Director of Public Prosecutions v Simpson

[2011] VCC 228

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDEN SIMPSON (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 March 2011
CASE MAY BE CITED AS:	DPP v Simpson
MEDIUM NEUTRAL CITATION:	[2011] VCC 228

REASONS FOR SENTENCE

---

Catchwords: Procure minor for child pornography-Production of child pornography (representative counts)- sexual penetration of child under 16- Incest- offender aware the victims cognitively impaired children- abuse of trust- offender employed in prisons and Juvenile Justice- Aboriginal man with disadvantaged background- high moral culpability.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N. Elovaris
For the Accused	Ms T. Hartnett

HIS HONOUR:

1       Brayden Simpson,[1] you have pleaded guilty to one charge of procurement of a minor for child pornography, one charge of production of child pornography, three charges of sexual penetration of a child under 16, four charges of incest and  one charge of possessing child pornography.

[1] A pseudonym.

2       The production and procurement offences took place between October 2004 and October 2007.  The sexual penetration charges all took place between January 2003 and January 2005.  Two of the incest charges took place between September 2008 and February 2009, and two of them between December 2008 and January 2009.  The possession of child pornography charge took place on 3 April 2009.  The procurement charges are representative charges, as is the production charge. 

3       At the time of these offences, between January 2003 and April 2009, you were between 33 and 39 years old and  you were employed as  youth worker at a Juvenile Justice Centre.  You were a family friend of a couple, Maci[2] and Wiktor[3], and regularly visited their family home.  At one stage, you lived with the family.  Maci has two daughters, I will call them M and H.  You appeared friendly and close to the children.  The offences against them were committed at their family home. 

[2] A pseudonym.

[3] A pseudonym.

4       H was aged between 15 and 17 at the time of the offences of procurement and production of child pornography (Charges 1 and 2).  She suffers from a cognitive impairment with learning disabilities and functions at the level of a 12-13 year old child.  You were aware of her disability, you knew she attended a disability job network  and required an integration aide at school.  You had discussed this with Maci.

5       M was 11-13 years of age at the time of the Charges 3, 4 and 5, of sexual penetration.  She too suffers from a cognitive impairment as well as bipolar disease and post traumatic stress disorder, diagnosed in 2004-2005.  In 2007, Maci had a formal psychiatric assessment of her, when M  was 15.

6       On ten occasions, between 5 October 2004 and 4 October 2007, you video recorded yourself engaging in sexual activity and acting in an indecent manner with H.  These recordings were found on your computer in 2009.  They depict you penetrating H by your penis in her vagina, and in one recording  her anus or  another  bodily orifice, in any event relevant to the definition of sexual penetration.  You penetrated her by finger in her vagina and rubbed her nipples, and those actions are also depicted in the video recordings.

7       H could not particularise these occasions but she recalled the abuse being frequent and thought she recalled it being videoed.  She said she was afraid of you and afraid to tell anyone.  She, understandably, did not know what to do and she protested at times, but you would continue.  She said, in her videotaped evidence that she felt disgusted, hurt and violated.  The offences came to light only once your computer was searched in 2009.

8       M  was able to recall the details of the three charges as having occurred on the couch in the lounge room of her home when she was 11 or 12.  You penetrated her sexually by inserting your fingers into her vagina.  At this time, you either resided with the family or was a regular visitor, where you were free to come and go to the home as you pleased. 

9       Some months after the first event, M described a sexual penetration occurring again, with the insertion of your fingers into her vagina whilst sitting with
 H on the couch.  M then identified a third occasion when you again sexually penetrated her by inserting you finger into her vagina, also on the couch, while M's stepdad was on the computer nearby.  This brazen and abhorrent conduct led M to leave home in July 2005, when she was just 13. 

10      When Maci, her mother, went to report her missing, she found her at the police station, reporting her sexual abuse by you, and asking for emergency housing because she could not go home.  She disclosed the nature of the abuse to her mother but found it difficult, at the time, to formalise her complaint to the police.  Unfortunately, nothing further happened at that time.  The family continued to associate with you as a friend.  This must have caused M and H, in particular, a deal of distress and anguish. 

11      It was around late 2005 that you began a relationship with Nina.[4]

[4] A pseudonym.

12       In early 2007, Wiktor, Maci's husband, left the family home and you would visit Maci in the home in her absence, once or twice a month, during 2007.  M became more and more agitated each time you visited and she began to self harm.  She started to receive regular psychiatric treatment from this time. 

13      It was only in 2009 that Detective Scherini recontacted Maci, seemingly to follow up M and her complaint against you of 2005, because of fresh allegations being made by Z, who was Nina’s daughter.  By 2007, Nina had been in a de facto relationship with you for almost two years.  Z lived with you and would often be in your care overnight, because Nina was a personal care attendant and was required, from time to time, at night. 

14      

Your offending against Z occurred in the family home when Z was between

13 and 14 years old.  Between 1 September 2008 and 27 February 2009, you sexually penetrated Z by inserting your penis into her vagina, knowing she was your stepdaughter.  The offending started not long after her 13th birthday, just before Christmas 2008, in your bed.  Z was too scared to do anything.  You did not wear a condom, and that was Charge 6. 

15      

Between 1 September 2008 and 27 February 2009, you again committed the same act.  This time, you had a condom on (Charge 7.)  In the same period, you again committed the same act whilst on the couch, watching TV

(Charge 8).  You again committed the offence whilst in the pool.  She was saying "No" and eventually walked out after penetration (Charge 9).  Her mother was home at the time.

16      As a result of an incident whereby you had taken photos or videos by phone while Z was in the shower, she reported the sexual offending to her natural father, and the matter was reported to police.  Z saw you as her stepdad and this behaviour was an extremely serious breach of her trust, apart from the physically and morally reprehensible nature of it.

17      In March 2009, Nina confronted you about the shower allegations.  Some days later, police seized your computer as they searched your home.  They located 120 pornographic movies involving children, and 4169 pornographic images involving children.  The summary  showing the relative classification of this material was tendered. 

18      

In terms of non-penetrative activity depicted in the photos as acts of masturbation or sex acts between children, there was 1370 images and

12 movies.  As to non-penetrative mutual masturbation between adults and children, there were 761 photos and five movies.  In terms of adult/child penetrative activity, there were 1087 photos and 50 movies, and child abuse depicting sadism or bestiality was involved in 31 photos and two movies.  You had downloaded these and saved them, but there was no evidence you had transmitted them to others.  The material was placed by you in a file and viewed.

19      You were arrested on 3 April 2009.  During the suspension of the interview, you harmed yourself.  Later in the day, you were transferred to a psychiatric unit but you were released from that unit on 6 April, three days later, and you were again interviewed.

20      Further interview was conducted after the computer analysis and another was conducted in relation to the allegations made by H.  In relation to Z, you said you knew her age at the time of your relationship with Nina, with whom you were in a de facto relationship.  You denied sexually penetrating her and described the allegations as "typical teenage behaviour."  You denied photographing Z in the shower. 

21      In the interview of 3 August 2009, another video showing Z in the shower was located on your computer and shown to you.  You accepted that you had tried to video her and lied about it to protect yourself. 

22      In relation to M, you knew her age.  You said that you had limited contact with M and H because you did not want allegations being made against you, and you told police you were wary of your actions, though without real concern.  This was disingenuous self-rationalisation on your part.  You said a friend of M had put her up to the allegations and you denied them.

23       In relation to H, you stated you were ‘seeing her’, as she was 18, and you had sex with her and filmed it.  You said, "I was living with her for a while and after a while, after she turned 18, I had sex with her."  You denied that H was in fact much younger.

24      In the January 2010 interview, you stated you controlled what happened in the videos.  You knew H had an intellectual disability.  You stated you really did not pay much attention to her age or the age difference between you, as you probably just wanted sex.  You agreed she was vulnerable but did not give that fact much attention.  You accepted in April 2009, that you used the computer to access pornography but you asserted that you were not interested in images of young people under 18.

25      In August 2009, you admitted accessing websites of child pornography every couple of weeks for five to six years.  You said that child porn was something you knew with which you had a bit of a problem. 

26      In September 2010, you entered pleas of guilty.  You have spent no days in custody.

27      Procurement of a minor for child pornography carries a maximum of ten years, as does production of child pornography.  Sexual penetration of a child under 16 also carries ten years, while incest has a 25 year maximum of imprisonment.  Possession of child pornography has a five year imprisonment maximum.

28      Victim impact statements were tendered of H and M, Nina and Maci.  Maci writes that H is now 21 and M is 19.  Their lives are in a limbo.  The family tends to be socially isolated, with few friends.  H rarely leaves her room and her house, and has difficulties with her daily needs.  She is often in hospital receiving treatment.  Her behaviour is impulsive and challenging.  She has had numerous suicide attempts and other attempts at self harm.  Often Maci has to attend to the girls at the drop of a hat, leaving her work.  Her sleep is disturbed and M will often wake her because of psychotic episodes, nightmares and insomnia.  Safety is a paramount concern.  She has developed continued reflux disease and stomach surgery has been performed.  Her health has been fragile.  She is concerned for the girls' future and says their outlook and lives have been substantially impacted by your behaviour.

29      M says she can only sleep with medication, including Valium.  Medication is managed and measured under the control of her mother and sister, because of her previous suicide attempts.  She has fear of being alone and of intruders.  She suffers a generalised anxiety disorder and has developed post traumatic stress disorder.  The abuse, she said, has set off a bipolar disorder.  Socialising, as a result of these conditions, is very difficult.  She was diagnosed as bipolar at 16.  She had previously joined the army cadets but had to drop out because of her mental health situation and though she attended junior officer training, she had to give it up and she misses the friends that she made.  The hospitalisations have meant she dropped out of school at the start of Year 12 and she relates a current eating disorder to the abuse. 

30      

After the abuse, she began dabbling in drugs, alcohol and reckless sexual encounters.  At 13 and 14, she fell pregnant and had two abortions.  She suffers flashbacks and has difficulties trusting others.  She has had

two suicide attempts and suffers panic attacks.  She sees a psychiatrist regularly.  She and H rarely leave the house and endeavour to stay in contact with family to avoid hyper vigilance, fear and lack of safety at home.

31      Nina stated she became depressed and takes antidepressant medication.  She has relinquished her job as a carer.  She and Z moved house twice in seven months, causing emotional and financial distress.  Z does not wish to be left alone and sleeps with the light on at night, because of fear.  Nina too still experiences sleepless nights.

32      H also submitted a victim impact statement.  She states she is unable to have a relationship and her sense of trust has been profoundly undermined.  She experiences anxiety, agoraphobia, compounding of feelings of distrust in others and even her family, she feels, cannot adequately protect her.  She finds loss of control of her life damaging and she has panic attacks which are characterised by anxiety, which impacts on her working ability.  She experiences various ailments relating to her anxiety, including headaches, back pain, muscular distortion, exhaustion and lowered immune system.

33      Although Z did not a submit a victim impact statement, she was the victim of your incestuous offending.  Your depraved criminality has probably affected her in all aspects of her life and, as a reasonable inference from her statement, I draw the conclusion that you undermined her deserved sense of safety and trust as a child.  Your abuses, as can be read in her statement, deprived her of her innocence and joys of childhood.  I consider your moral culpability in the incest offences of a high order.

34      You counsel, at plea, acknowledged that this offending was very serious.  The extensive harm and breach of trust were acknowledged.  It was said you understand the emotional hurt you caused and are very sorry. 

35      You are now 41 years old and you were between 33 and 39 years of age.  You are an Aboriginal man from New South Wales while your mother's people are from Gippsland.  Yours was a childhood of deprivation and disadvantage.  Both parents were alcoholics, and when you were five, your father left the home and you have had infrequent contact with him.  He died when you were 25.  When your father left, you were left in the care of your mother, who had difficulties caring for her children.  By the time you were ten years old, you were a ward of the State and you were placed with a paternal grandmother in Deniliquin.  You were there with three kids of hers and your older brother.

36      When you were 15, your grandmother who was effectively your parent, passed away.  An aunt's care was arranged for you at 15, but she died and another aunt came from Sydney to look after you, taking over that care.  Despite these difficulties and dislocation, you finished Year 12, then you came to Melbourne and at the age of 20, apart from days you spent with the family, you were living independently.

37      

You have been a truck jockey for the Salvation Army and did some other labouring jobs.  Aged 20, you were in a de facto relationship and had

two children, now 18 and 20.  They were both in your care till recently.  The relationship, however, was short.

38      At the time of the offences, you were employed as a youth worker at the Juvenile Justice Centre.  You have been a prison officer at Pentridge and dealt with high security prisoners with drug and alcohol problems, and you administered programs for them.  You then moved to the MAP as the Aboriginal liaison officer.  You left Port Phillip Prison in 1998, and over the next three years, you worked as a security guard/ store man, then returning in 2001 to the Melbourne Juvenile Justice Centre as a youth officer, working with young, male Aboriginal offenders.  This was at the time of the offences against M and H.

39      I did not receive any other material about your background, and no other suggestion was made at your plea of any psychological or psychiatric condition which I should take into account. 

40      It was said on your behalf that the sexual relationship in relation to H can be used in only a limited way, and that within this broad context the sentence should confine itself with acts charged.  I agree that the sentence will only reflect the particular charges and their criminality. Being representative in nature, I can consider the relationship in the context of the occasions described, where there was procurement and production, that is  I can use the context of the sexual relationship with H as relevant background material, although there are no specific counts that go to it.

41      As to her cognitive impairment, it was submitted that though I could find some degree of it and that you were aware of it, the extent of such impairment was not defined adequately, though it was conceded that the VATE made such disability clear.  In my view, such intellectual disability is clear and makes for an aggravating feature of your offending, despite being unable to find, with any particularity, what specific type of impairment it was.  It is true that I cannot sentence you for behaviour not charged as criminal.  Nonetheless, it was conceded that such a sexual relation was morally wrong and emotionally harmful, and can assist to evaluate the extent of the impact of the offending.

42      It was submitted there was no evidence that M was cognitively impaired, apart from the evidence of the mother and some diagnosis in 2007.  It was said that the description of post traumatic stress disorder and bipolar symptoms may be related  to the offending only in a tenuous way.  What is clear is that H, on all the material, was affected by a mental  disorder or  illness and the sexual abuse would have made her outlook in life sad indeed.

43      

It was further said that the sentence as to Z, should be confined to

four occasions - that is, Charges 6-9.  I agree with that proposition, however these acts cannot be seen in an artificial vacuum of offending. There is here no violence or force, strictly speaking, but it is clear that coercion and compliance went hand in hand in the sexual contact and significant psychological manipulation accompanied the offences. 

44      It was submitted that  Z was having regular contact with her natural father, and therefore this was not a serious example of incest, because she had a significant relationship which had not been supplanted or lost as a consequence of  the offending, but still had a functional paternal relationship which persisted.  I do not accept this as capable of an amelioration, in the context.  In effect it was said that the offending caused less damage because  the victim had been able to maintain a fatherly figure in her life.  I do not accept this argument primarily because Z treated you as a stepdad and you stood in the place of a parent, for all intents and purposes, and you knew it. The fact that she has a natural father with whom she has a viable relationship  neither diminishes  you moral culpability nor the impact of your criminality.

45      The early plea of guilty  by you will attract a discount.  The value of such a plea is the saving of the cost of a trial to the community and the avoidance of further potential harm for the victims , and may be evidence of some remorse.  Such an inference as to remorse is different to a fully expressed and apparent remorse which goes well  beyond the mere fact of the plea. Though I do accept that you are sorry for your behaviour, I am not  in a position to make any findings as to true remorse. 

46      You have no prior or subsequent convictions.  In these kind of cases, this does not of itself necessarily call for leniency, but I accept that I should consider your good character and 34 years without blemish.  I do take this factor into account.

47      In my view, your involvement with  Juvenile Justice and Prison systems is a factor I should consider when weighing your culpability.  Apart from supposedly assisting young offenders, you worked at the coal face of the criminal justice system and could have better evaluated your conduct in view of the consequences known to you. This is therefore a matter of some weight in evaluating moral culpability.

48      Your paternal uncle was called to give evidence.  He gave evidence that you recently returned to Melbourne and he has met you in the city a few times.  He was shocked by the details which you revealed, and said you had expressed regret for the things you have done to the children and the families.

49      Another uncle, Glen Simpson,[5] gave evidence that he has a strong relationship with you and your family.  He has visited you most frequently, and spoke of your good character.

[5] A pseudonym.

50      In my view, the fact that you continued to abuse Z and H, even after you knew of the 2005 disclosure to police, shows the depth of your moral turpitude and  culpability.  It seems little was going to deter you from perpetrating this abuse.  Though it is true that the offences have an opportunistic flavour, it seems that, given the age difference and the frequency of the offending, this behaviour is properly characterised as seeking personal sexual gratification from the most vulnerable in our society. These children were known to you and showed you natural and innocent affection . Your violation of them was reprehensible.

51      The significant percentage of high categories in the classification of images and movies was said to be an aggravation.  I agree.  Also, your production of such material renders your  access to pornography more culpable. 

52      

I have taken into account the sentencing snapshots on incest, sexual penetration of a child under 16 and indecent act with a child under 16, and considered their contents.  I have also been directed to a number of authorities, which I have considered, such as Richards, a decision of mine in November 2008 concerning incest and moral culpability of the highest order. 

I was also referred and read Gent, CPD, SLJ, Groob, CF v R, GJW v R, Wells - a sentence of His Honour Judge Tinney in this court of 19 November 2010 - and DPP v TDJ.

53      The principles which govern sentencing for crimes of this nature are clear.  The court must protect children from sexual abuse, particularly in contexts where the perpetrators are those who, by their position and relationship to them, are entrusted with their care.  It would be a degenerate failure if the court did not do so.  Incest is particularly erosive of human relations, as was noted by Acting Justice of Appeal Heddigan in Were [1997] 1 VR 647. Incest is an abhorrent exploitation for sexual gratification of the weakened will of a child by an adult, and this physical and psychological subordination of the child to the perversion of the adult is made worse when the child is cognitively impaired or disabled. This is a gross breach of trust and does fundamental damage to the victim, often beyond repair. It must be met with stern punishment to deter the offender and deter others, and denounce, in the strongest terms, the utter rejection of this behaviour by the community and the law.

54      

I have taken into account your plea.  It will, as I have said, attract a discount. 

I have taken into account the victim impact statements and the effect of your offending.  The age of your victims and the period involved means this is very serious offending.  I have taken into account the principles of totality, to ensure an appropriate disposition, and the principle of parsimony, to pass a sentence that is proportionate to your offending.

55      Given my disposition and the terms of imprisonment on Count 1 and 2 on the presentment, it follows that by Charge 3, you will be stand to be sentenced as a serious sexual offender for each offence thereafter.  I must regard, from that point, the protection of the community from you as a principal purpose of the sentence. 

56      I have the power to impose a disproportionate sentence.  It was not submitted by the prosecution that that should take place, and I make clear that I will not impose disproportionate sentences or in any way sentence pursuant to s.6D(b). 

57      The presumption as to concurrency in the Sentencing Act is put aside for serious sexual offenders, but I must impose  just and adequate punishment, and my order for concurrency and cumulation are designed for this purpose.

58      

I am unable to evaluate adequately your prospects for rehabilitation. 

I consider that your period of reclusion will serve to ensure your prospects will be reasonable upon your release.

59      On the procurement of a minor for child pornography, you are convicted and sentenced to three years' imprisonment.

60      On the production of child pornography, you are convicted and sentenced to three years' imprisonment.

61      On sexual penetration of a child under 16 (Charge 3), you are convicted and sentenced to two years; on Count 4, to two years; Count 5, to two years.

62      On incest (Counts 6, 7, 8 and 9), on each you are convicted and sentenced to four years' imprisonment.

63      

On the possess child pornography, you are convicted and sentenced to

one year's imprisonment.

64      

I will use Count 6 as the base sentence of four years, and I order that

three months of the sentence for ‘procurement’ and three months of the sentence for the  ‘production’ count be cumulative.  I will order that six months on each of the sexual penetration counts - Counts 3, 4 and 5 - be cumulative upon the base sentence.  I order that 18 months of the incest counts (7, 8 and 9) be cumulative on the base sentence  Charge 6, and I order that six months of the possess child pornography sentence (Charge 10) be cumulative upon the base sentence.

65      That makes a total effective sentence of 11 years.  I fix a non parole period of eight years.

66      

Given that you have pleaded to seven class 1 offences and

three class 2 offences under the Sex Offenders Registration Act 2004, you will be registered as a mandatory requirement. The length of your registration is for life. This registration imposes obligations on your and a breach of these obligations has serious repercussions. You will report your personal details to the Commissioner of Police upon your release, and thereafter for the rest of your life, with other prohibitions, one being in relation to a prohibition from gaining child-related employment. This is not part of my sentence but is mandatory because of your conviction and sentence.

67      

By virtue of your plea, you have received a benefit.  Your plea has saved the community costs, but more importantly, spared the victims and their families the ordeal of a trial and giving evidence.  Had you have been found guilty following a contested trial before a jury, I would have sentenced you to

13 years with a non parole period of ten.

68      I direct that statement be noted in the records of the court pursuant to 6AAA. 

69      I direct that the fact of you being sentenced as a serious sexual offender be noted in the records of the court.

70 Incest is a forensic sample offence under schedule 8 of the Crimes Act.  The prosecution has applied for an order pursuant to s.464ZF that you should undergo a forensic procedure to provide a forensic sample.  That application was consented to by you.  I am satisfied, in all the circumstances, that the making of the order is justified because of the seriousness of the offending, and it is in the public interest.  I order you to provide a scraping from your mouth for a sufficient sample to be obtained for placement on the database.  Police may use reasonable force to enable that procedure if you do not consent to it, and may obtain a blood sample at that time.

71      I have signed disposal orders, which were not opposed, and they will relate to the schedule attached to each, essentially in relation to the computer, the discs, the images and the mobile phone.

72      Is my disposition clear in terms of the concurrency and cumulation?

73      MS HARTNETT:  Sir, it appears to be.  Sir, there was just the issue in relation to the s.18 declaration regarding the 22 days that he has now spent in custody on this matter.

74      HIS HONOUR:  Yes, that is agreed, 22 days?

75      MS ELOVARIS:  Yes, Your Honour. 

76      HIS HONOUR:  Yes, I should have noted that there was no pre-sentence detention at the time of the plea.

77      MS HARTNETT:  Yes, sir.

78      HIS HONOUR:  I declare that you have served 22 days as pre-sentence detention and I will have that noted in the records of the court.

79      MS HARTNETT:  Thank you, Your Honour. 

80      

HIS HONOUR:  In relation to the serious sexual offender registration, I understand that some documentation has been provided to Mr Simpson, and

Mr Simpson, you are about to sign it; is that right?

81      PRISONER:  Yes.

82      HIS HONOUR:  If you would just briefly read the contents, because it gives rise to a significant number of obligations.  Although you will have time to take in the details,  I think you should  peruse it and acknowledge it, please.  It will then be faxed back to me, so that I can sign it.

83      Mr Simpson, do you see there a place for your acknowledgement, signature?

84      PRISONER:  Yes, the last page, p.5.

85      HIS HONOUR:  Yes, if you would sign that document, you can then hand it to the prisoner officer, who will then fax it back to my associate, who will sign it in time, and then I will ensure that you get a copy of that document.

86      PRISONER:  Very well.  He is here now.  I will sign it in front of him.

87      HIS HONOUR:  Yes.  To that officer - I am sorry, I do not know your name, sir - if I can ask you to make a copy of that for Mr Simpson, first of all, so that he has one.  Then would you mind faxing that document to my associate?  The original needs to be DX’ed to my associate in Shepparton.

88      PRISON OFFICER:  At Shepparton County Court, Your Honour.  Very well, I will do that now.

89      HIS HONOUR:  Thank you very much.

90      PRISON OFFICER:  No worries, sir.

91      HIS HONOUR:  Very well.

92      MS HARTNETT:  Thank you, sir. 

93      

HIS HONOUR:  Just to provide an opportunity for counsel to speak to

Mr Simpson, the link will remain open and I will step down from the bench.  Are there any other orders, Ms Elovaris, that I need to make?

94      MS ELOVARIS:  No further orders, Your Honour.

95      HIS HONOUR:  Thank you for your attendance.

96      MS HARTNETT:  Thank you, Your Honour. 

97      MS ELOVARIS:  Thank you.

98      HIS HONOUR:  I will stand down.

- - -