R v Brown (No 3)
[2022] ACTSC 180
•20 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brown (No 3) |
Citation: | [2022] ACTSC 180 |
Hearing Dates: | 15 October 2021, 25 February 2022, 18 July 2022 |
DecisionDate: | 20 July 2022 |
Before: | Elkaim J |
Decision: | (i) The conviction is confirmed. (ii) For the offence of engaging in a sexual relationship with a young person the offender is sentenced to a term of imprisonment of two years six months and 14 days to commence today and end on 2 February 2025. (iii) I set a non-parole period of 17 months to commence today and end on 19 December 2023. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – engaging in a sexual relationship with a young person – mental impairment – Verdins principles – whether an Intensive Corrections Order is appropriate – whether a term of imprisonment is suitable – conviction confirmed – term of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 55A, 56 Crimes (Sentencing) Act 2005 (ACT) ss 6,7, 10, 33 Corrections Management Act 2007 (ACT) s 53 |
Cases Cited: | Meissner v Queen (1995) 184 CLR 132 R v Brown [2021] ACTSC 274 R v Whittaker [2021] ACTSC 189 |
Parties: | The Queen (Crown) John Ronald Brown (Offender) |
Representation: | Counsel T Hickey and A Williamson (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender) | |
File Numbers: | SCC 84 of 2021 |
ELKAIM J:
On 25 August 2021 the offender pleaded guilty to one count, in an indictment dated 4 May 2021, of engaging in a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) (SCCAN2021/65). The maximum penalty is 25 years’ imprisonment.
This matter originally came before me on 15 October 2021. The offender sought an adjournment which was opposed by the Crown. I granted the adjournment for the reasons that are set out in a separate decision (R v Brown [2021] ACTSC 274).
The matter came before me again on 25 February 2022 (R v Brown (No 2) [2022] ACTSC 179). By that date the Crown had gathered some further evidence, a pre-sentence report had been prepared and the offender had obtained further medical evidence.
The facts behind the offending are set out in detail in the Agreed Statement of Facts. The following is a summary. The offensive relationship occurred over a period of about six weeks stretching from late December 2019 to early February 2020. The victim was 15 years old, but had only just reached this age.
The offender was born in 1972. He was therefore about 32 years older than the victim.
The offender’s family and the victim’s family were long-time friends. This was to an extent where the families often took holidays together. The victim and his siblings regarded the offender as “a trusted father figure”. They often communicated by text.
The victim was interested in hairdressing and attended a course in this vocation at school on a weekly basis.
On 29 December 2019 the offender and his wife, and one son, attended the victim’s home for dinner. After dinner the victim gave the offender a haircut. The offender was drinking during the evening and sometimes urinating in the backyard. On one occasion he asked the victim about the latter’s sexual experience and knowledge.
When the offender was leaving he hugged the victim. This was not unusual. However on this occasion the victim dropped a hair clip on the ground. When he went to pick it up the offender exposed his penis in a manner that it was only visible to the victim. The offender said “come on, suck it. Suck it”. The victim said “no”. The offender left soon afterwards.
On 31 December 2019 the victim’s family had a New Year’s Eve party. It was attended by the offender and his wife. Once again the offender urinated in the backyard and on some occasions asked the victim to accompany him. In the early hours of the following day Mrs Brown went home but the offender remained at the victim’s house. Arrangements were made for him to sleep in one of the children’s beds, that child being away.
During the night, after all others had gone to bed, the offender and the victim had a “sexually suggestive conversation”. Part of the conversation occurred in the bedroom where the offender was to sleep. While there the offender rubbed his penis and told the victim to play with it. The victim then did so. He was then told to suck the penis which the victim did. The offender removed his penis from the victim’s mouth before he ejaculated.
At about 4:17am, perhaps consumed with guilt at his appalling conduct, or perhaps worried about the possible consequences, the offender had a text conversation with the victim stating that the conduct should not happen again.
If the offender had been genuinely remorseful the illegal conduct would not have continued. But it did. On 24 January 2020 the offender and his wife and the victim’s parents and two of his siblings embarked on a cruise. On 29 January 2020 the offender was sleeping in a bed next to the victim. Notwithstanding the presence of the victim’s father in a different bed the offender fondled the victim’s buttocks and then his penis. The victim told the offender to stop. He did so.
On 1 February 2020 the victim was having a shower in his cabin’s bathroom. The offender tried to force his way into the bathroom on the pretence of wanting to help the victim wash his clothes. The victim’s father told him to sit down and wait until the victim was finished. In the early hours of the next morning the offender lifted his shorts and stroked his penis within the vision of the victim. This was observed by the victim’s father. He escorted the offender away from the cabin. He told his wife what he had seen. She questioned the victim who agreed that “something sexual was going on between him and the offender”.
The victim’s mother confronted the offender who admitted that he had been “touching” the victim. He endeavoured to blame the victim. The cruise ended on 2 February 2020. In the afternoon the victim’s father reported the events to the police.
It is evident from the above that four distinct sexual acts occurred between the offender and the victim. The most serious is clearly the oral sex performed upon the offender.
The law requires an assessment of the objective seriousness of the offending. It is almost ludicrous to suggest that offending of the type described above is other than very serious. Regrettably however, when compared to other offending of this type it must be regarded as below the midway of objective seriousness. I stress this is not said in mitigation of the offending. It is merely an assessment required by the sentencing procedure. A significant element in my assessment, which would otherwise perhaps have been lower, is the absolute breach of trust that was involved in the offending.
If there is any doubt about the seriousness of the offending, it should be put to rest by the victim impact statements.
The victim says that the trust he had in the offender has been broken and this has had an impact on him and his family. In addition his relationship with his father has been affected. The bond between them “has changed tremendously, and I wish I could have the old “father & son” relationship back”. He says that he is constantly concerned that he will come across the offender or his family at a local shopping centre or in his workplace. He says that “[b]eing taken advantage of has and will be the worst thing that has happened to me, especially because it was by someone who was so close to us”.
The victim’s father correctly says that the offender’s conduct is:
…in-excusable, irreversible, and un-forgivable and our story is one of distress, suffering, pain, outrage, sadness, loss, and anger but also one of perseverance, determination, commitment, and comfort in pursuing what’s right and have the offender held accountable for his actions.
The victim’s father says that the whole family has been affected. They have had to endure “the mental anguish and torment that comes along with it”. They have lost mutual friendships and relationships within the family have suffered.
The victim’s mother describes the event as “a parent’s WORST NIGHTMARE”. She despairs at the loss of trust and the loss of friendships. She says the hate and sense of betrayal that she feels has affected her mental health and she even has difficulties contemplating the future. The family is breaking up. She says:
I feel that I can’t stay here anymore. I also realise the loss that I will have leaving all my family and friends will be tremendous but have acknowledged that our family needs a new beginning as there are too many painful memories here.
The victim has two sisters. One of them stated:
Knowing that my little brother was unfortunately the main victim of this crime absolutely outrages and crushes me. I feel as though if the offender didn’t succeed in making us all believe that he was such a perfect person, we would have seen what was happening a lot clearer but because of the endless love and trust we had in the offender, this was the last thing we would have ever expected from him…
I now suffer from depression. I have had many sleepless nights just bawling my eyes out, I will be driving and just burst out into tears, I have randomly cried many times in just a casual conversation with people, this event has and never will leave me, it is forever on my mind no matter what I am doing…
The offender’s eldest son was my best friend for years and coming to terms with the fact I will probably never speak to him again kills me, especially because the falling out wasn’t caused by us ourselves, it was caused by the offender’s immature, selfish, disgusting criminal actions…
…The offender and this offence have broken me and my family in every aspect past, present and future.
The victim’s other sister has also provided a statement. She says:
Over the period of two years, I have watched my family crumble. We have all changed, we have all suffered. We have all become so overprotective, both second guessing and questioning the safety of my brother, constantly worrying if we should trust the same way we once had.
The statement describes the changes that the victim’s sister has seen in him. For example, she says:
He is very closed off to some topics, resulting in a really short temper. I find he gets annoyed and aggravated a lot easier than he once did. I can tell he tries to stay strong for the sake of his own family, but I can also see how much this has affected him, and the stress he now holds because of it…
…The truth it (sic) a 40+ year old man took advantage of a 15-year-old boy, manipulating him into thinking this is normal. No number of excuses can justify what took place, nor ever make it okay. This has already haunted my family for two years, and I guarantee there are many more to come.
The victim impact statements overwhelmingly demonstrate that in crimes of this sort there is very rarely a single victim. The child who has been assaulted is often the member of a loving family. The assault is felt by each member of the family and will be for many years. In this case it is exacerbated, as stressed in some of the victim impact statements, by the destruction of the formerly close relationship between the two families.
Turning now to the offender’s subjective history.
The offender was born in Sydney. He has no siblings. He is of Indigenous heritage. He has a good relationship with his parents and is now caring for them as they have serious health issues. This is confirmed in a statutory declaration from his father in which he states that he and his wife require daily assistance for their respective conditions and that this assistance is provided by the offender.
The offender joined the public service in New South Wales, mostly in IT. After 25 years in the public service the offender started his own business as a contractor to the public service, and later to a travel agency.
The offender married in 1996. He has four children now stretching in age from 21 to 25. Since his early 20s the offender has been abusing alcohol. When the offending occurred he was drinking up to 30 beers every night. The alcohol abuse may be responsible for memory impairment.
In 2002 the offender was involved in a motor vehicle accident in which he suffered a head injury. He was later diagnosed with Post Traumatic Stress Disorder and with a Major Depressive Disorder. He was prescribed anti-depressant medication which he still takes. In more recent times, after admitting to the offence, the offender was admitted to The Canberra Hospital having had suicidal ideation. The same history was given at a second admission in May 2021 when he was admitted to the hospital with chest pain. A cardiac event was excluded.
Part of the further medical evidence obtained by the offender was a report from a Prof Boer, a psychologist, who provided a second report (dated 13 February 2022) to supplement his original report dated 29 September 2021.
The supplementary report contains this paragraph:
On balance, at the time of the offending behaviour, it is my opinion that Mr Brown was suffering from a mental impairment, under the meaning set out in Section 27 of the ACT Criminal Code 2002, with this mental impairment being a mental illness, namely Major Depressive Disorder and Alcohol Use Disorder, the combination of which had the effect that Mr Brown did not know that his conduct in relation to his offending behaviour at the time of the offences was wrong, as he could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong at the time of the offences; and furthermore that Mr Brown could not control his conduct in relation to his offending behaviour at the time of the offences.
Also relevant to this paragraph is the result of an MRI brain scan, performed on 10 February 2022, which states the following:
Mild increased thalamic signal as described? Wernicke’s encephalopathy.
The condition referred to in the previous paragraph is also referred to by Dr Shah, the offender’s general practitioner in his report of 18 January 2022. Notably Dr Shah says:
He also has reported worsening memory- especially short-term memory, impaired focus and confusion- which can interrelate between his depression and wenicke (sic) korsakoff syndrome due to past history of alcohol use.
I raised Prof Boer’s report with the parties at the commencement of the hearing on 25 February because of my concern that the plea of guilty was inconsistent with the doctor’s opinion as set out above. The Crown said it had understood that the above opinion was not to be relied upon, although the balance of the doctor’s opinion would still be placed in evidence. Mr Purnell SC swiftly disavowed the Crown of that understanding and said that Prof Boer’s opinion remained a central plank of his submissions but was only relevant to the application of the Verdins principles (derived from R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 240).
Mr Purnell SC pointed out that he could not rely on the defence of mental impairment because the alcohol that had been consumed at the time was voluntarily self-administered and therefore s 33 of the Criminal Code 2002 (ACT) (Criminal Code) intervened to prevent the defence being raised. I understand the point, but I am not sure that I agree with it. If the offender was acting while suffering from a mental impairment, and because of that impairment, and if that impairment was in turn consequent upon an alcohol disuse disorder, then I am not convinced that s 33 plays any part.
I indicated that I was not comfortable with that approach. However I also indicated that this passage from Meissner v Queen (1995) 184 CLR 132 at 141, might be applicable:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
The offender pleaded guilty on 25 August 2021. It seemed to me that if he was of “sound mind and understanding” on that date then I would be bound to accept his plea. I therefore suggested that Prof Boer be asked whether his opinion about the mental impairment suffered by the offender at the time of the offences still existed when he entered the plea. There may well be a distinction between whether or not a person suffers from a mental impairment compared to being of sound mind but nevertheless there is likely to be some overlap.
I was also mindful of Dr Shah’s opinion as to his continuing mental condition as recently as January of this year.
Mr Purnell SC was happy for the question to be put to Prof Boer but the Crown was not. The Crown was concerned that whatever was said by Prof Boer, the possibility of the plea not being accepted remained at large. Accordingly the Crown wished to obtain its own medical evidence and sought an adjournment.
With some reluctance, but provoked by the late service of the offender’s medical material, I allowed the adjournment.
During the adjournment the Crown obtained a report from a forensic psychiatrist, Prof Greenberg. Prof Greenberg has a different opinion, on some issues, to Prof Boer. Prof Greenberg does not think that there was a mental impairment under the Criminal Code. He said that he was of the view that:
…Mr Brown could reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong.
(emphasis in original)
Prof Greenberg went on to say:
I am of the opinion there was no direct causal relationship between an individual having depressive and anxiety symptoms and him having sexual relations with a child. Having depression or anxiety per se will not cause an adult individual to commit sex acts with a boy. Likewise, there was no direct causal relationship between alcohol intoxication and him having sexual relationships with a-15-year-old (sic) male child. Likewise, the combination of these associative factors would not cause sexual offending.
Professor Greenberg did however find the existence of an alcohol use disorder and he said:
I’m of the opinion that his alcohol intoxication played a significant role as a disinhibiting factor [in] his offending behaviour. Obviously, there are a multitude of other associational/risk factors, such as spending large amounts of time with the teenage child, opportunity, possible sexual difficulties with his wife, many of which are address[ed] in the paragraphs below of this psycho-sexual psychiatric report.
Ultimately the issue of the contest between Prof Boer and Prof Greenberg as to whether or not the offender was suffering a mental impairment (within the bounds of the Criminal Code) was resolved by Prof Boer’s evidence. He conceded that a diagnosis of the relevant mental impairment could not be made absent verification of the offender’s medical condition by neurological opinion and neuropsychiatric testing. This concession in turn led to a concession on behalf of the offender that the offender could not rely on the diagnosis in support of his submissions.
It was stressed however, that the concession did not extinguish the offender’s reliance on the Verdins principles to mitigate his sentence. The offender maintained that there was still evidence of impaired mental functioning sufficient to generate a mitigation of the sentence.
The Crown submitted that the evidence of impaired mental functioning was not sufficient to lead to an application of the principles. Further, and I think correctly in this case, the Crown submitted that even if the principles were applied, they needed to be measured against other factors, such as the seriousness of the offences, and would certainly not lead to a degree of mitigation which would enable me to sentence by way of an Intensive Corrections Order (ICO).
The imposition of an ICO was the primary submission made on behalf of the offender.
I accept that an ICO is not a lenient sentence. As stated by Burns J in R v Srna [2018] ACTSC 337 at [13]:
I accept that an intensive corrections order involves a degree of leniency, in that a person sentenced to complete a sentence of imprisonment, by way of intensive corrections order, does not have to serve a term of full time imprisonment. Be that as it may, the legislature has clearly indicated that an intensive corrections order is considered to be a sentence that not only addresses rehabilitation but also is intended to have a deterrent effect upon offenders and is considered to be a significant punishment, coming second only to a term of full-time imprisonment.
However, a man who, amongst other obscene acts, inserts his penis into the mouth of a 15 year old boy, absent circumstances which I cannot presently contemplate, does not leave a court with an ICO. The offending is simply too serious.
I was referred to the decision of Burns J in R v DU (No 4) [2020] ACTSC 174 (DU) as an example of the imposition of an ICO. It was submitted by Mr Purnell SC that this case bore a number of similarities to the present case. In particular he referred to the age difference between the persons involved. In DU the offender was 40 and the victim was 16. In this case the offender was 47 and the victim was 15. That is where the broadest of similarities ends.
There are much greater points of distinction. In DU the offender was charged with engaging in sexual intercourse with the young person under his special care. This is an offence that was specifically designed to cater for the fact that, without more, a complainant at age 16 is able to consent to sexual intercourse. The complainant in DU did consent. However the offence, which is contrary to s 55A of the Crimes Act, is designed to deal with the situation of one person being under the care of another.
The difference in seriousness of the offences in DU is highlighted by the vastly different maximum penalties. The s 55A offence carries a maximum penalty of 10 years’ imprisonment. The offence for which this offender has pleaded guilty has a maximum penalty of 25 years’ imprisonment.
I do not regard DU as providing any guidance at all. I also note that Burns J only made the ICO “after much hesitation”.
Although most of the hearing on 25 February 2022 was occupied by legal discussion, it did include the oral evidence of the victim’s father. The Crown had tendered a statement from the victim’s father, which is part of Exhibit A. He was cross-examined on the statement, mostly to the effect that he and the offender had been good friends and had drunk a lot of alcohol together. He accepted that the actions of the offender, which had been carried out in his presence, were extraordinary.
He agreed that he was angry and upset about the offender’s conduct and wanted him punished. I wondered if there was any decent father of a young boy who had been molested that did not want the perpetrator punished.
The pre-sentence report ordered on 15 October 2021 says the offender is suitable for the making of an ICO. For the reasons that appear both above and below I do not think an ICO can be considered in this matter.
Professor Boer subjected the offender to a range of psychological testing. He concluded that the offender’s depression was severe “with recurrent episodes and anxious distress. Mr Brown suffers from episodic low mood and is reactive to situational stresses. He has been suicidal under periods of extreme stress as already noted”.
Prof Boer also identified an Adjustment Disorder with Anxiety, an Alcohol Use Disorder of moderate severity and PTSD emanating from the motor vehicle accident that had occurred in 2002. Prof Boer noted that the offender had stopped drinking after admitting his abuse to the victim’s parents in February 2020.
Prof Boer was asked: whether you believe any impairment, illness, condition or personality disorder explains Mr Brown’s offending to any extent? He responded:
In my opinion, both Major Depressive Disorder and Alcohol Use Disorder contributed to Mr Brown’s offending, but whether the combination of these disorders “explains” his offending to a significant extent is a matter for the court to decide. In my view, there appears to be a causal relationship between Mr Brown’s mental illnesses (i.e., Major Depressive Disorder and Alcohol Use Disorder) and his offending behaviour. In my view, a person suffering from both of these disorders (i.e., Major Depressive Disorder and Alcohol Use Disorder), will have a diminished ability to think or concentrate as well as impaired decision-making leading to behaviours such as those committed by Mr Brown in his current offences.
Prof Boer appropriately qualifies his view by leaving the ultimate question to the Court. There is no suggestion that any of the sexual acts occurred while the offender was so intoxicated that he did not know what he was doing. He may well have been drinking at the time but there is no evidence that his alcoholic intake impaired or deleted his capacity to know what he was doing.
Further, as observed by the Crown, the offender was at the time apparently running a successful business, subcontracting to a travel agency.
Prof Boer thinks there is a low risk of future sexual offending. He does not think that the offender is a sexual deviant in the sense of having a sexual preference for children. He notes that the offender is keen to engage in treatment and is willing to be supervised, as would occur under an ICO. As I have said, this is the result sought by the offender.
Prof Boer thought that the offender “has demonstrated considerable remorse, both in relation to the child victim and for the offence to which he has pleaded guilty”. The doctor continued:
[h]is post-offence suicidal ideation was largely based on the guilt and remorse he felt (and continues to feel) for his offending against [the] victim and the loss of the friendship with the family as a whole.
Prof Boer thinks the offender “has begun to demonstrate insight into the reasons behind his offending conduct”. He recognises alcohol was a “major contributor”.
The question of the offender’s remorse was placed squarely in issue by the Crown. Prof Boer said that the offender’s blaming of his actions on the conduct of the victim dissipated, in fact disappeared, after he read the victim impact statements. Thereafter, said Prof Boer, he accepted full responsibility without condition.
This analysis is not reflected in the history given to Prof Greenberg, notably after the offender had read the victim impact statements. For example, in giving his account of the offence to Prof Greenberg he said this:
Mr Brown reported when he was at [the victim’s household] towards the end of December 2019, he’d been drinking a lot and would urinate in their backyard. He claimed that [the victim] would come out and try to look at him urinating and also look at his genitals. He stated, “I would turn around and go inside to use the toilet. He would want to come into the toilet as well. He would come in and say, “Oops!” And then walk out. He would look from his sister’s bedroom to see me urinating. If I left the house to go outside to urinate, around 30 seconds after I went out, I’d hear the door open and he’d come outside. I would be urinating. It happened quite regularly. I’d turn around. At that point, I said to him, “go away or I’ll tell your father”. He said, “no you won’t. It will ruin a 25-year relationship”. Mr Brown stated he had trouble remembering “bits of information”. He continued that [the victim] would still attempt to see him urinating and at one stage, [the victim] said, “oh, that’s big” (referring to his penis). Mr Brown claimed that [the victim] sent him a message asking him, “when are you going out to pee”. He stated when he was urinating near the kitchen, [the victim] wouldn’t come out because it was too close to where the family was sitting. He then stated, “I still am wholly responsible. I accept responsibility of all this. I should have spoken to his parents and put a stop to this. I was weak. I dealt with it as best as I could. I didn’t want to ruin the relationship between the two families. I accept I am the adult. I should have taken responsibility”. He stated after he drank alcohol his “memory was going”. He claimed [the victim] sent a text, “I need you to come to the garage to fix the chair”. He stated he went to the garage. He stated [the victim] thought there was a bolt underneath the cabinet and Mr Brown claimed when he bent over to look for the bolt, [the victim] stuck a remote for the air-conditioner into his “backside”. He stated he said to [the victim], “why did you do that” and [the victim] allegedly stated, “you know you like it. I like ass”, but never in earshot of anybody else. Mr Brown stated on another occasion, “…I was walking up the stairs and he did the same thing with his hand. Stuck his hand up my butt cheeks”.
What I think is evident from the above history is a persistent belief on the part of the offender that while he has to take responsibility he is not entirely to blame for what occurred. There is a definite sharing of the blame with the victim.
I do think there is remorse. I do not think it exists to the degree submitted on behalf of the offender.
Another area of conflict arising from the specialists’ reports concerns whether or not the offender had a persistent sexual interest in children or whether the events were effectively a ‘one off’.
Prof Boer concluded that:
There is no evidence suggesting that offending occurred outside of this time. With the current victim or in any other context (or with any other victims), indicating that this period of offending was not indicative of a prolonged interest in having sexual interactions with, or a sexual preference towards children.
This conclusion was strengthened by the following history taken by Prof Boer:
Mr Brown noted that he was [prior to and at the time of the offending] still having sexual intercourse with his wife and that his main sexual attraction was to adult females since he was a youth to the present time. (Report of 29 September 2021 at [410].
Prof Greenberg had a very different history:
Mr Brown reported that he has been impotent for the past three or four years. He has never used any erectile dysfunction medications and stated that he and his wife have not been intimate for several years. (Report of 22 June 2022 at page 16.4).
Prof Greenburg concluded:
[i]n my opinion, although Mr Brown is adamant that he is heterosexual in his orientation and the most likely explanation for his sexual offending is underlying hebophilic (same-sex) tendencies. Based on his history, his main sexual preference is for adult women as there is evidence of him having been married for over 25 years to his wife. The intoxication was likely a disinhibiting associated factor but not a causal factor in his offending. Mr Brown would not qualify for a hebophilic disorder, but likely tendencies, as the activity occurred on at least four occasions but only over a period of approximately one month.
I think the factor that sways me in favour of Prof Greenberg’s opinion is that the offending occurred over a reasonably prolonged period and was constituted by four distinct acts. I should add however that, in terms of sentencing, not much turns on this issue. It might have some relevance to the possibility of future offending although neither expert suggests any significant risk of re-offending.
Another issue that arose as a possible conflict in the respective histories taken by the experts was the amount of alcohol being consumed by the offender at the time of the offending. Prof Greenburg thought there might have been an exaggeration because of inconsistencies in the histories to the doctors, and perhaps other persons, and the absence of objective physical damage that might be expected in a person consuming the large amounts of alcohol suggested by the offender. For example, Prof Greenburg pointed to the absence of liver damage. He conceded however that he was not an expert, in particular he was not a haematologist, and his view was essentially based on his basic medical training.
It is difficult for me to resolve this issue. Prof Greenburg, and the Crown, conceded that the offender was drinking a great deal of alcohol. I do not think the precise quantities are sufficient to have any effect on sentencing.
In relation to serving a full-time custodial sentence Prof Boer said:
In my opinion, it is generally the case that sexual offenders are vulnerable in prison. However, someone who has committed an offence of engaging in a sexual relationship with the child is more vulnerable than the average sex offender. Also, given that Mr Brown has a generally pro-social nature he may be at additional risk for harm or exploitation by other inmates. In addition, Mr Brown has a number of health concerns such as morbid obesity, multiple skin lesions, sleep apnoea, and fatty liver (as noted earlier), medical issues which may be complicated to manage in custody. Further, it is my opinion, that a period of imprisonment would be very detrimental to Mr Brown’s mental health. Being imprisoned would exacerbate his mental health symptoms, including both anxiety (e.g., due to fear of other offenders) and depression (e.g., due to the possible lack of meaningful occupation, the isolation of incarceration and the long periods of inactivity during the average day as well as the occasional prospect of being locked in his cell for time periods of up to several days at a time during lockdowns).
While some of the above factors referred to by Prof Boer are personal to the offender, many of them will attend every offender of similar crimes. A person will not be relieved of a full-time custodial sentence because it will be difficult for him. If that were the case no sexual offenders would be sent to prison, and those already there would demand a release.
In his letter of 22 September 2021, Dr Shah lists the offender’s current medication and says that his sleep apnoea requires nightly use of a CPAP machine.
I note s 53 of the Corrections Management Act 2007 (ACT) specifically requires that “detainees have a standard of health care equivalent to that available to other people in the ACT”.
In a second report, dated 18 January 2022, Dr Shah says that the offender has:
…a complex mental health history with severe anxiety, depression, panic episodes and insomnia. In addition the offender has macular oedema and suggestions of Wernicke-Korsakoff Syndrome. An MRI brain scan, dated 10 February 2022, is consistent with the latter condition.
Wernicke-Korsakoff Syndrome refers to a degenerative brain disorder possibly consequent upon alcohol abuse (see Exhibit 5). The issue of whether or not the offender was suffering from this condition was the subject of disagreement between Prof Boer and Prof Greenberg.
Both specialists agreed that Wernicke-Korsakoff Syndrome should be ultimately diagnosed by a neurologist. The offender has in fact seen a neurologist but a report has not been forthcoming. It is unclear why this is so but I do not think it’s absence can be laid at the hands of the offender.
According to Prof Greenberg the syndrome is generally identified by an initial substantial onset of confusion (the Wernicke element) followed some time later by memory loss (the Korsakoff element). This was not the pattern, said Prof Greenburg, that was evident with the offender. The pattern described by Prof Greenburg is consistent with Exhibit 5.
Ultimately Mr Purnell SC asked me to find that the offender might have Wernicke-Korsakoff Syndrome. Such a finding would be inconsistent with Prof Greenberg’s description of the syndrome. Nevertheless, in the absence of the neurological opinion, I cannot say that the syndrome is not present to one extent or another.
But even if I reached a conclusion that the offender might have the syndrome, the question arises as to what would be the effect of the finding. The Crown referred me to the High Court case of R v Olbrich [1999] HCA 54; 199 CLR 270, at [27]:
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
I do not think a finding of ‘might’ qualifies as proof on the balance of probabilities. I do not think I should take into account that the offender might be suffering from Wernicke-Korsakoff Syndrome.
This conclusion does not however end the question of mental incapacity, at least to the extent necessary for the application of the Verdins principles. It was common ground between the experts that at the time of the offending Mr Brown was at least suffering from a general anxiety disorder and depression. I do not think I could find the existence of a major depression at the relevant time.
In addition, the offender was drinking a great deal of alcohol, even if not to the extent suggested in some of the histories provided by the offender. The consumption of alcohol was a matter of choice for the offender. His drinking, of its own, would not qualify him for any mitigation. However, the drinking coupled with the anxiety disorder and depression do I think amount to impaired mental functioning.
Prof Greenberg said that the alcohol consumption, while not being a cause of the offending, could have contributed by operating as a disinhibiting factor.
I think the impaired mental functioning produced by the general anxiety disorder and depression have the capacity to impact on this offender in two ways. I think his current condition “will weigh more heavily on the offender then it would on a person in normal health”. There is no doubt that at the present time the offender continues to suffer from depression which will need monitoring in prison. Secondly, I think there is “a serious risk of imprisonment having a significant adverse effect on the offender’s mental health”.
However, as already said, I certainly do not think the Verdins principles should mitigate the sentence to the extent of making an ICO applicable. I think the mitigation will be best reflected in the length of the sentence and the non-parole period.
The non-parole period will also be a reflection of the offender’s prospects of rehabilitation. He has already engaged in treatment, he has completed an alcohol awareness course (Exhibit 7) and Prof Greenburg has observed:
Mr Brown has many positive personality strengths which will assist him in his rehabilitation program.
Prof Greenberg did however continue:
He will likely need to abide by the long-term conditions of any child sex offender register. In view of his ongoing partial denial/cognitive distortions, it is my view he would benefit from further sex offending program treatment.
Prof Greenberg’s opinion will no doubt be taken into account by the corrections and parole authorities.
There are a number of references. Ms Davis, who was the offender’s supervisor in the public service, says that he:
has been greatly affected by these events, and I have watched with sadness, how the stress and anguish of his situation has taken a huge toll on John both mentally and emotionally…He is extremely remorseful and has taken ownership of his actions that contributed to his current position.
Another former work colleague, Mr Pachika, describes the offender as “humble, friendly, brutally honest, respectful and of great integrity”. He concludes by saying that he “will not think twice to leave our young children in the care of John. This is how much we trust him, even after learning about this offence”.
Long-time friends of the offender, Mr Patterson and Ms Lewis have written:
The John Brown we have known for more than 20 years is a warm, friendly, honest and hard-working, good man who to our knowledge has never been in trouble with the police before. His battle with traumatic stress, his change in lifestyle and poor choices with alcohol has led him to commit something that he deeply regrets and is very much out of character.
Mr Wayne Warton, a local solicitor who became a friend of the offender also says that the offender’s actions are out of character. He specifically refers to the offender’s alcohol consumption:
In about November 2019, John confided in me that alcohol was a problem and that he was drinking way too much and could not seem to get it under control. He said he was frequently having blackouts and not remembering what had happened when he was drinking. I know the amount of cruising they were doing was contributing to his problem, particularly the free alcohol that was provided which he was consuming every day.
Mr Mayoh, also a friend, describes the offender’s remorse and says he has “given up alcohol completely and is actively receiving regular counselling and psychological services to help him understand his actions”.
Ms Haley Carne is the partner of one of the offender’s sons. She lives with the family. She trusts the offender and says “I have always felt safe around John and trusted him”.
There is a letter from the offender’s wife, Ms Tarin Brown. She says their marriage has been a ‘strong one’ which has included raising “four very honest, loving kids who are doing well in their adult lives”. She says that her husband has changed since his motor vehicle accident and had an increasing dependency upon alcohol. She is also hopeful that her husband will be sentenced to an ICO. Her letter concludes:
I also understand that John’s offence is very serious, and if he is granted a sentence that allows him to stay in our home, and that he would be subjected to very strict conditions. I am willing to do whatever I can to support John in his recovery and will do my best to assist John to comply with his conditions.
The final reference is jointly signed by the offender’s four children. They say:
As a group, we have discussed and agreed that John’s actions in this case are completely out of character and at no point during our childhoods did he ever show any misconduct towards us.
Mr Purnell SC provided me with a summary of comparable cases. Obviously no two cases are the same. Each offender and each victim have their differences.
Notably, of all the cases referred to, DU was the only one in which there was not a sentence of full-time custody. I have already pointed out the significant difference between this case and that of DU.
The Crown also provided me with a list of cases, but stressed that no particular case was directly comparable to the present facts. There are some similarities to R v Whittaker [2021] ACTSC 189 (Whittaker) in which, for one offence contrary to s 56, the offender received a term of imprisonment of seven years. Other offences took the total term to 9 years and six months with a non-parole period of four years and nine months.
However, the offending in Whittaker took place over two years and included several acts of sexual intercourse. The offender also had a previous conviction for sexual offending.
In R v Michalopoulos [2020] ACTSC 27 the respective ages were roughly similar to the present offending, as was the period over which the offending occurred. However sexual intercourse was occurring frequently and in contravention of family violence orders. In that case a term of imprisonment of five years and five months was imposed, with a non-parole period of 37 months.
The offender does not have a criminal record. This must be taken into account. So to must the Crimes (Sentencing) Act 2005 (ACT), in particular ss 6, 7 and 33. Section 10 is also important because it says that imprisonment is a last resort. I repeat my view that the seriousness of the offending, including the nature of the acts (the oral sex in particular) and the massive breach of trust, all render imprisonment inevitable.
The pre-sentence report says that the offender has not drunk alcohol since February 2020. It also says that on one of the occasions when offending took place he had drunk about 30 standard alcoholic drinks over 3 to 4 hours.
The report says:
Mr Brown’s offending behaviour appears to reflect his mental health and alcohol abuse issues and poor decision-making. To his credit, Mr Brown has proactively sought help and is addressing his offending conduct. He appears to be motivated to continue his treatment and to adhere to his relapse prevention plan.
There is also a need for public deterrence so that all older men contemplating molesting children must know that when they are caught they will be punished appropriately.
The plea of guilty followed a criminal case conference. The offender is entitled to a discount which I assess at 15 per cent.
My initial inclination was that a term of imprisonment of four years was appropriate. However, I will reduce this to 3 years because of my partial application of the Verdins principles and then by a further 15 per cent to reflect the plea of guilty. This produces a result of two years, six months and 14 days’ imprisonment.
Taking into account the positive chances of rehabilitation I will set a non-parole period of 17 months. There has been no time spent in custody so that the term of imprisonment and the non-parole period will commence today.
I make the following orders:
(i)The conviction is confirmed.
(ii)For the offence of engaging in a sexual relationship with a young person the offender is sentenced to a term of imprisonment of two years six months and 14 days to commence today and end on 2 February 2025.
(iii)I set a non-parole period of 17 months to commence today and end on 19 December 2023.
| I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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