R v Brown

[2019] NSWDC 953

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Brown [2019] NSWDC 953

Hearing dates:

9 September 2019; 10 September 2019; 11 September 2019; 1 November 2019; 11 December 2019

Date of orders:

11 December 2019

Decision date:

11 December 2019

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [78] – [80]

Catchwords:

CRIME – sentence – historical child abuse – aggregate sentence

Legislation Cited:

Crimes Act 1900 NSW s 61E, 66A

Crimes (Sentencing Procedure) Act 1999 NSW ss 5, 21A

Category:

Sentence

Parties:

Regina (ODPP)
Garry James Brown (Offender)

Representation:

Counsel:
Ms Tennant (ODPP)
Mr O’Sullivan (Offender)

Solicitors:
Mr Block (ODPP)
Mr Bilias (Offender)

File Number(s):

2018/139621

Publication restriction:

Statutory prohibition on publication in relation to identity of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

1. Garry James Brown, hereafter referred to as ‘the Offender’, appears before the Court today for sentence in relation to a number of charges to which he pleaded guilty midway through trial. Prior to that time, he had not spent any time in custody. He was born 22 January 1951, and is almost 69 years of age. Up until about 10 years ago, he was employed as a plasterer, ceasing work due to an injury. As the Victim in this matter was a minor at the time of the subject offending, she will be referred to in these remarks as ‘MM’, or simply as ‘the Victim’, so as to protect her identity.

2. The Offender entered pleas of guilty on 11 September 2019 for the 2 counts on the indictment. A jury had been empanelled two days prior, and the Offender was being cross-examined by the Crown Prosecutor at the time of the plea. Regrettably, the Victim had already given evidence, and had been subjected to cross-examination before the pleas were forthcoming. The 2 counts on the indictment are:

1. that between 1 September 1989 and 31 January 1990 at Woy Woy in the State of New South Wales the Offender did assault the Victim, at a time of the assault committed an act of indecency on the Victim, namely, he did rub his penis on her buttocks, she then being under the age of 16, namely, 9 and also under the authority of the Offender at the time in breach of s61E(1A) of the Crimes Act. That offence carries a maximum penalty of 6 years’ imprisonment; and

2. that between the same dates at the same location the Offender did have sexual intercourse with the Victim who was at that time under the age of 10 years, namely, at the age of 9 years in breach of s 66A of the Crimes Act. At the time of the offending, the maximum penalty for that offence was 20 years’ imprisonment.

3. There are no charges on a Form 1 document, nor a 166 certificate. The maximum periods of imprisonment in respect of the 2 offences represent Parliament’s attitude to the seriousness of the offending, and are taken by the Court to be guideposts for the purposes of sentence.

4. As outlined on the indictment, the 2 offences occurred at some time between September 1989 and late January 1990, at the Offender’s home on the Central Coast. The Offender was arrested on 3 May 2018, at which time he was granted bail. On 26 April 2019, the Offender was committed for trial from the Gosford Local Court, first being arraigned in the District Court on 9 May 2019. The Offender originally pleaded not guilty before me, and before a jury panel on the morning of 9 September 2019. The trial was almost at an end on 11 September 2019 when the Offender began to give evidence. After being cross-examined, the Offender pleaded guilty to the 2 counts on the indictment. At that time, his bail was refused and his sentence, therefore, will be backdated to that date, namely, 11 September 2019.

5. The following are the Agreed Facts for sentence. The parties have helpfully put together an Agreed Statement of Evidence, which it is agreed will provide the basis upon which the Offender is to be sentenced.

6. The Victim, MM, was born in 1980. The Offender, his wife and the Offender’s 2 children previously resided at an address together on the Central Coast. The property was a 3-bedroom brick house with an in-ground pool at the rear of the premises. The Victim would regularly visit the Offender’s premises, particularly during the Summer months.

7. One day in late Spring or early Summer in 1989/1990 the Victim, her parents and her brother visited the Offender’s residence. The Victim was just 9 years old at the time. They arrived at approximately 11am on that day and had lunch, following which all 4 adults and all 4 children got into the swimming pool. After a certain point, everyone exited the swimming pool except for the MM and the Offender. The Offender took the Victim over to the pool stairs and sat down on one of the stairs, whilst holding the Victim’s arm. The Offender pulled the front of his swimming costume down slightly, exposing his erect penis, and grabbed the Victim by her sides and sat her down on his penis. The Victim could feel the Offender’s penis rubbing against her bottom. Those facts give rise to the first count on the indictment, Count 1.

8. The following facts relate to Count 2. The Offender then hooked his middle and index fingers of his left hand and moved the Victim’s swimming costume to the side. Using his right hand, the Offender then placed 2 fingers inside the Victim’s vagina, pushing them in as far as he could. The Offender moved his fingers inside of the Victim and continuously thrusted his hips upwards. This lasted for a period of approximately 10 to 15 minutes and neither the Offender nor the Victim spoke whilst this occurred. The Offender suddenly stopped thrusting his hips and removed his fingers from the Victim’s vagina. The Victim exited the pool and ran back inside the house, and the Victim went to the laundry to change out of her swimming costume. The Offender walked into the laundry in an effort to watch the Victim undress, and the Victim then went into her cousin’s room to get changed. The Victim did not report what had occurred in the swimming pool to anybody at that time.

9. Following that visit in 1989, the Victim’s mother observed a change in her behaviour. Her mother asked MM if anything was wrong, but she did not say anything. The Victim and her family continued to visit the Offender and his wife, and the Victim continued to see the Offender at get-togethers. MM felt she had to maintain a polite presence with him because she had not told anyone else in her family, and they would otherwise think she was being rude. The Victim kept her distance from the Offender.

10. In late 2014, MM made an anonymous report to the Department of Community Services (now the Department of Family Community Services) in relation to the alleged assault. At approximately the same time, in late 2014, the Victim disclosed this alleged assault to her father. When her father asked her why she had not disclosed the assault at the time that it had occurred, she advised that she did not think anyone would believe her, and that she was scared of reaction of the Offender's wife, Margaret. The Victim’s father asked her not to report the incident to police, stating it would cause a rift in her family.

11. MM also disclosed the assault to her fiancé in late 2014. The Victim stated to her fiancé that the Offender had done something to her when she was 9 years old, stating that she had been in the swimming pool with the Offender, and that he had put his fingers inside her. MM did not disclose specific details and began to cry. The Victim was asked why she had not told him earlier and asked whether the Victim had told anyone else, the Victim replied that she had not told anyone as she did not think that anyone would believe her. Shortly after the Victim’s report to FACS the Victim received a phone call from a detective from the Central Coast. The Victim detailed the alleged assault to that detective, but stated that she was not prepared to make a statement at that time. The Victim broke her silence to her mother in approximately 2017. The Victim called her mother on the telephone, and stated while crying that she had been sexually assaulted by the Offender in the swimming pool.

12. In approximately June 2017, the Victim visited an uncle, who is the brother of her father, along with her father and her fiancé. At this time the Victim saw the Offender and his wife for the first time in about 6 years. During this visit, the Victim’s father went out to lunch with the Offender and his wife, Margaret, but HH refused to go. The Victim disclosed the alleged assault to her uncle who replied, “[The Offender] is a dirty pervert.”

13. On 11 October 2017 the Victim, her father and her fiancé again visited her uncle. The Offender and his wife were again present on this occasion. The Victim refused to speak to or acknowledge the Offender. During the visit MM heard the Offender say to her uncle, as they were looking at photos of the pool and the granddaughter of the Offender, HH, “She is as beautiful as [MM] was”. That is, the Offender was comparing his granddaughter to the Victim.

14. The Victim said she was relieved that she no longer had to keep up the facade once she disclosed the assaults to her dad. The Victim said she did not tell anyone earlier because “I was scared that no one would believe me and I was scared of Margaret and her temper”.

15. I will pause briefly here to note that in developments which have occurred since the Offender pleaded guilty, it is perfectly clear why the Victim was and ought to have been afraid of Margaret. I will now return again to the Agreed Facts.

16. The Victim stated that she ended up disclosing because she was concerned for the Offender’s granddaughter, as she was approaching the same age as the Victim was when the Offender abused her.

17. On 15 October 2017, MM reported the assault to the police. On 2 February 2018, a surveillance device warrant was issued, authorising the use of a listening device to record a telephone conversation between the Offender and the Victim. On 23 February 2018, the Victim attended Gosford Police Station and Detective Senior Constable Raymond Hetherington explained to the Victim that she would call the Offender and the recording device would be attached to her mobile phone, which would record the conversation. Three calls were made to the Offender. The first occurred at 11.42am, and during which the Offender stated he was not in a position to talk. The second call, at 1.10pm, lasted 15 minutes, and the third call at 2.07pm lasted 4 minutes. The relevant excerpts of the second telephone conversation appear in the Agreed Facts, and I will recite them for the benefit of the record:

Offender: “[MM] this is all in your mind, darling, I never touched you and I never would.

MM: “But it’s not in my mind I know it happened and I’m just‑-“

Offender: “Don’t try and come at me with this [MM] because you will be very sorry if you do. I’m not saying nothing did but if it ever did I’m very sorry it’s affected you, how’s that?”

18. The Offender continued:

“I’m not going to talk about it because nothing ever happened.

19. The Offender then said:

“I don’t know what your problem is I don’t know where you got this from.”

20. The Victim then replied:

“Mm look, like you know where I got it from because it happened.”

21. The following exchange then occurred:

Offender: “Say something to Margaret because she’ll be pissed off if I have to.”

MM: “I don’t want to say anything to Margaret I’m not causing trouble for you I literally just hoping that if you have any sort of um love for me at all and you’re sorry for what you did then you know all I need is the sorry that you--

Offender: “I’ve been trying to tell you I’m sorry, okay.”

MM: “You did that, you’re sorry you did that.”

Offender: “I didn’t but I’m sorry, I’m sorry it has affected you like that but you sound like you’ve got other problems as well.”

22. The Offender then said:

“I never touched you, [MM], I would never touch any children you know. I mean like I said nothing ever before I’m sorry, you know. You’re like crazy you know.”

23. He then said:

“[MM] I say I’m sorry I don’t want it to go any further otherwise there’s going to be a lot of trouble. And like I say I did it’s going to help you I’m sorry but I, you know, I wouldn’t do anything. I’ll admit to something I didn’t do. But if you tell anyone I did then there’s going to be a lot of trouble.”

24. I just pause here to note that a number of the statements made during the course of the conversation were either unintelligible or not properly or adequately transcribed, hence the reason for the confusion in the transcription.

25. During the third telephone conversation, which occurred at 2.07pm for a duration of 4 minutes, the following exchange occurred:

MM: “You told Margaret”

Offender: “Of course we don’t keep secrets from each other it is quite annoying that you’re saying that, she’s angry really. See you’re going to cause a lot of trouble by accusing me of something I didn’t do.”

26. What followed was unintelligible, but what then followed that was the words “All in your head.” The Offender then said “Causing a lot of fucking trouble here”. He then said “I’m fucking angry okay”.

27. On 3 May 2018, the Offender attended Wyong Police Station and was placed under arrest. The Offender declined to be interviewed in relation to the alleged assault.

28. The Crown tendered a Victim Impact Statment in the sentencing proceedings which was read onto the record with great confidence by MM. She stated that the Offender took advantage of her family dynamics, and that she would not complain in fear of the family falling apart. She stated that her world was torn apart and her childhood was crushed by his offending. It was plain from observing her in Court that she remains deeply affected by the Offender’s conduct, which is not surprising given the its abhorrent nature.

29. MM also wrote about the impact since the Offender’s arrest, from receiving threats from the Offender’s wife and son, as well as a bribe being communicated to her on the day before the trial started.

30. After the trial, and the day before the sentence hearing, a vile and abusive letter was sent by the wife of the Offender to the father of the Victim. That document was tendered on the last occasion and it was marked Exhibit E. Whilst this does not impact the sentence for the Offender, it does demonstrate the rift and anger within the family arising from MM coming forward about the Offender’s abusive conduct towards her when she was a child. It reflects the fact that her fears of the family falling apart became a reality upon the complaint being made to police.

31. In terms of physical impacts, the Victim stated that she struggles with any invasive style medical examinations, and this has also extended to intimacy and relationship issues. It is clear that the impact of these offences has been long lasting upon MM. The sentence to be imposed will serve the purpose of recognising the harm done to the Victim, as well as acting as a deterrent to other paedophiles who seek to act upon their perverted sexual desires.

32. Exhibit 1 in the sentence proceedings was a report from Lee Knight, a forensic psychiatric nurse. When describing the offending to Mr Knight, the Offender described the offending as “stupid disgraceful thing to do”. He stated that he was sorry for the pain that he caused to the Victim and her family. He stated to Mr Knight that he would never commit such an offence again, and was aware of the hurt he has not only caused the Victim but to others affected. The Offender reported no symptoms of any mental illness other than a depressed mood and symptoms of anxiety since being incarcerated. The Offender currently suffers from bulging discs in his spine and hypertension.

33. The Offender had an unremarkable upbringing, growing up in Sydney with good relationships within his family and enjoying a relatively happy childhood. He reported that when he was aged 12, he was sexually abused by a male neighbour. The Offender stated that he had only told his wife about this abuse. It is not suggested, and frankly it would be difficult to conclude that this incident had any impact upon the Offender’s decision to indecently assault the Victim in the manner in which he did. The Offender left school at the age of 14 to commence working, from which time he worked as a plasterer until 2009.

34. The Offender has had one significant relationship, being with his wife, they were married in 1971 and have two children, a daughter aged 47 and a son aged 42. Their son continues to live with the Offender’s wife. The Offender has 2 grandchildren from his daughter. The Offender reported to Mr Knight that his wife has a history of suffering from mental health issues, as well as tinnitus and arthritic hips. He described a ‘brilliant’ relationship with his wife, but is naturally concerned of the impact that his incarceration will have on her. He described a similarly strong relationship with his children and grandchildren. Whilst a strain upon the Offender’s family is a regrettable consequence of his conduct, it goes nowhere near approaching exceptional circumstances, such that it ought to be considered as a matter in mitigation in this sentence. The effects upon the family are the obvious consequences of the choices made by the Offender in behaving in the manner in which he did.

35. During the consultation with Mr Knight, the Offender surprisingly, and somewhat unbelievably, denied that he was ever sexually aroused by children. That was plainly a lie. He was unable to offer to Mr Knight any explanation as to why the offending occurred, and this was addressed further in evidence before me.

36. In relation to the statement that he was never aroused by children, I questioned the Offender about that statement during the course of his evidence. It immediately seems at odds with the suggestion that he was, according to the Agreed Facts, experiencing an erection at the time that he was perpetrating his assault upon the Victim. Initially, I asked him when he saw Mr Knight whether he denied having a sexual interest in children. The Offender responded, “That’s right. He said ‘Do I get aroused by children’, which I said ‘I don’t.’” This exchange commences at transcript p 12 of 1 November 2019, line 28:

Q. Well you may not now but in the past you have obviously?

A. No, I haven’t. What I done I don’t know why I done it.

37. Plainly, those answers given to the Court under oath were lies. The following question and answer appears in the transcript shortly after:

Q. You also told Mr Knight you had been charged with 4 other sex offences?

A. No, not 4, no.

38. The Offender went on to admit there had been 2 other offences, but the charges had not been proceeded upon. At p 13 of the transcript at line 8:

Q. So, notwithstanding that you admit your guilt in relation to abusing [MM], that is, your 9 year old [victim], you maintain that you’ve never had a sexual interest in children?

A. No, I don’t know what I done, what I - but it’s never been, I never get aroused by it.

39. The following questions were then directly put to the Offender:

Q. When you pulled her onto your lap in the pool you had an erect penis, didn’t you?

A. I probably did, yes.

Q. So you were aroused?

A. Yes, yes.

Q. So you accept that you had a sexual interest in children?

A. Yes, yes.

Q. So what you told Mr Knight was a lie, is that right?

A. Yes, I didn’t think of it like that.

40. It is difficult to comprehend the series of questions and answers, and how the answers evolve in response to the questions other than an attempt by the Offender to mislead the Court in the course of the sentence hearing, so as to downplay his involvement in the offending, notwithstanding his guilty plea.

41. Mr Knight carried out the usual risk assessments for reoffending. The Offender scored as a ‘low risk’ on the Stable-2007 algorithm, and a ‘below average’ risk on the Static-99R assessments. Mr Knight proffered the following diagnostic impression:

Notwithstanding the index offence for which he is about to be sentenced Mr Brown denied any sexual interest in children, however I note that Mr Brown has been charged with four sexual offences spanning several years. Accordingly, these offences are not being proceeded with or withdraw. There is an index of suspicion that Mr Brown may have a sexual interest in children which exceeds six months’ duration. A diagnosis of paedophilic disorder should be considered by way of a further assessment once these matters have been finalised.

42. As I have already made clear, the Offender gave sworn evidence in the sentence hearing before the Court. He was asked for his response to the Victim Impact Statement, to which he replied:

Well she’s exactly right, it’s disgusting for me to do what I’d done and I truly am sorry that I’ve hurt her and her family and my own family, it’s a disgusting thing to do and, [MM], I’m sorry I didn’t mean to hurt you.

43. I should pause there to note that upon witnessing the Offender make that statement in Court and notwithstanding his other inconsistent statements made in Court, I regarded his statement of apology and acknowledgment of the harm as being genuine. When asked why he did not plead guilty at an earlier opportunity he stated at T8.44:

I really don’t know I should have to save [MM] all the hurt and pain, I should have in the first place pleaded guilty to save her all this hurt and embarrassment in going through a trial. I should have in the first place, I’ve done the wrong thing. It’s got nothing to do with [MM], it’s my fault, I, you know, you know, I just hope one day that [MM] can forgive me for what I’ve done to her. It’s - there was no intention to hurt her in the first place.”

44. Again, when that statement was made in Court, my impression of the Offender was that he was expressing genuine remorse.

45. The Offender gave evidence of his experience in custody, which is similar to other Offenders imprisoned for like offences. The Offender denied being involved in the letter which was sent to the Victim’s father, that being the letter which was sent the night or the day before the sentence hearing. This was signed off by the Offender’s wife, in which she made a number of inappropriate and disparaging remarks about the Victim in this trial which goes to show the level of hostility which exists. It also demonstrates, as I said previously, that it provides an explanation for the Victim’s delay in making a complaint about the offending. Whilst the letter has no effect upon this sentence, I note that the author of the letter is to be sentenced in relation to it in the Local Court.

46. The Offender also denied any knowledge of a bribe being made prior to the commencement of the trial. I note that there are also Local Court proceedings in relation to that attempt to pervert the course of justice. Otherwise, the Offender stated that he will do the Sex Offender’s program whilst in custody.

47. In relation to the letter sent by the Offender’s wife, incidentally, I did ask him why she would send the letter, considering that he pleaded guilty to the offences and the Offender stated that his wife not believe him. Upon being pressed, he eventually conceded that at the time of the offence he had a sexual interest in children, confirming Mr Knight’s suspicion as to that matter. The fact that his wife does not believe that he committed the offence to which he has pleaded guilty, and to which he is to be sentenced, causes doubt as to the reliability of any support he may have in the community.

48. In cross-examination by the Crown, the Offender conceded that he still had a sexual interest in children. He also conceded that he was not remorseful for his conduct at the time of the intercepted phone calls that were played during the trial, instead being more concerned about how his wife might react to the charges.

49. The Offender said that he has only apologised for his conduct since he went into custody. His response to that proposition was simply that he has had time to think about his actions, and that his conduct was disgraceful. Additionally, in cross-examination, he continued to deny that he was involved in either the bribe prior to the trial or the letter sent to the Victim’s father 2 days prior to the sentence hearing. Leaving aside the coercion and threats made to the Victim, before and after the trial to which the Offender appears not to have been responsible, his conduct in responding to the valid charges against him could only be described as a cowardly attempt at self-exculpation.

50. Written submissions were provided to the Court on behalf of the Offender. Mr O’Sullivan of counsel reminded the Court that I had previously indicated there would be a discount for the facilitation of the administration of justice, in accordance with s 22A. The pleas of guilty came at a time when the Court was under considerable pressure to deal with other matters, and justice in the Court’s system, generally, was assisted by the Offender pleading guilty, albeit at a very late stage.

51. It was conceded by Mr O’Sullivan that the s 5 threshold was crossed, and that s 25AA applies as it does to historical child sex offences.

52. In relation to objective seriousness, it was submitted that the offending was below the mid-range, as it was opportunistic, did not occur in the context of prior grooming, there were no threats and no physical violence. It was submitted by Mr O’Sullivan, the Offender is entitled to a discount of 5% based upon his plea during the trial.

53. It was further submitted that there ought to be a finding of special circumstances, as it was the Offender’s first time in custody, and also by reason of his age. Mr O’Sullivan submitted that the Offender continues to receive support from his family, which might reduce the risk of reoffending. I have already made comments in relation to that. The Offender’s family seems driven to blame the Victim for the Offender’s conduct, and I doubt that he will ever be provided with true support from any member of his family.

54. In respect of remorse, it was submitted the Offender has shown remorse and empathy for the Victim of his crime.

55. In the written submissions to the Crown, it was pointed out that offences of this type have a profound and deleterious effect on its Victims.

56. The Crown pointed to factors to be considered in the assessment of objective seriousness in relation to Count 1, being:

1. skin on skin contact;

2. holding the Victim’s arm and holding her in position;

3. the Offender exposing his erect penis and using his penis in the assault and;

4. the age of the Victim being just 9, well below the upper range age of 16 years for offences of that type.

57. The Crown submitted that this offence, Count 1, was at the mid-range of offences for this kind.

58. In determining the objective seriousness of Count 2, the Crown submitted that it was within the mid-range of objective seriousness for the following reasons:

1. the offence lasted for some 10 to 15 minutes;

2. the Victim was deeply penetrated; and

3. the Offender thrusted his hips upwards during the course of the penetration.

59. The Crown submitted that the offending is more objectively serious because of the breach of trust. Breach of trust does not arise in relation to the first Count, as it is an element of the offence. The Crown agreed that the Offender was entitled to a discount of 5% on sentence and accepted special circumstances.

60. The Crown submitted that prospects of rehabilitation could only be assessed as guarded.

61. In relation to any statutory aggravating factors arising under s 21A, I find that the only matter which applies is the breach of trust, which applies only to Count 2.

62. In relation to any mitigating factors under s 21A(3), I find that the Offender’s plea of guilty gives rise to an entitlement to mitigation, albeit affected by the timing of the plea. I also accept, despite my initial impression and, frankly, his reports to Mr Knight, that the Offender has accepted responsibility for his actions and the harm suffered by the Victim. He is resigned to the fact that he will spend a considerable period in prison for his offending.

63. In terms of the risk of reoffending and the prospects of rehabilitation, I find both to be guarded, and I am unable to make any positive findings of mitigation in that respect.

64. As to the objective gravity of the offending, I find that for both Counts the objective seriousness was at the midrange, based upon the matters identified by the Crown, together with, in relation to Count 2, the breach of trust.

65. It is further aggravated by the knowledge in the Offender that the Victim had a history of being sexually abused. Whilst it is necessary for matters such as that to be established beyond reasonable doubt, it arose in the course of the Victim Impact Statement, and was conceded by Mr O’Sullivan of counsel, that it was a matter which the Court should take into account as bearing upon the objective seriousness of the offending.

66. In terms of the subjective case, I find that the Offender has demonstrated remorse. I find that his risk of reoffending cannot be assessed until his ongoing sexual interest in children has been addressed through rehabilitation. It is at least encouraging that he is now in the course of the sentence hearing he recognised that he is a paedophile and requires treatment. Whilst Mr Knight noted that the Offender has been depressed and anxious since he went into custody, I do not find that it is anything exceptional to mitigate against the sentence. There is no suggestion that any mental state, other than perhaps a Paedophilic Disorder, had any connection with his offending. I find that due to his age, his medical condition and this being his first time in custody that he is entitled to a finding of special circumstances.

67. Before imposing a sentence upon the Offender, I have turned my mind to consider the purposes for sentencing, set out in s 3A of the Crimes (Sentencing Procedure) Act. Section 3A(a) is to ensure that the Offender is adequately punished. Offending of this type calls for stern punishment, particularly in relation to the second count, which involved the breach of trust.

68. The second purpose is to prevent crime by deterrence. That is, deterring both the Offender, himself, and other people in the community who have a sexual interest in children from offending in the like manner. That looms large in all sentences of this kind.

69. To protect the community from the Offender is the third purpose for sentencing. Given the evolution of his acknowledgment of the fact that he suffers from a Paedophilic Disorder, in that he is sexually attracted to children, there is no doubt that the community requires protection from this Offender.

70. Rehabilitation of the Offender is the fourth purpose of sentencing. As I have already said, I am encouraged by the acknowledgments made by the Offender, albeit under cross-examination in Court, as to his true condition, and I hope that he accesses whatever rehabilitative facilities are available to him in custody.

71. The fifth is to make the Offender accountable, and I am satisfied that the sentence will do that.

72. The next is to denounce the conduct of the Offender and, again, I am satisfied that the sentence will achieve that outcome.

73. Finally, the last purpose is to recognise the harm done to the Victim of the crime and to the community.

74. It was submitted by the Crown and conceded by the Offender that the s 5 threshold is crossed, and that no other sentence other than full time imprisonment is appropriate. I make that finding.

75. I intend to impose an aggregate sentence, as the offences occurred on the same day and within the same timeframe. The indicative sentences will incorporate a discount of 5% for the guilty pleas, and an unspecified discount for the facilitation of the administration of justice. I have also approached the sentence in the manner required by s 25AA of the Crimes (Sentencing Procedure Act), which mandates that the Court must sentence an Offender for child sex offences in accordance with the sentencing patterns and practices at the time of sentence, not at the time of offence, armed with the knowledge of the trauma that sexual abuse has on children which has become knowledge of the courts.

76. I provide the following indicatives:

1. in respect of Count 1, being assaulting a person under the age of 16 and committing an act of indecency the person being under authority in breach of s 61E(1A) of the Crimes Act, I provide an indicative sentence of 2 years, which after discount of 5% is an indicative sentence of 1 year and 10 months; and

2. in respect of Count 2, being sexual intercourse with a person under the age of 10 years, I provide an indicative sentence of 7 years, which after discount of 5% is a sentence of 6 years and 7 months.

77. Please stand, sir.

78. Mr Brown, you are convicted of the following charges to which you have pleaded guilty:

1. Count 1, being assault a person under the age of 16 years and commit an act of indecency with that person being a person under your authority in breach of s 61E(1A) of the Crimes Act; and

2. Count 2, being sexual intercourse with a person under the age of 10 years in breach of s 66A of the Crimes Act.

79. For those two convictions, you are sentenced to an aggregate term of imprisonment of 6 years and 6 months to date from 11 September 2019 and to expire on 10 March 2026.

80. You are sentenced to an aggregate non-parole period of 4 years and 4 months, to date from 11 September 2019 and to expire on 10 January 2024. At that time, you will be eligible for consideration to be released on parole.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 80 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

10 March 2021 - Further redaction of agreed facts.

Decision last updated: 10 March 2021