R v Brown (No 2)
[2020] ACTSC 255
•31 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brown (No 2) |
Citation: | [2020] ACTSC 255 |
Hearing Date: | 24 August 2020 |
DecisionDate: | 31 August 2020 |
Before: | Burns J |
Decision: | See [58]–[59] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – student-teacher relationship – where offender already served term of imprisonment in New South Wales in relation to same victim – significant childhood trauma – consideration of connection between psychological condition and offending – excellent prospects for rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 67(1)(h) |
Cases Cited: | R v Brown [2020] ACTSC 156 |
Parties: | The Queen (Crown) Lee Brown (Offender) |
Representation: | Counsel S Janackovic (Crown) C Harris (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offender) | |
File Number: | SCC 325 of 2019 |
BURNS J:
Lee Brown, on 15 June 2019 you entered a plea of guilty to one charge of engaging in sexual intercourse without consent (CAN 1642/2019), contrary to
s 54 of the Crimes Act 1900 (ACT) (the Crimes Act). This offence carries a maximum penalty of 12 years' imprisonment.
You were originally charged by way of summons in the ACT Magistrates Court, with three charges of engaging in sexual intercourse without consent and one charge of committing an act of indecency without consent. You were committed for trial on all
four charges on 3 December 2019. The Crown filed an indictment dated
18 December 2019 containing four counts, identical to the four charges on which you were committed for trial.
An application to lead tendency evidence by the Crown was foreshadowed. Negotiations took place between your lawyers and the Office of the ACT Director of Public Prosecutions, which culminated in you appearing before me on 15 June 2020 and entering a plea of guilty to Count 2 on the indictment of 18 December 2019, a charge of engaging in sexual intercourse without consent. The Crown accepted that plea of guilty in satisfaction of the indictment.
It was noted that there was a dispute regarding the facts alleged by the Crown. The Crown alleged that you digitally penetrated the vagina of the complainant as well as engaging in cunnilingus with her. You disputed the allegation of digital penetration.
After hearing evidence, I concluded that I could not be satisfied beyond reasonable doubt that a digital penetration had occurred: [2020] ACTSC 156. I therefore proceeded to sentence you on the basis that the act of sexual intercourse for which you are to be sentenced consists of you licking the vaginal area of the complainant.
Your plea of guilty was not entered at the earliest opportunity, but it was entered prior to the Criminal Case Conference and prior to any pre-trial application, including the application to lead tendency evidence. It is also important to note that your plea of guilty was to a single charge only, with the Crown not proceeding on the remaining
three charges. I also take into account that you were successful in challenging significant aspects of the facts alleged by the Crown.
I am satisfied that your plea of guilty, although not early, still had significant utilitarian value. I will reduce by approximately 15 per cent the sentence that I would otherwise have imposed because of your plea.
Background
Before I refer to the facts, it is appropriate to briefly set out the history of your relationship with the complainant. At the time of this offence, you were a teacher at Yass High School and the complainant was one of your students. You met the complainant in 2002 when she was a student in Year 7 at that school. You were her English and Drama teacher throughout the period from 2002 to 2007.
In January 2007 the complainant was, as I understand it, entering Year 12. At that time, she was 16, nearly 17 years old. You were 47 years old. From 2007 to 2009, you and the complainant had a sexual relationship which continued after she graduated from high school and relocated to another regional centre to attend university.
This relationship ceased around the beginning of 2009. The act of sexual intercourse which forms the present charge was the first sexual act between you and the complainant. Further sexual acts between you and the complainant occurred in
New South Wales.
In May 2013, the complainant reported these matters to the New South Wales police and on 10 August 2017 you participated in a taped Record of Interview with police in that state. This resulted in you being charged in New South Wales with one charge of aggravated indecent assault, three charges of aggravated acts of indecency,
one charge of sexual intercourse with a person under special care and one charge of using a carriage service to offend.
You entered pleas of guilty to those charges and on 25 May 2018 you were sentenced to 13 months’ imprisonment on the charge of sexual intercourse with a person under special care, with a non-parole period of three months. The charge of using a carriage service to offend was dismissed unconditionally. With respect to the remaining charges, you were placed on Good Behaviour Orders for a period of two years.
I understand that you served a term of full-time imprisonment from 25 May 2018 to
24 August 2018. You served that term of imprisonment at Silverwater Gaol in protective custody, spending an average of 22 hours a day in your cell.
I will note for completeness that the tendency application by the Crown in the present prosecution sought to lead evidence of the sexual activity in which you and the complainant engaged in New South Wales for the purpose of establishing that you had a sexual interest in the complainant and a tendency to act upon that sexual interest at the relevant time. I doubt that either of those matters was ever seriously in issue in the present proceeding.
The facts
On 20 August 2018, you participated in a Record of Interview with members of the Australian Federal Police in which you made admissions to the conduct to which you have pleaded guilty.
In mid-January 2007, the complainant and a female friend of hers met you at a shopping centre in Canberra. You drove them back to your then-home in the ACT, which you shared with your then-partner and your two children. As it was getting late, it was decided that the complainant and her friend would stay overnight in the shed of your backyard.
That evening, the complainant, her friend and you went to the shed. There was a mattress on the floor. The three of you were talking, but eventually the complainant's friend fell asleep on the mattress while you and the complainant continued to talk.
You began to kiss the complainant on the mouth. She returned that kiss. The complainant ended up in a position where she was straddling you and you continued to kiss. You placed your hand into the complainant's pants and her underwear and touched her around the genital area. You then had a further conversation. A short time later kissing recommenced and you then performed oral sex on the complainant for a couple of minutes. The Statement of Facts records that the complainant was uncomfortable and embarrassed and wanted to stop, but she also wanted you to be pleased with her. Shortly thereafter, sexual contact ceased and you went back to the house and the complainant went to sleep on the mattress beside her friend.
The Statement of Facts states that the complainant's consent or ostensible consent to this sexual activity was negated pursuant to s 67(1)(h) of the Crimes Act by your abuse of your position of trust, as the complainant's teacher.
Victim Impact Statement
In a Victim Impact Statement dated 24 August 2020, the complainant states that the sexual abuse that she experienced in January 2007 has affected her life in many ways. She says that she felt violated and intimidated by what you did and that you were a person that she trusted.
This was, she said, her first sexual experience. She withdrew from her friends and family and felt ashamed. She carried that shame with her for many years, feeling that she could not trust anyone again. The thought of sex horrified her.
She was subsequently diagnosed with Post Traumatic Stress Disorder (PTSD), brought on by your sexual abuse. The complainant stated that it has taken many years of psychological treatment for her to overcome her shame and accept that she was not responsible for what occurred.
It is clear that your sexual relationship with the complainant during the period that you were her teacher, including the conduct in the shed, had a continuing detrimental effect on the complainant. I think, however, that it would be artificial to attempt to isolate the detrimental effect caused by the present offence from that caused by the continuing sexual relationship in New South Wales, for which you were sentenced in 2018.
It is nevertheless clear that the present offence is a serious criminal offence involving the abuse by you of your position of trust as the complainant's teacher. In assessing the objective seriousness of the offence, I also take into account the significant difference in age between yourself and the complainant, which added to the power imbalance between you.
I am not persuaded that your conduct was predatory, in the sense that you engineered the meeting with the complainant in mid-January 2007 for the purpose of luring her back to your home for the purpose of engaging in sex. The fact that your partner and two children were present at the house at that time and that the complainant was accompanied by another female friend makes that suggestion unlikely.
I am prepared to accept that this initial sexual activity between yourself and the complainant was spontaneous and not the subject of any lengthy planning or preparation. In that regard, this offence may perhaps be contrasted with the subsequent offending in New South Wales.
Subjective features
Apart from a minor unrelated matter in 1982, you have no prior criminal history, other than the matters for which you were sentenced in 2018. The offences for which you were sentenced in 2018 post-dated the present offence, but they are relevant as demonstrating that the present offence was not an isolated incident.
I will disregard the previous unrelated matter for the purposes of sentencing. Any leniency which would ordinarily be shown to you because of your prior good character must be tempered by the fact that it was only because you were a person of good character that you were able to be employed as a teacher and as such, to engage in the present offence with the complainant.
A Pre-Sentence Report was prepared for the sentence hearing. You are currently
61 years old. You were born in Queensland, as one of five children. You experienced ongoing sexual abuse, [redacted] as well as physical and verbal abuse. [Redacted].
Your father died in 2006 and your mother died in 2011. One of your brothers died in 2006 and you have no contact with your other brother or one of your sisters. You reported regular contact with one sister who resides in Western Australia. You grew up in poverty and often moved for your father's work needs. You were bullied at school for not having the correct uniform or school supplies.
You married in 1988 and that relationship produced two children who are now aged
31 and 28 years. You reported an amicable relationship with your ex-husband and regular contact with your children. You entered another relationship which produced a child who is now 14 years old who resides with their biological mother. You have been in a relationship with your current partner for the past eight years and you describe the relationship as positive.
After completing Year 12, you attended university and completed a Bachelor of Arts and a Diploma of Education. You worked as a teacher from 1985 until 2010 with periods of absence to raise your children. You left teaching when your offending with the complainant came to light.
After you left teaching, you worked as a correctional officer at a correctional facility for seven years. You left that position in 2018 because of the New South Wales prosecution. After release from prison in New South Wales, you have worked intermittently.
You have pro-social friends and your partner provides emotional support. There are no alcohol or drug issues that need to be addressed.
You reported a history of anxiety and depression which has affected you to varying degrees throughout your adult life. You engaged in therapy with a psychologist between 2017 and 2020, but you had to cease attending as you could not afford to continue to pay for the sessions while you were no longer working. You advised that you are prescribed medication by your General Practitioner to manage your
mental health and you would like to recommence counselling.
Records available to the author of the Pre-Sentence Report indicate that you were formally assessed by a psychologist in 2018 and again in August 2020. You were formally diagnosed with PTSD and Persistent Depressive Disorder, with recommendations made for intensive ongoing treatment with a suitably qualified and experienced practitioner.
You told the author of the Report that you have reflected on your own history of being a victim of sexual abuse and how that had affected your perception of appropriate relationships. You stated that you ultimately knew that you were doing the wrong thing in your relationship with the complainant and that you had abused your position of trust.
You were assessed as medium to low risk of general re-offending, with your primary risk factors being mental health issues and unemployment. You were assessed as suitable for a Community Service work condition.
A report dated 22 May 2018 from John Corcoran, a clinical psychologist, which was tendered on your behalf at the sentence hearing, confirms that you consulted him for
a series of one-hour appointments on multiple occasions between August 2017 and May 2018. You attended for assistance in managing anxiety and stress consequent to being charged with the New South Wales offences. You reported not being able to sleep, feeling anxious and stressed and that you were not coping very well. You told Mr Corcoran that you “wanted a clearer understanding of [your] past behaviour [and] to come to terms with what [you] had done”. Mr Corcoran stated that you reported feelings of shame for your actions and you were concerned about the response of family and friends when they heard about what you had done. You also expressed concern for the victim.
Mr Corcoran noted that you reported a significant history of sexual abuse by a number of perpetrators, [redacted]. He stated, however, that at no time did you suggest that these experiences reduced your culpability in relation to your offending. Instead, he said that you were quite fixated on the intense shame that you felt in perpetrating the offences and expressed regret at your behaviour and concern at the impact of your behaviour on the victim.
A report dated 17 August 2020 from Dr Danielle Clout, a clinical psychologist, was tendered on your behalf at the sentence hearing. She sets out a history of significant neglect and abuse in your childhood, including sexual abuse [redacted]. This resulted in you suffering what you described as a mental breakdown when you were about
13 years old, resulting in you missing about six months of school. This abuse mostly ceased when you left school to attend university when you were 18 years old.
Dr Clout stated that this abuse had had a significant impact upon you, including feelings of shame, self-consciousness, anxiety, depression, relationship and intimacy difficulties and engagement in a range of risky and self-damaging behaviours.
Dr Clout noted that in 2018 you had expressed significant remorse, shame and guilt for your offending behaviour, particularly as you had personally experienced
sexual offending. You reported concerns with regard to the victim.
Dr Clout stated that the trauma caused by experience of child abuse and neglect has serious effects on the developing brain, with chronic abuse and neglect occurring over different developmental periods having a profound and exponential impact on an individual's life.
Unsurprisingly, Dr Clout said, these experiences have had a significant impact on your emotional and behavioural functioning, interpersonal relationships, sexuality and boundaries. You also suffer from significant long-term mental health concerns.
It was Dr Clout's opinion that you are suffering from symptoms consistent with diagnoses of PTSD and Persistent Depressive Disorder. It is likely that your PTSD will continue for the long-term and will require intensive and long-term
psychological treatment. You are unlikely to experience full remission of your
Persistent Depressive Disorder in the short-term.
Based upon the history provided to her, it was Dr Clout's opinion that at the time of this offending you were suffering from symptoms consistent with those diagnoses of PTSD and Persistent Depressive Disorder.
Dr Clout considered it likely that your Persistent Depressive Disorder contributed to your offending behaviour. She also noted your longstanding diagnosis of PTSD, which is also associated with persistent negative affect, and reckless and self-destructive behaviours.
Dr Clout believed that you have experienced significant remorse, shame and guilt for your offending behaviour. You have also accepted responsibility for your actions and have demonstrated significant insight into your offending behaviour.
Dr Clout believed that a term of full-time imprisonment would likely be more onerous for you than a person who does not suffer from your psychological conditions. She also believed that imprisonment was likely to have a significant adverse impact on your psychological condition.
I accept the evidence which was presented by means of the reports from Dr Clout and Mr Corcoran. As a consequence, I am satisfied that some moderation of your moral responsibility is warranted due to your mental health at the time of the commission of this offence and also at the present time. I accept that further full-time imprisonment is likely to adversely impact your mental health.
I take into account the content of the various testimonials that were tendered on your behalf. I also take into account the fact that you have a strong and ongoing relationship which is very supportive. I accept that you have excellent prospects for rehabilitation.
I am satisfied that you are unlikely to reoffend and as such, I am satisfied that specific deterrence is not of significance in sentencing you with respect to the present matter. I must, however, accept that general deterrence is important, as is public denunciation of your conduct.
The principle of totality is raised by the circumstance that you were sentenced for related offending in New South Wales in 2018. If I had come to sentence you for the present offence in 2018, I would have crafted an aggregate sentence that reflected the totality of your offending by making part of the sentence I imposed concurrent with the New South Wales sentences and part cumulative.
That is no longer possible. Not only have you served the three months' full-time imprisonment to which you were liable before parole, you have now completed the parole period and the Good Behaviour Orders have now expired. The appropriate course is to reduce the head sentence somewhat to reflect the fact that the sentence I now impose is entirely accumulated upon the New South Wales sentences.
While a further two or three months of full-time imprisonment would have been appropriate if all matters had been heard together, that is no longer appropriate in light of the period of time that has passed since the New South Wales sentences were imposed.
In order to increase the punitive effect of the sentence I intend to impose, I will impose a Community Service Order as part of a suspended sentence of imprisonment.
Sentence
I will convict you of the offence (CAN 1642/19) and you will be sentenced to
12 months' imprisonment, which will commence today, 31 August 2020, and expire on 30 August 2021.
That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of 12 months commencing today, 31 August 2020, with the following conditions
· First, you are to accept the supervision of the Director-General of Corrective Services or that person's delegate for that period of 12 months or such lesser period as deemed appropriate by your supervising officer;
· Second, you are to undertake such assessments, counselling or treatment as directed by the Director-General of Corrective Services or that person's delegate; and
· Third, you are to complete 200 hours of community service within 12 months, as directed by officers of ACT Corrective Services.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |