R v Brabazon

[2020] NSWDC 814

District Court

New South Wales

Medium Neutral Citation:

R v Brabazon [2020] NSWDC 814

Hearing dates:

10/8/20-21/8/20, 23/10/20, 11/11/20

Date of orders:

11/11/20

Decision date:

11 November 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Sentenced to an aggregate term of imprisonment of 14 years with a NPP of 9 years 6 months

Catchwords:

Crime – Sentence - Commit act of indecency with or towards a person under the age of ten - Incite person under ten years of age to commit an act of indecency -

Sexual intercourse with person under the age of ten years - Sexual intercourse with person of or above the age of ten but under the age of 14 years in circumstances of aggravation (under authority)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

AK v R [2016] NSWCCA 238

Bugmy v The Queen [2013] HCA 37

PGM v The Queen [2008] NSWCCA 172

Category:

Sentence

Parties:

NSW DPP – Crown
Terrence Charles Francis Brabazon - Offender

Representation:

Ms M Fleeton for Crown
Ms J Hopper for Offender

File Number(s):

19/63258

Publication restriction:

NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT

sentence

1. I note, firstly, in relation to Mr Brabazon's matter that there is a non-publication provision which means that there must be no publication which has the effect of disclosing the identity of the complainant.

2. In this matter, on 21 August 2020 after a trial lasting about seven days the offender, Mr Brabazon, was found guilty on all nineteen counts of an indictment alleging various sexual offences against a single complainant. The offender must now be sentenced for those offences.

THE OFFENCES

3. The offences are as follows: Five offences under section 61O(2) of committing an act of indecency with or towards a person under the age of ten years, the maximum penalty for that offence being seven years' imprisonment. Five further offences under section 61O(2) of inciting a person under ten years of age to commit an act of indecency, the maximum penalty being seven years' imprisonment. Seven offences under section 66A(1) of having sexual intercourse with a person under the age of ten years. the maximum penalty for that offence is 25 years' imprisonment and a standard non parole period of 15 years is specified. Finally, two offences under section 66C(2) of having sexual intercourse with a person of or above the age of ten but under the age of 14 years in circumstances of aggravation, namely, that the person was under the offender's authority. The maximum penalty for that offence is 20 years imprisonment.

4. The maximum penalties and, where applicable, standard non parole period are of course important legislative guideposts in the sentencing exercise that I must undertake.

FACTS

5. The Crown submissions included a document entitled, "Crown outline of findings of facts," which describe the seven incidents on which the 19 counts in the indictment are based. It was conceded by counsel for the offender that that document provides an accurate description of the facts as particularised in the evidence placed before the jury. I have used that document as a convenient summary for the purposes of my findings of fact on sentence.

6. In short the facts are as follows: The complainant was born on 9 June 2002. His mother met the offender on 24 July 2010 at a rock concert at the Lewisham Hotel. After that they communicated for a time via Facebook and shortly after, in around September 2010, the offender moved into the house at North Richmond where the complainant lived with his mother, older sister and younger brother. At that time the complainant was aged eight. His older sister was twelve and his younger brother was about three.

7. The first incident, which is the subject of counts 1 and 2, occurred within a couple of months after the offender moved into the house. The offending continued over a period of almost three years. Incident one occurred while the complainant was at home with the offender, and his mother was out. The offender took the complainant into the main bedroom and commenced playing a pornographic movie on a laptop computer. The offender then unzipped his pants and began masturbating while the complainant sat next to him. While continuing to masturbate, the offender told the complainant to masturbate himself. At the request of the offender the complainant then pulled his pants down slightly and began masturbating.

8. Count 1 involves the conduct of the offender by masturbating towards this complainant who was then aged under ten years; namely, eight years.

9. Count 2 involves the offender inciting the victim to masturbate himself while the offender was with him on this same occasion.

10. The complainant gave context evidence at the trial that similar things to this first incident would occur regularly and, as he said, "pretty much every time that mum would leave the house." This continued over a period of almost three years. The complainant gave evidence, which I accept, that there were more than ten times on which he was required to masturbate with the offender, probably more than ten times that he was forced to perform fellatio on the offender, and about five or six times when the offender had anal intercourse with him. The additional sexual incidents that I am about to describe therefore represent only a portion of the offender's sexual offending against the complainant.

11. The offender is not to be sentenced for this additional contextual offending behaviour. Furthermore, this additional contextual offending, which involved a course of conduct, is not a matter that aggravates the offences for which the offender is to be sentenced. The effect of this evidence however is that the offender is deprived of any claim to mitigation which might have arisen had the offences in the indictment been his only transgressions: see AK v R [2016] NSWCCA 238 at 67 to 73.

12. Incident 2 occurred between 2 September 2010 and 31 August 2011 but shortly after the first incident and again when the complainant's mother was out and the offender was, in effect, in charge of the children including the complainant. This incident commenced in a similar way to the first incident with the offender, while watching pornography on a laptop, masturbating in the presence of the complainant (count 4) and then instructing the complainant to masturbate himself at the same time (count 5). However on this occasion the offender went further and made the complainant kneel on the floor, after which he put his penis into the complainant's mouth until he ejaculated into his mouth (count 3).

13. The third incident occurred between 3 September 2010 and 31 August 2011, again when the offender was alone with the complainant. Again the offender committed an act of indecency towards the complainant by masturbating in front of him while watching pornography on a laptop (count 6) and then inciting the complainant to masturbate while he was seated next to him (count 7). After this the offender made the complainant kneel and put his penis into his mouth until he ejaculated (count 8).

14. The fourth incident occurred somewhere between 4 September 2010 and 30 August 2011 when the offender was again alone with the complainant. The offence in count 9 involved the offender committing an act of indecency towards the complainant by masturbating in front of him while watching pornography on a laptop. Count 10 involved the offender inciting the complainant to masturbate while sitting next to him and count 11 involved the offender requiring the complainant to kneel while the offender put his penis into the complainant's mouth until he ejaculated.

15. Incident 5 took place between 5 September 2010 and 30 August 2011. The incident commenced in a similar way with the offender committing an act of indecency towards the complainant by masturbating in front of him while watching pornography on a laptop (count 12) and then (count 13) inciting the complainant to masturbate himself. The offender then made the complainant kneel and put his penis into the complainant's mouth but on this occasion he did not ejaculate (count 14). The offender then removed his penis from the mouth of the complainant, left the room and brought back a towel from the bathroom, took lubricant from a drawer in the bedroom and then removed his own pants. He then put lubricant on his penis and told the complainant to remove his pants and get on his hands and knees. After this the offender put lubricant on the complainant's anus and then inserted his penis into the complainant's anus causing a lot of pain to the complainant. The offender then had anal intercourse with the complainant until the offender ejaculated (count 15).

16. Incident 6 occurred when the complainant, who was still under ten years, went on a camping trip with the offender to Bowen Mountain. The complainant's mother dropped them somewhere near the campsite and after walking for some distance they camped for one night. This sixth incident occurred between 1 September 2010 and 8 June 2012. After setting up camp and lighting a campfire the offender produced a flask of alcohol which he gave to the complainant to sip, and some marijuana of which the complainant was permitted to take a couple of puffs. Later in the night the offender told the complainant to take off his clothes and the offender also removed his own clothes. The offender then instructed the complainant to perform fellatio although he did not ejaculate (count 16). After this he instructed the complainant to get on his hands and knees after which the offender placed a condom on his penis and had anal intercourse with the complainant to ejaculation (count 17).

17. The seventh incident also occurred on a camping trip to Bowen Mountain somewhere between 9 June 2012 and 8 June 2013 after the complainant had turned ten years of age. The sexual offending on this occasion was of a similar kind to the previous camping trip. Firstly, the offender instructed the complainant to perform fellatio on him, although not to the point of ejaculation (count 18), and the offender then instructed the complainant to get on his hands and knees after which the offender placed a condom on his penis and had anal intercourse with the complainant to ejaculation (count 19). I note also that on the two camping trips the offender displayed pornography, which he had previously downloaded on his mobile telephone.

OBJECTIVE SERIOUSNESS

18. An important part in this sentencing exercise is that I make an assessment of the objective seriousness of the various offences for which the offender must be sentenced. The maximum penalties in this matter, which range between 7 years and 25 years imprisonment, provide a clear statement by Parliament that each of the offences are regarded as serious and particularly serious in the case of the offences involving sexual intercourse. The prevalence of sexual offences against children has become more and more apparent in recent decades and, partly in recognition of this fact, courts have repeatedly stated that those who engage in such evil conduct must receive severe punishments.

19. The objective seriousness of an offence involving sexual misconduct towards a child must, of course, depend very much on the circumstances of the particular offending. More particularly, it will depend on matters such as the nature of the sexual misconduct, the age of the child, the duration of the offending, and the extent to which the offender has exploited the youth and vulnerability of the victim.

20. The objective seriousness of the two offences involved in incident 1 is increased by reason that the offences occurred in the complainant's home where he was entitled to feel safe and also by the fact that the offender was in a position of trust or authority by reason of his being the partner of the complainant's mother and effectively in charge of the complainant in her absence. I assess the objective seriousness of these two offences as being around the mid-range.

21. I make the same assessment of the objective seriousness of the s 61O(2) offences in counts 4 and 5 which form part of incident 2; counts 6 and 7 which are part of incident 3; counts 9 and 10 which relate to incident 4; and, counts 12 and 13 which relate to incident 5. As I have indicated each of these offences lie around the mid-range.

22. Count 3 of the second incident, count 8 of the third incident and count 11 of the fourth incident each involved forced fellatio to the point of ejaculation in the complainant's mouth. Each of these offences took place in the complainant's home at a time when the offender was in a position of trust or authority. I assess these sexual intercourse offences as also being in about the mid-range. Count 14, which was part of the offending in the fifth incident, involved forced fellatio although not to the point of ejaculation. Again it occurred in the complainant's home and at a time when the offender was in a position of trust or authority. I assess this offence as being just below the mid-range.

23. Count 15 was also part of the fifth incident of offending and involved anal intercourse to the point of ejaculation without the use of a condom. The objective seriousness and sense of violation involved in this offence, with the risk of disease and injury to the complainant's anal region, is very serious and obvious. Again it occurred in the complainant's home and was committed by an offender who was in a position of trust or authority. I assess this offence as being well into the mid-range.

24. Count 16 which occurred during the sixth incident, when on a camping trip, involved forced fellatio. Although this offence is aggravated by reason of the offender being in a position of trust, it did not occur in the home of the complainant, and did not involve ejaculation into the complainant's mouth. I assess this offence as being below the mid-range but not far below that range.

25. Count 17 also occurred during this sixth incident when the offender who was in a position of trust had anal intercourse to the point of ejaculation using a condom. I assess this offence as being in the mid-range.

26. Counts 18 and 19 which relate to the seventh incident involve the same form of sexual activity on a camping trip as did counts 16 and 17 however these offences occurred later in time and between 9 June 2012 and 8 June 2013 when the complainant was over ten years of age. An essential element of these offences under section 66C(2) is that the complainant was under the authority of the offender and so this cannot be regarded as an aggravating feature of the offending beyond that inherent in the elements of the offence itself. These two offences also do not involve the aggravating feature of having occurred in the home of the complainant. I assess the offence involving fellatio as being slightly below the mid-range and the offence involving anal intercourse using a condom as being just into the mid-range.

27. The overall seriousness of the offending in this case is of course magnified by the fact that it occurred over a period of two to three years. Furthermore, and as I have already noted, the complainant gave evidence that the offender would engage in sexual activity with him on a regular basis; that is, on many more occasions than those referred to in the indictment. While the offender is not to be sentenced for that additional offending it does mean that he is not entitled to the leniency that might have been appropriate if his offences were isolated aberrations in otherwise appropriate behaviour. The offender I note also engaged in manipulative behaviour aimed at trying to normalise his sexual offences against the complainant by showing him pornography and by telling him that these practices were engaged in by the ancient Greeks. I do not treat this as aggravating the offending but it again demonstrates that the offender's actions involved a course of conduct rather than involving isolated aberrations.

28. I note that the Crown argued that the offences in counts 16 to 19 are aggravated by reason that the offender allowed or encouraged the complainant to consume alcohol or cannabis. I have considered this argument, however, I do not accept that this aggravates these offences. That is because the evidence of the complainant does not, in my view, support the conclusion that his consumption of these substances contributed to or facilitated the offending to any material degree. Those latter offences occurred as part of a longstanding pattern of abuse and exploitation of the relationship between the offender and the complainant. In my view the offending and the complainant's compliance with the offender's sexual demands and exploitations was the product, as the complainant said, of his feelings of being helpless and scared rather than the influence of any small quantities of drugs or alcohol that he consumed.

SUBJECTIVE MATTERS

29. I turn then to consider subjective matters relating to the offender. The offender is now 41 years of age and was between the ages of about 31 and 34 at the time of the offences. He did not give evidence in the sentence proceedings. His subjective case has been placed before the Court by means of the psychiatric report of Dr Richard Furst and the contents of the Sentencing Assessment Report. As the offender gave no evidence in the sentencing proceedings, I approach with caution the matters reported by him to the psychiatrist. As is well accepted, the weight I can give to the offender's self-report is significantly diminished in the absence of sworn evidence.

30. There are, however, a number of matters set out in the history reported by the offender to Dr Furst which I do accept even in the absence of sworn evidence. They are as follows:

31. The offender has been in a relationship with his partner, Rebecca, for about five and a half years and they married in 2016. It seems that the offender still enjoys the support of his wife, who I note was present throughout the trial and during the sentence proceedings. The offender attended school in Victoria until year 10 and there was, it seems, some instability in his family life with his parents separating when he was quite young, with the result that his father played almost no role in his life. His mother re partnered and the offender took the surname Brabazon which was his step father's. His mother died from breast cancer when the offender was only 16 and the offender thereafter remained in the care of his stepfather.

32. The offender told the psychiatrist that he "went off the rails" for a while in his late teens drinking heavily and smoking cannabis regularly. The offender also reported that he was himself subject to sexual abuse by a male family friend when he was about 12 years old and that he was raped a number of times by this man until the age of about 14. He told the psychiatrist that he did not report the offences, and that the offences led to psychological difficulties such as intrusive negative thoughts and sleep disturbance. He said that when he was 18 he attempted suicide and received some inpatient treatment at a facility in Victoria at that time and also when he was about 19.

33. After moving to Sydney in his early twenties the offender commenced a relationship with the complainant's mother in 2010 when the offender was about 30 years old and this relationship continued until about 2015.

34. The offender has a reasonably consistent record of employment in various jobs and also at times has worked as a magician and hypnotist.

35. The offender reports a history of cerebrovascular disease although it appears that this is controlled by medication. The psychiatrist noted that the offender had reported significant anxiety and stress in the wake of being charged with these offences but noted that he was lucid and logical and had no signs of psychosis. Nonetheless the psychiatrist concluded that the offender meets the diagnostic criteria for panic disorder, recurrent major depressive disorder and substance use disorder, although that last disorder is currently in remission.

29. It was not argued that the offender's history is such as to reduce his moral culpability in accordance with the principles discussed by the High Court of Australia in Bugmy v The Queen [2013] HCA 37. However it was submitted on the offender's behalf that his time in custody is likely to be more difficult by reason of his mental condition and likely isolation in prison. I have taken this into account as part of the offender's general subjective case and I also intend to make some adjustment by reason of a finding of special circumstances on this basis given that the offender's time in custody will likely be more onerous due to his mental state. I note that this was conceded by the Crown in oral submissions.

30. The offender has no prior history of offences and is to be regarded as a person of good character prior to the commission of these offences. However prior good character is not necessarily a matter that carries great weight in offences of this kind. Giving significant weight to previous good character in a case where the offending extends over a lengthy period fails to recognise the pattern of repeat offending and the actions of the offender in using his relationship for his own sexual gratification; see the observations of Fullerton J in PGM v The Queen [2008] NSWCCA 172 at 44. In this case the offending extended over a period of years which clearly underlines its highly exploitative nature. While I have taken into account the offender's prior good character it is not a matter to which I attach great weight.

REMORSE AND CONTRITION

38. The Sentencing Assessment Report confirms that the offender continues to deny his offences and blames the complainant's mother for what he says are false allegations being made against him. In those circumstances it is not surprising that the author of the Sentencing Assessment Report concluded that the offender appeared to have insight deficits into his own conduct.

39. I pause to note that the offender's claim that the complainant's mother is in some way responsible for the complainant's allegations is in no way supported by the evidence at trial. There is of course never any onus on an accused person to explain why an allegation has been made against them. However in this case it was never suggested in any fashion that the complainant's mother had any role at all in the allegations, which have now been proven, and which the complainant had earlier also reported to various complaint witnesses. Indeed it was never even suggested to the complainant, whose evidence was, in my view, compelling, that his mother had played any part in him making the disclosures that he did or that there was any other basis for him to have made up false allegations.

40. In essence the defence case was run largely on the basis that the complainant's allegations lacked detail and were improbable due to surrounding circumstances, such as the dimensions of the offender's bedroom and there being insufficient space for some of the alleged offending to have taken place. Not surprisingly the jury rejected these submissions. In making these observations I am in no way suggesting that the offending is aggravated by what I regard as the offender's false suggestion that the complainant's mother was instrumental in bringing about false allegations against him. Rather, I record these observations because they confirm my conclusion, and that of the Community Correction officer, that the offender has no insight into his responsibility for his criminal actions. Consistently with these observations I conclude that there is not the slightest evidence of remorse in this case.

FUTURE RISK

41. The Sentencing Assessment Report notes that on the Level of Service Inventory Revised test, the offender was rated as low risk however this was overridden to medium risk based on the results of a Static 99 test indicating an average risk. According to the psychiatrist Dr Furst however the Static 99 risk level is below average.

42. Taking all of this into account, in addition to the sustained and serious nature of the offending and the offender's continued denial of his actions, my own view is that he remains an appreciable risk at least until he receives some appropriate treatment which hopefully he will commence in custody. On the state of the evidence at present I am not able to conclude that he is unlikely to reoffend. His prospects of rehabilitation are in my view uncertain.

DETERMINATION

43. I am satisfied that each of the offences require a full time custodial sentence and that nothing short of this would be adequate punishment. I have had regard to the principles of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and in particular the need for adequate punishment, denunciation, personal and general deterrence, recognition of the harm done to the victim but also the need to promote the rehabilitation of the offender.

44. I intend to impose an aggregate sentence. I also intend in setting the non-parole period to make some allowance by way of special circumstances on account of the evidence, limited though it is, of the offender's mental state and the need for him to be supervised or monitored on his release. The adjustment for special circumstances however ought not be large, in my view, because the sentence that I will impose will already involve a significant period of time on parole.

45. As I intend to impose an aggregate sentence I am required to nominate the indicative sentences that I would otherwise have imposed. Mr Brabazon, the sentences that I am about to refer to are not the ultimate sentences that I will impose, these are what are called indicative sentences.

46. For the following counts 1, 2, 4, 5, 6, 7, 9, 10, 12 and 13 the indicative terms in each of those cases is 2 years 10 months' imprisonment. For counts 3, 8 and 11, those being some of the offences involving fellatio, the indicative terms are 5 years' imprisonment with a non-parole period of 3 years 5 months in each case. For count 14, the indicative term is 4 years 6 months with a non-parole period of 3 years 1 month. For count 15 the indicative term is 6 years with a non-parole period of 4 years 1 month. For count 16 the indicative term is 4 years 3 months with a non-parole period of 2 years 11 months. For count 17 the indicative term is 5 years 6 months with a non-parole period of 3 years 9 months. For count 18 the indicative term is 4 years' imprisonment and for count 19 the indicative term is 4 years 6 months imprisonment.

47. The aggregate sentence that I will impose represents only a small percentage of the sum of those indicative terms. That is because I have, as I am required to do, had regard to the principle of totality and have reviewed the overall aggregate sentence so as to ensure that while it represents the minimum period required for this serious offending it is not so severe as to crush any prospects of rehabilitation or an effective life after the offender's release to parole.

48. Mr Brabazon, if you could stand and I will just explain to you the sentence which I will now announce:

49. I impose an aggregate non parole period of nine years six months. I impose an additional term of four years six months. The overall sentence therefore is one of fourteen years with a non-parole period of nine years six months. Each of those will date from 21 August 2020. The head sentence will expire on 20 August 2034. The non-parole period will expire on 20 February 2030.

50. I direct that a copy of the psychiatric report of Dr Furst be sent to Corrective Services and to Justice Health and also to the offender's general practitioner.

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Decision last updated: 22 January 2021