R v Brougham

[2024] NSWDC 329

District Court

New South Wales

Medium Neutral Citation:

R v Brougham [2024] NSWDC 329

Hearing dates:

4 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. For sequence 2, offender sentenced to a fixed term of imprisonment of 18 months.

3. Sequence 4 taken into account on a Form 1.

4. For sequence 8, offender sentenced to a term of imprisonment of 4 years and 6 months, with NPP of 2 years and 6 months.

5. Sequences 5 and 6 taken into account on a Form 1.

Catchwords:

EAGP SCHEME – misnomer – 11 months before pleas of guilty entered – nine mentions – unnecessary and long adjournments – chronology not unusual – frequent experience of this Court – offenders and victims not well served by EAGPS – meant to elicit early pleas for utilitarian benefit to administration of justice – review required

CRIME – sentence – (a) intentionally touch child aged between 10 and 16 – s66DB(a) Crimes Act 1900 – maximum penalty 10 years imprisonment – additional offence on Form 1 – (b) sexual intercourse with child aged between 10 and 14 – s66C(1) Crimes Act 1900 – maximum penalty 16 years imprisonment – standard NPP 7 years – two additional offences on Form 1

OFFENCE – sexual intercourse – fellatio – Form 1 – sexual touching in victim’s bedroom – sexual touching following day in pool in front of others – offender aged 32 – victim aged 11 – offender in relationship with victim’s older brother – offender lived in victim’s household

OBJECTIVE SERIOUSNESS – middle range – big age gap – bottom of relevant age range for child victim – not one-off offences – offence committed in victim’s home – victim entitled to feel safe – offences in pool and spa planned – no additional violence – committed in the open – degree of persistence

SUBJECTIVE CASE – Indigenous Australian man – witnessed domestic violence – hid sexuality – victim of childhood sexual abuse – poor educational history – long term unemployed – recognised sexual interest in children – sought psychological counselling – admitted difficulties controlling behaviour – anti-social – borderline personality traits – history of suicidal ideation – cognitive distortions supporting sexual offending – risk of reoffending well above average – guarded prospects of rehabilitation – prior convictions in Queensland for similar offences

SENTENCE – general and specific deterrence – denunciation – punishment – rehabilitation – 25% discount – utilitarian value of guilty plea – partial accumulation – close supervision in community – demonstrated remorse and contrition – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW): ss 66C(1), 66DB(a)

Crimes (Sentencing Procedure) Act 1999 (NSW): s 32

Criminal Procedure Act 1986 (NSW)

Category:

Sentence

Parties:

Rex (Crown)
Aaron Brougham (Offender)

Representation:

Counsel:
C Feiner (Offender)

Solicitors:
Legal Aid NSW (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/00027861

Publication restriction:

There is to be no publication of any details that might identify or tend to identify the complainant.

Judgment

1. This is a sentence judgment in the matter of Aaron Brougham. The offender Aaron Brougham is before the Court having been committed for sentence from the Broken Hill Local Court on 19 December 2023, following his pleas of guilty to a series of child sexual assault offences.

2. The long journey of this matter through the Local Court is worthy of mention. There were nine mentions of these matters in the Local Court between 27 January 2023, the day after he was arrested and when he was ultimately committed for sentence to this Court on 19 December 2023.

3. On that first day this was noted on the Court papers as being a matter coming within the Early Appropriate Guilty Plea Scheme, a misnomer given that it took 11 months before the pleas of guilty were finally entered and he was committed for sentence.

4. The charge certificate ought to have been presented to the magistrate no later than 27 July 2023. When the matter came to court on 25 July there was an application by the prosecution to extend the date for filing the charge certificate, which was objected to on behalf of the offender, but granted.

5. It is hard to understand why it was not possible for the prosecution to file a charge certificate within that six month time limit. There was in fact a charge certificate apparently dated 21 August 2023, signed by a crown prosecutor and filed in court on 22 August, which certified precisely the five counts with which the offender had been charged by police on 27 January 2023 and for which I now sentence him.

6. Even then there was another long adjournment for a case conference to be held and so it was adjourned to 24 October 2023 when the Local Court was advised that the case conference was due to be held on 3 November. That would appear to have occurred sometime before 28 November when the matter was yet again in court for another mention.

7. It would appear that shortly before that day, offers made earlier by the accused to plead in the way that is now before the Court were accepted, but only just before that return date. Even then the matter went over to 19 December 2023 before it was finally committed for sentence to this Court.

8. In the circumstances, the pleas can be regarded as, and I do take them as being, pleas made at the first available opportunity. But reciting that chronology through the inappropriately named Early Appropriate Guilty Plea Scheme, makes it clear that this opportunity should have been well before 19 December 2023.

9. That is far too long for someone to be in custody on remand and unsentenced for serious offences of this type and especially so, as it will become clear, because this particular offender has very significant needs for assistance as soon as possible.

10. It is also far too long for victims of these offences to wait to find out whether or not there will be pleas of guilty or whether they will be required to give evidence in a trial.

11. The Early Appropriate Guilty Plea Scheme commenced on 30 April 2018 and is governed by the provisions of the Criminal Procedure Act 1986 (NSW). In my view there needs to be some review of how it is operating because this chronology is not unusual and is the frequent experience of this Court.

12. It seems to be the case that far too much time is taken in the Local Court with adjournments which do not appear on the face of it to have much justification. The workload of the Local Court is huge and the magistrates of that Court have extremely heavy individual workloads. They do not need to have their lists extended by unnecessary adjournments like here.

13. It is my observation that both in that Court and in this Court, which is asked to sentence offenders in some meaningful way, when they have often spent something up to two years in custody on remand, the offenders themselves and the victims of many of the offences are not currently being well served by the Early Appropriate Guilty Plea Scheme, which was meant to elicit pleas of guilty early because of the utilitarian benefit that has to the administration of justice.

14. It seems to me that there needs to be an immediate review of how that scheme is currently working because it could not be said to provide a utilitarian benefit to the administration of justice for a matter to take nine mentions and 11 months for pleas of guilty to be entered for exactly the same offences that were charged 11 months earlier.

15. That having been said I now come to sentence the offender for the matters before me. There are two substantive offences and a number of matters to be taken into account as additional offences on Form 1 documents signed by him.

16. Sequence 2 is a substantive offence that on 26 January 2023 at Broken Hill the offender intentionally touched the named complainant who was a child aged between 10 and 16, namely 11. This offence is contrary to s 66DB(a) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 10 years imprisonment.

17. He asks that when sentencing him for this matter I take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), sequence 4, a further offence of sexually touching the same child at around the same time, also an offence contrary to the same section.

18. The second substantive offence for sentence is sequence 8, namely that on 25 January 2023 at Broken Hill the offender had sexual intercourse with the same complainant who was a child between the age of 10 and 14, namely 11 at the time. That is an offence contrary to s 66C(1) of the Crimes Act 1900 which carries a maximum penalty of 16 years imprisonment with a standard non-parole period of 7 years.

19. He asks that I take into account two additional offences when sentencing him for this matter. They are sequence 5, an offence of sexually touching the same complainant at Broken Hill on the same day, namely 25 January 2023 and sequence 6, a further offence of sexual touching also occurring at Broken Hill involving the same complainant at more or less the same time on 25 January 2023.

20. The facts are before the Court as agreed facts. They are not signed by the DPP or the offender, but are agreed facts on sentence. I accept the offender has agreed that these are the facts on which he is to be sentenced on the basis that there is no objection to the tender of that document on this sentence.

21. The offender was 32 at the time of offending and is now 33. The victim of these offences was an 11 year old boy at the time of offending. The offender was in a relationship with the victim’s older brother at the time of offending.

22. In November 2019 the offender commenced a relationship with the victim’s older brother and shortly afterwards moved into the household in which both the victim and his older brother, mother and others lived in South Australia. They lived in a caravan at the front of the house.

23. There are some matters in the agreed facts involving assertions that the offender had frequent and ready access and contact with the victim during a number of years leading up to the offences being committed, both whilst they were living in South Australia and after they moved to Broken Hill. It is not entirely clear the basis on which that material is before the Court.

24. In early January 2022 the victim moved back to Broken Hill with his mother and older brother. The offender stayed in South Australia for some time. In early December 2022 he stayed with the family in Broken Hill for Christmas, and it would appear resumed his relationship with the victim’s older brother. He stayed with the family for some days and had ongoing contact with the victim.

25. The offender and the victim’s older brother went to South Australia for a few days and then came back to Broken Hill on 10 January 2023, continuing to live with the victim and his family in that house.

26. On 25 January 2023 adult members of the household were home in the lounge room playing darts. I pause to note here that whilst I am sentencing on the basis of what are stated to be agreed facts, they are in fact not facts, but rather a summary of evidence which would have been called had it been necessary to prove these offences. Fortunately the DPP solicitor in her written submission has summarised those facts and put them in a form that they should have always been in, namely as facts to be distilled from the evidence, not just a bare statement of what the evidence would have been.

27. I do accept however from those “facts” that on 25 January 2023, at night, the victim was in his bedroom playing video games whilst the adults, including the offender, were playing darts in the lounge room. The offender said he was going to the bathroom. Whether or not he went to the bathroom is not in the facts, but he went to the victim’s bedroom and sat on the bed next to him.

28. He grabbed the victim’s penis on the outside and inside of his clothing which is the subject matter of sequence 5 and grabbed his bottom and kissed him. He sucked and licked his anus or bottom, which is the subject matter of sequence 6. Sequences 5 and 6 are the two Form 1 offences to be taken into account when sentencing for sequence 8. He then performed fellatio on the victim.

29. It would appear that the victim’s older brother came into the room looking for the offender who had been gone for about 20 minutes and saw him lying on the victim’s bed. There is nothing in the evidence to suggest that he witnessed any of the sexual contact between the offender and the victim. He told the offender to hurry up and come back into the lounge room.

30. There is no evidence from which I can determine the duration of these sexual acts but I infer that they did not go on for a very long period. The most the offender was absent was apparently 20 minutes.

31. The facts relevant for sequences 2 and 4 are also fortunately summarised by the DPP solicitor, because again, in the so-called agreed facts they are just a summary of evidence.

32. On 26 January, the following day, the victim went with his family to a friend’s house in Broken Hill for Australia Day celebrations. The people present included his older brother and the offender. There were a number of children there who all went into the pool when they arrived.

33. At one point in the afternoon most of the children left the pool and the victim was left in the pool by himself. The offender got up from where he was and got into the pool with him. He grabbed the victim from behind around the waist and pulled him closer to him and started to rock back and forth. The offender grabbed him and touched what is described as his private parts, which I understand refers to the victim’s genital area between his legs on the outside and inside of his shorts. Sequence 2 is the substantive count of sexual touching relevant for this incident in this pool. They would appear to be the sum total of all facts relevant for that offence.

34. The offender got out of the pool with the victim and then they both got into the spa. He again sexually touched the victim by grabbing and squeezing the victim’s genitals with his hand. The facts do not disclose whether this was outside or inside his shorts and that would appear to be the totality of the facts relied on or made available to the Court for both sequences 2 and 4, that being an offence of sexual touching to be taken into account on a Form 1 for the substantive offence sequence 2.

35. It would appear that adults at the party started to question the behaviour of the offender towards the victim in the pool and spa and he left the party with the victim’s older brother.

36. Later that evening the householder spoke to the victim at his mother’s request. He made a disclosure to her that the offender had been sexually touching him and also disclosed other sexual behaviour with the offender. She told the victim’s mother, and the police were called. They interviewed the victim later that night where he made the disclosures to them which are set out as summaries of the evidence in the agreed statement of facts and the basis of the facts which I have set out.

37. These are all clearly serious offences, as are all child sexual assault offences. The maximum penalty and standard non-parole period for sequence 8 at the very least makes that abundantly clear. I do note and accept the submissions made on behalf of the DPP that the Courts have been for a very long time clear that offences of this type should be viewed and treated with the utmost seriousness.

38. The Court is only too aware of the seriously adverse impact on children which occurs when they are used for sexual purposes by adults. This should never happen and it is the experience of the Courts that almost always this has serious and often long term, and sometimes lifelong, seriously adverse impacts on children.

39. There is a victim impact statement written by the victim of this matter which was read to the Court on his behalf and which I have read and taken into account. Like most victims of these offences, he has been adversely affected and continues to have psychological symptoms and sequelae as a result of being victimised in the way he was. He appears to be trying to take action towards healing himself, which is to be encouraged, but the Court is aware that it can be a long process and the victim is still only a young person of 13. It would appear that he is receiving counselling which is also to be encouraged and it is hoped that this will operate ultimately to allow him to regard himself as a survivor of child sexual abuse so that he goes on to live a safe and fulfilled life as a survivor, not as a victim.

40. His victim impact statement is only brief, but there is a glimmer of hope that he is trying to do just that. He is to be congratulated and encouraged for doing so and it is to be hoped that he ultimately succeeds.

41. There are a number of factors which inform the objective seriousness of the offences here, in addition to the general statement regarding the seriousness of all child sexual assault offences:

1. There was a big age gap between the offender and the victim;

2. The victim was only 11 which places him towards the bottom of the relevant age range for each of the offences;

3. These were not one-off offences. The victim told police, and it is part of the agreed facts, that the offender had committed other sexual acts on him over a period of time;

4. The victim was the offender’s partner’s brother, and he was part of the victim’s household. He was not in a position of authority, which would otherwise operate as an aggravating factor, but he was in a position where the victim was entitled to trust that he would treat him like a child and not for sexual purposes;

5. The offences on 25 January 2023 were committed in the victim’s home and in his bedroom where he as entitled to feel safe and secure;

6. The offences in the pool and spa would appear to have been at least to some extent planned. The offender waited until the other children had got out of the pool and then got into the pool with the victim and committed the offences. They were also brazen as they were committed in the open with others around the pool;

7. In the case of all the offences, they appear to have lasted for a relatively short period of time, and there is no evidence that there were any threats or coercion offered to the victim, and no violence in addition to the violence inherent in every sexual assault offence;

8. There is a degree of persistence evident from these offences given that they were committed over a two-day period and particularly in relation to the sequence 4 offence, committed immediately after having been in the pool then going into the spa and doing exactly the same thing immediately afterwards.

42. On this basis it seems to me that the offences are around the middle of the range for offences capable of being charged under these sections and perhaps just a little below the middle of the range.

43. For sequence 8, whilst there is a standard non-parole period it does not strictly apply because of the plea of guilty. It is however a yardstick for the Court to use when determining the appropriate penalty.

44. The offender was arrested on 26 January 2023 and did not engage in a record of interview. However during the charging process, he did break down and say “I’ve completely ruined my life I can’t believe what I’ve done.” He has been bail refused since being charged.

45. I now turn to the subjective case on behalf of the offender. He is now 33. Whilst he has no criminal record in New South Wales, he does have a record in Queensland for a similar matter. He was sentenced in July 2016 for an offence entitled “indecent treatment of a child under 16 on a date between August 2015 and January 2016”, which was particularised as exposing himself to that child. There was also a charge of grooming a child under 16 with the intention of exposing the child to indecent material during the same period, and a charge of possessing child exploitation material during the same period.

42. At the time he was convicted by the Court and released on a three-year good behaviour bond. This is the only matter of which he has been convicted anywhere so far as the evidence before me discloses. His record does not amount to a circumstance of aggravation but of course it disentitles him to leniency.

43. It is also certainly a matter of concern and consideration that he has been convicted and dealt with for a very similar sort of offence, when considering his prospects of rehabilitation and the need for ongoing treatment.

44. There is also an outstanding warrant for him in South Australia, issued after he was arrested for the offences before me, but apparently referring to an alleged offence entitled “grossly indecent act”, alleged to have occurred in September 2022. It appears from a reference in the psychological report tendered on his behalf that this is an allegation also involving some sexual contact with a child. That of course cannot be taken into account on this sentence because at present it is merely a charge for which an arrest warrant has been issued.

45. As I have said there is a psychological report tendered on his behalf authored by Ms Bennett, which is of great use to the Court in determining issues involving the offender himself and the appropriate sentence.

46. I accept from that report that he is an indigenous Australian man who was raised in Adelaide in public housing by his mother who was dependent on welfare payments. His father was generally absent and according to the offender was an alcoholic who would visit on weekends and become angry and violent. He witnessed domestic violence from his father to his mother. He had to ultimately hide his sexuality from his father, who would not have accepted it. He was actually raised by a neighbour until he was three because his mother was unable to cope with parenting.

47. He has advised the psychologist that when he and his sister were children aged between five and seven, they were sexually abused by a 16 year-old boy, but when that was disclosed to his mother the only action taken was that she smacked the perpetrator and there was no further action taken either against him or to assist the offender and his sister.

48. I accept that there is likely to be a connection between his own sexual abuse as a child and the fact that he has come to offend in the same way.

49. His family still lives in South Australia. It would appear his brother is in custody and has become a drug addict. He apparently now has a good relationship with his mother.

50. He has a poor educational history because of disruption as a result of his mother’s lack of parenting ability and he has been long term unemployed.

51. He has recognised his sexual interest in children and at the insistence of his partner, sought psychological counselling in 2022. He however appears to have disclosed that his interest was in boys between 16 and 18 which would appear not to have been a truthful disclosure at the time. He reported a history of sexual thoughts and fantasies involving children.

52. He has had a problematic relationship with alcohol in his earlier years, but that would appear to have been overcome, to a significant extent, at the time of offending.

53. He has had contacts with psychiatrists in the past. He received psychiatric treatment in 2016 because his mental health was identified by a partner as being problematic and he was prescribed anti-depressant medication which he took for two months. There is nothing before me about his current mental health, except in relation to his sexual deviance to which I will refer to soon.

54. He also sought help from a social worker in March 2022 at the request of his partner because of his attraction to underage boys. But he admitted to that psychologist that he had difficulties controlling his behaviour and it would appear to be in that overall context that he came to commit the offences before me. That is, an inability to control his behaviour, albeit that he had received or sought and received at least some counselling from a social worker and a reference to a psychologist.

55. I accept Ms Bennett’s opinion that his disrupted and dysfunctional background has affected his psychological personality and emotional development. Those aspects have included his parental separation, disrupted developmental attachments, poor parental health, witnessing domestic violence and all of those other matters referred to in paragraph 71 of her report.

56. I also accept her opinion that his risk of reoffending in the same way against children in the future is well above average and that his risk of doing so is in circumstances where he presents with sexual deviance including attraction to male children. He has anti-social and borderline personality traits. He has difficulties with impulse control and empathy and problems with establishing non-intimate relationships. He has problems relating to emotion regulation and depressed mood. He does have a history of suicidal ideation and has problems coping with stress. He has poor personal boundaries with respect to children and cognitive distortions that support sexual offending.

57. As already stated, he is a victim of childhood sexual abuse himself and he does not appear to have a full understanding of the factors and processes that place him at risk of sexual offending.

58. I further accept her opinion that he ought to be prioritised whilst he remains to serve the balance of his non-parole period by Corrective Services to complete a High Intensity Sex Offender Program. He would appear to be prepared to do so and I accept has at least some insight into his offending behaviour, recognises that he has a problem and is willing to complete a sex offender program. I accept Ms Bennett’s opinion that ideally he should complete this program before he leaves custody.

59. I also accept that he will require close supervision in the community for a somewhat longer than normal period once he is released so that his risks of further offending are reduced as much as possible. I accept her opinion that on his release into the community he needs to be carefully managed including being subject to careful monitoring and supervision.

60. It will be necessary for him to have suitable and stable accommodation as well as some financial assistance. Ideally, he needs to have access and treatment from a forensic psychologist when he is released to address his mental health needs and the risk factors associated with his offending.

61. The treatment plan recommended by Ms Bennett is one which. it appears to me. would have substantial benefits to the offender and therefore to the community once he is released on parole.

62. It is to be hoped that Ms Bennett’s recommendation for treatment whilst he remains in custody is taken up by Corrective Services because he is willing to undertake it and has some insight into the reasons for his offending behaviour and the High Intensity Sex Offender Program offered by Corrective Services is known to target the very risk factors with which he presents, namely empathy deficits, cognitive distortions and general self-regulation.

63. I accept Ms Bennett’s opinion that these programs have been demonstrated to be effective in assisting in the reduction of offending which of course is not only in the interests of the offender but significantly in the interests of the community once he is released.

64. His prospects of rehabilitation clearly can only be regarded as guarded given the complex nature of his mental health condition. They would be improved if he is given access to appropriate treatment in custody and a proper treatment program is put in place on his release to parole.

65. I accept that he has demonstrated remorse and contrition and even what he said to the police on the day of his arrest demonstrates that to an extent. Further I accept that he has done so by pleading guilty and by allowing himself to be available for appropriate treatment. It is most unfortunate that, because of the delays that have occurred, this has not already started.

66. The sentences of course should carry a significant element of general deterrence because of the nature of the offending. They should send a message to the community that those who would engage children for their own sexual pleasure will receive terms of imprisonment and when they amount to acts of sexual intercourse, as for sequence 8, those terms of imprisonment will always be served in fulltime custody because of other provisions of the sentencing legislation. There also needs to be denunciation of his conduct, punishment and a degree of specific deterrence reflected in the sentence.

67. There also needs to be an eye to rehabilitation. Of course, ultimately the community will benefit if when he is released to parole, he is released in a way that means he will not offend like this again. Rehabilitation is an important aspect of the sentence.

68. I then turn to the appropriate sentences. Sequence 8 is of course the most serious of the two substantive offences for which I sentence him.

69. I must take into account the two Form 1 offences, sequences 5 and 6 in a meaningful way, but in effect it seems to me they are largely part of the same offending committed at the same time. The fact that in addition to engaging in fellatio with the victim, he also touched his genitals and kissed him in the area of his anus are relatively serious incidents of sexual touching and should be taken into account in a meaningful way by imposing a sentence for sequence 8 which is slightly higher than it might otherwise be, but always taking into account that to a very large extent they are part of the same episode.

70. In my view the starting point for sequence 8 should be a sentence of 6 years to be reduced by 25% namely 18 months to take into account the utilitarian value of the plea of guilty. That would give rise to an overall term of imprisonment of 4 years and 6 months. There will be a non-parole period of 2 years and 6 months on the finding of special circumstances which are the following:

1. This is the first time in custody for the offender; and

2. The need for a somewhat lengthier period of supervision in the community on parole to deal with his complex mental health needs.

75. For the other substantive offence, sequence 2, again the Form 1 offence sequence 4 must be taken into account in a meaningful way and especially so because it seems to demonstrate a degree of persistence.

76. In my view the starting point for sequence 2, taking that additional offence into account would be 2 years less 25% per cent giving rise to a term of imprisonment of 18 months.

77. If it entirely accumulated, one on the other, these two terms of imprisonment would amount to 6 years which in my view is slightly excessive and there should be some partial accumulation. Overall I am proposing a sentence regime which would be a term of imprisonment of 5 years with an overall non-parole period of 3 years. I will sentence the sequence 2 offence to a fixed term of imprisonment of 18 months, declining to set a non-parole period because it is part of an overall non-parole period and commencing the other sentence 6 months into that fixed term, so that it gives rise to the overall period of 5 years with an overall non-parole period of 3 years which I intend to be the case.

78. I am just about to announce the orders - is there anything that either of you wish to be heard about?

79. SCOTT: No your Honour.

80. WRIGHT: No your Honour.

81. For those reasons then I make the following formal orders.

82. For sequences 2 and 4 the offender is convicted.

83. For sequence 2 he is sentenced to a fixed term of 18 months imprisonment commencing 26 January 2023 and expiring 25 July 2024. I decline to set a non-parole because this is part of an overall non-parole period. Sequence 4 is taken into account as a Form 1 offence.

84. For sequence 8 he is sentenced to a non-parole period of 2 years and 6 months commencing 26 July 2023 and expiring 25 January 2026, with parole thereafter of 2 years commencing 26 January 2026 expiring 25 January 2028 giving rise to an overall term of imprisonment 4 years and 6 months commencing 26 July 2023 expiring 25 January 2028. Sequences 5 and 6 are taken into account when sentencing for that matter.

85. The offender will become eligible for release to parole on 25 January 2026 which will mean the sentence overall is as intended namely an overall period in custody of 3 years with parole thereafter of 2 years.

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Decision last updated: 09 August 2024