R v Brown

[2019] NSWDC 845

District Court

New South Wales

Medium Neutral Citation:	R v Brown [2019] NSWDC 845
Hearing dates:	16 August 2019, 4 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of three years 6 months with a non parole period of one year ten months. For orders see [47] – [48]
Catchwords:	SENTENCING – Relevant factors on sentence – child sexual assault – multiple victims – delay – offender previously dealt with for offending against other victims – victim impact – ill health – offender abused as a child – impact of delay
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v MJR (2002) 54 NSWLR 368 Minehan [2010] NSWCCA 140 R v Booth [2009] NSWCCA 89 R v Todd [1982] 2 NSWLR 517 R v Gannon (unrep, 19/8/84, NSWCCA) R v Burrell (2000) 114 A Crim R 207 R v Sellen (1991) 57 A Crim R 313
Category:	Sentence
Parties:	Stephen Douglas Brown (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the offender) Mr D Scully, Deputy Senior Crown Prosecutor   Solicitors: Morrisons Law (for the offender)
File Number(s):	2018/00020668
Publication restriction:	Pseudonyms have been used for the names of the child victims and other children (not their real initials). Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child. Identifying information has been removed from this version of the judgment to comply with the statutes. Suppression order in respect of identity of child victims.

Judgment

1. In 1986 and 1987 Stephen Brown, the offender, was employed as a youth worker at a community centre in the Wollongong area. During that period he committed sexual offences against a number of young boys. Two of the boys, AL and FE, complained at the time. In October 1990, Brown was sentenced for assaulting AL and FE. He received a good behaviour bond and 18 months periodic detention.

2. In July 2017, JD complained to police that he too had been indecently and sexually assaulted by Brown back in 1986. In November 2017 his brother PD also complained he too had been indecently assaulted by Brown.

3. Brown was arrested in January 2018. He spent five days in custody. A search warrant was executed at his home and police found a USB stick containing child abuse material.

4. In August 2018, Brown was committed for back to back trials at Wollongong District Court in mid‑2019 in relation to both JD and PD’s allegations. On 28 June 2019, Brown asked to be re‑arraigned on the JD indictment. He entered guilty pleas to two counts; no further proceedings were directed on another. On 1 July 2019, a fresh indictment with two counts relating to PD was presented. Brown entered guilty pleas to both counts.

5. Brown stands for sentence today for five counts:

1. JD count 1: assault and commit act of indecency s 61E(1) Crimes Act 1900, now repealed.

2. JD count 2 sexual intercourse knowing no consent was given s 61D(1) Crimes Act 1900, now repealed.

3. PD Count 1 and 2: two counts assault & commit act of indecency relating to s 61E(1) of the Crimes Act, as it then was.

4. Possess child abuse material s 91H Crimes Act maximum penalty ten years imprisonment at the relevant time.

6. The matter was listed for sentence on 16 August 2019. On that day I received and heard a Victim Impact Statement which was read by JD and another report provided by PD to which I will later refer. The matter was adjourned until today so that Brown could have an urgent coronary angiogram because he had been suffering chest pains and tachycardia.

AGREED FACTS

7. There are agreed facts before the Court.

JD

8. JD was born in 1970. He would frequently attend the community centre. He had had problems at home and was not staying with his family. He had been drinking and had come to the centre while intoxicated. He was told he could not come in. The offender told him to come and see him the following day.

9. It would appear that the offender invited him on a pretext of participating in a study to come to his home, the study he said involved drinking and performing tasks. Under that pretext JD went to the community centre and then to the offender’s home in Mt St Thomas. They stopped and bought some Southern Comfort on the way.

10. A mattress was set up in the bedroom, there was a video camera; the complainant drank and then performed tasks. He pretended to or did keep result sheets. The complainant recalls being pushed down on the mattress by the offender and having his penis rubbed. He lost consciousness, when he woke he was naked. The offender had removed his clothes. The offender was masturbating the complainant’s penis, the offender did this until the complainant ejaculated: count 1 assault and commit act of indecency.

11. The complainant again lost consciousness and woke to find his penis was being sucked by the offender: count 2 sexual intercourse knowing no consent was given. He woke in the morning to find his clothes neatly stacked beside the bed.

12. The offender asked if he could remember much from the night before and the complainant lied and said he could not and left immediately. He did not tell anyone until he told his wife in 1994 and then he complained to the police.

PD

13. JD’s younger brother PD, was born in 1973. He too had problems at home and would sleep on the streets. He would sometime sleep on the community centre steps. He would frequently get drunk and he would sometimes be supplied by the offender with alcohol.

14. He recalls an occasion in December 1986 he had been drinking, the offender came very close to him and as he backed away the offender rubbed the complainant up and down outside of his pants and on his penis. The offender walked with the complainant to a corner, the complainant tripped over a mat and fell, the offender then pulled his pants down and made the complainant masturbate his, that is the offender’s, penis: count 1 indecent assault. The offender then put his hands down the complainant’s pants and touched the complainant’s bare penis and genitals: count 2 indecent assault. PD told the offender to “piss off” but he recalls other occasions when he would be touched.

Maximum penalties

15. At the time s 61E(1) carried a maximum penalty of four years imprisonment; s 61D seven years imprisonment. I must sentence using those maximums as one guide to the exercise of my sentencing discretion: s 19 Crimes (Sentencing Procedure) Act 1999. Content must be given to the maximum penalties. They provide sentencing measures to be balanced with all other relevant factors.

16. Section 25A(c) Crimes (Sentencing Procedure) Act 1999 applies to these proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence. Sentencing patterns have changed since 1990: penalties for this type of offence are now more severe. The significantly increased penalties that are imposed for crimes committed now reflect the Court’s recognition of both the retributive approach signalled by increases in maximum penalties and the standard non‑parole periods that now apply. They also reflect a greater understanding of the long term psychological consequences for victims and a considered judicial response to change in community attitudes to these crimes: R v MJR (2002) 54 NSWLR 368 at [57].

17. I am required to comply with s 25AA but I must take guidance from the maximum penalties that applied then not now. Section 25AA does not alter this fundamental common law principle.

18. Accordingly, I must first determine the facts now available to the Court, have regard to the maximum penalty in force as a guide, identify where within the range of offending conduct covered by the offence charged falls and fix the term of the sentence and determine whether special circumstances can be found.

Objective seriousness

19. When a criminal act involves either indecent touching or sexual intercourse with a child there is no rigid hierarchy distinguishing different types of acts. The Court must have regard to the actual character of the act, the degree of physical contact involved, the age of the child, the age difference between the perpetrator and the child, the relationship between the perpetrator and the child, the time over which the acts occurred, wherein and what circumstances the offence occurred, whether any harm, hurt, physical, psychological or injury resulted and the extent of that harm or injury, the number of acts and whether there was any escalation in the intrusiveness of the activities.

Assessment of seriousness

JD

20. JD was 16 years old. He was vulnerable and he had problems at home and the offender knew that he was abusing alcohol when too young to appreciate the full consequences of that action. There was some planning and premeditation under the pretence of the university study. He was isolated and the offender got him drunk. The use of the video and the pretence against a vulnerable young boy is a significant feature. But it was the preliminary indecent assault and then the act of oral sex when he was in no capacity to offer any resistance whatsoever.

21. The offender took advantage of the fact that he had given a young man alcohol and obtained his agreement to attend the premises because of his position as a social worker, both were particularly serious offences.

PD

22. PD was only 13 years old. Two acts involving genital contact including being forced to masturbate the offender himself. His youth, vulnerability, his homelessness, his disadvantaged position was taken advantage of and the offender exploited his role as a social worker. Obviously anyone who is a social worker in a community centre has an obligation to care for those who attend the centre not abuse them.

Possess child abuse material s 91H

23. So far as the child abuse material offence is concerned there is a useful guide in Minehan [2010] NSWCCA 140. In this matter the actual children were used in the creation of the material. There appear to be a relatively small number but different children were depicted. The material was for his own use. There is no apparent proximity between his activities and those responsible for bringing the material into existence. There was no sophistication in the offending and he acted alone.

24. As Simpson J said in R v Booth [2009] NSWCCA 89, at [40]–[44], “it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world.”

25. It is also noted that by the Courts that what makes the crime callous is not just that it exploits and abuses children; it is callous because every time the material is used the offender is reminded of and confronted with the obvious pictorial evidence of exploitation and the degradation it causes.

26. Here, in a folder were a number of photographs of male children without clothes, some of whom with erect penises exposed, but there were a relatively small number of images.

Victim Impact Statements

27. I have received and considered the two victim impact statements that were before the Court. In his Victim Impact Statement JD spoke of the considerable impact of these offences on him. It is hard, given the time that has elapsed since the commission of these offences and the history, that he was vulnerable prior to the commission of these offences, to accurately gauge the extent to which the offender’s criminal activities interfered with his life. But it is clear from the suffering spoken of by both young men that these matters had an impact on them and that that impact has continued until this day.

28. Courts are now more aware than they were at the time that misperceptions and stereotyping can remain problematic for boys who were subject to abuse such as this. The studies that were before the recent Royal Commission and the experience of the Court indicate that in both young boys’, now men’s, experience, they because of the actions of this offender, questioned their own sexuality and their own worth. The impact was both short and long term, it is an entirely understandable reaction to the maltreatment that they suffered and the emotional harm that they have suffered is appreciated and must be taken into account.

29. It is all too tragically common in these matters that such reactions are found. Because where a child, particularly a male child, is engaged in such behaviour guilt is felt and that is only one small step in an immature mind from which an immature mind might formulate an idea that somehow it is their fault or they themselves are bad and hiding from the consequent shame can have a significant impact as occurred here.

30. Abuse in a youth group setting is institutionalised child sexual abuse and it would appear that this perpetrator has engaged in, at least from the material available at the time, in some stylised form of abuse

31. There are two incidents in relation to each child. So far as each child is concerned the penalties can comprehend the other but there is a need to accumulate, at least partially, to acknowledge the harm done to both victims. There can be no suggestion that multiple offending will be punished in the same way as single offences or one or two offences. The aggregate sentence I intent to impose must still be just and appropriate to the total offending.

Subjective case for the offender

32. The subjective case for the offender is set out in the report of Dr Sen, his longstanding GP, and Dr Henderson, a Forensic Psychologist, who was also examined today: exhibit 2.

33. Brown is now 64. The only offending since he was before the Courts in 1990 is the child abuse material matter. It does him no credit but he is to have to the benefit of that period crime free.

34. Dr Henderson sets out his developmental history including a history that he himself was abused as a child. He is not a well man. The exhibits before the Court indicate he suffered a traumatic motor vehicle accident many years ago. He has not worked for many years. He has been on a disability support pension for many years. He is obese. He has multiple medical conditions including hypertension, sleep apnoea, osteoarthritis, tachycardia, diabetes, chronic kidney disease. He is receiving treatment and medication for a number of these conditions. He is seeing a psychiatrist and has suffered severe anxiety and depression, not surprising given he is now nearly 30 years after the event facing a term of imprisonment.

35. Dr Sen speaks of the man who gets on well with everyone in the community. He described him as a perfect gentleman and patient.

36. Dr Henderson notes his prior history. He concludes that applying both static and dynamic actuarial tests and his own clinical opinion that he is at a low risk of reoffending and that the impact of custody on him will be severe. It indicates he would be unlikely to benefit from sex offender programs.

37. The recent cardiology results are a concern. There is no evidence of heart failure but there is evidence of heart disease.

Delay between offence and sentencing

38. Sentencing for a stale crime long after committing the offence calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517, at [519]; R v Gannon (unrep, 19/8/84, NSWCCA), at [3].

39. Substantial delay can operate to the offender’s advantage because it provides the offender an opportunity of establishing a new life and demonstrating rehabilitation. There is, of course, as Mr Crown points out a need to be guarded about that conclusion given the 91H(2) offence. It is of some importance that he has not offended again in a physical way against a child.

Ill health

40. While offenders cannot escape punishment because of the condition of their health ill‑health is a factor that can mitigate. It is clear from all the medical material that imprisonment will be a greater burden on this offender and I will have copies of his medical reports and Dr Davidson’s report sent with the warrant. He will be at risk in custody because of his health but I am confident that Justice Health will be able to manage his conditions. That said the realities of prison life should not be overlooked: R v Burrell (2000) 114 A Crim R 207. Serious physical disabilities will render imprisonment more burdensome to this offender than the average prisoner. It is also a reason for finding special circumstances: R v Sellen (1991) 57 A Crim R 313.

41. Care needs to be taken not to double count mitigating factors and ill‑health does not mean that a sentence should be less than would otherwise be imposed.

42. Brown’s mental health will, I am sure, suffer while he is in custody. His background requires sympathetic consideration. While not every victim of sexual abuse as a child goes on to repeat that pattern it is often a sad but tragic consequence that abuse is repeated across generations. But on the other hand the offender himself realised the consequences of that behaviour on him and offended against these children.

43. He will require some treatment that could best be, as Dr Henderson notes at [11.5] “would benefit from participation in a group-based sex offender treatment program in order to confront his denial, establish victim empathy and improve self-regulation and stress management.” He will need assistance in adjusting to normal community life.

44. I am indebted to Mr Khan, counsel for the offender and Mr Scully for the Director of Public Prosecutions for their submissions. I have in a sense tried to dot point their comprehensive submissions and the material that was before me. I have given what was put before me careful consideration.

Synthesis

45. There must be a custodial penalty in relation to each of the matters because every act that involves the sexual exploitation of a child is a serious crime. The absolute prohibition on sexual activity with children has to be understood. That prohibition is intended to protect children from the physical and psychological harm that can be caused by premature sexual activity. A reading of the victim impact statements here illustrates that very point. I must give effect to the basic principles of sentencing law. Penalties cannot be more severe than is justified by the maximum penalty and the objective seriousness of the offence. Two young men here did not expect what was to occur to them and courts must act with the ultimate aim of protecting children from exploitation.

46. The plea in relation to the child abuse material came in the Local Court, the otherwise appropriate penalty will be reduced by 25% to give effect to that early plea. The guilty pleas in the other matters came very late. I will allow a reduction of 10% in the otherwise appropriate penalty because the pleas did avoid the necessity of having a trial, empanelling a jury and importantly of having the two young men’s versions of events tested. I will try and attempt to not erode the benefit of those pleas by the process of accumulation.

Orders

47. The sentences will start from 29 September 2019. I indicate the following sentences

1. JD count 1 assault and commit act of indecency s 61E(1): I indicate a sentence of one year and one month

2. JD count 2 sexual intercourse knowing no consent was given s 61D(1): I indicate a sentence of two years and eight months.

3. PD Count 1 assault & commit act of indecency s 61E(1): I indicate a sentence of one year six months.

4. PD Count 1 assault & commit act of indecency s 61E(1): I indicate a sentence of nine months.

5. Possess child abuse material s 91H: I indicate a sentence of nine months.

48. There will be an aggregate sentence in this matter of three years and six months which will commence on 29 September 2019. There will be a non‑parole period of one year and ten months and a parole period of one year and eight months reflecting a significant finding of special circumstances for the matters I have set out above. The non‑parole period will commence on 29 September 2019 and he will be eligible for consideration for release to parole on 28 July 2021.

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Decision last updated: 09 March 2020