurrent.

51MR HUTTON:  I understand under the serious offender provision it's cumulative unless you otherwise order so I understand Your Honour has to otherwise order. 

52HER HONOUR:  All right, well I otherwise order.  Thank you.

53MR HUTTON:  Thank you, Your Honour.

54HER HONOUR:  Thank you, but just to be clear the effect is that there should be a total effective sentence of three years with a three year operational period.

55MR HUTTON:  Thank you.

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