R v Geoffrey Brown

[2018] NSWDC 146

District Court

New South Wales

Medium Neutral Citation:	R v Geoffrey Brown [2018] NSWDC 146
Hearing dates:	08 June 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	An aggregate sentence of 2 years imprisonment with a non-parole period 6 months.
Catchwords:	CRIMINAL LAW SENTENCING – indecent assault – child victim – long delay – consistent application of sentencing principle – conflicting purposes of sentencing – victim impact – hardship of imprisonment – aged offender – ill health – special circumstances importance of fact of imprisonment.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Evidence Act 1995
Cases Cited:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Barbaro v The Queen (2014) 253 CLR 58 Burrell (2000) 114 A Crim R 207 Clarkson [2011] VSCA 152 Devaney [2012] NSWCCA 285 Fisher (1989) 40 A Crim R 42 at 445. Hili v The Queen (2010) 242 CLR 520 Hopkins [2010] NSWCCA 105 JDX [2017] NSWCCA 9 Kutchera [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59. Nguyen v The Queen (2016) 256 CLR 656 PH v R [2009] NSWCCA 161 PWB [2011] NSWCCA 84 Queen v Pham, (2015) 265 CLR 55 R v Gavel [2014] NSWCCA 56 R v MAK [2006] NSWCCA 381 R v MJR [2002] NSWCCCA 129; 54 NSWLR 368 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 Rolfe, unreported, CCA NSW, 25/7/1995 Ryan (2001) 206 CLR 267 Sellen (1991) 57 A Crim R 313 Simpson [2001] NSWCCA 534 Smith (1987) 44 SASR 587 Thompson (2000) 49 NSWLR 383 at [3] Todd (1982) 2 NSWLR 517 at 519
Category:	Sentence
Parties:	Geoffrey Brown (Accused) Director of Public Prosecutions
Representation:	Counsel: Mr A Williams (for the Accused)   Solicitors: Mr M Ward (for the Accused) Ms S Knox (for the Director of Public Prosecutions
File Number(s):	2016/00010555
Publication restriction:	Non-publication order not to identify the complainant or other child witnesses

Judgment

Pseudonyms

1. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s 578A 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 the child victim and because she is a relative, the offender. Identifying information has been removed from this version of the judgment to comply with the statute. Pseudonyms will be used for the names of the offender and the child victim.

Introduction

2. On 20 November 2017, Geoffrey Brown accepted his guilt for two very serious offences carried out against his granddaughter, Mary, in October 1997. The offences, pursuant to s61M(2) Crimes Act 1900, then carried a maximum penalty of 10 years imprisonment. The aggravated form of offence applied here, as Mary was under 10 years old, namely four years old. The guilty plea came late. Brown had originally been indicted for a more serious offence with one of these offences as an alternate. The trial had originally been listed in 2017 but was not reached. The guilty pleas were only accepted the week before the matter was listed for trial for a second time but the court was told of this in advance of the trial date so that another matter could and did proceed on 20 November 2017.

Agreed Facts

3. In 1997 Brown was 54 years old. He is now 75. Mary was only 4. On 13 October 1997, the Brown family were all in Bellambi. Mary’s mother, the offender’s daughter, had just leased a house there. The family had come down from Newcastle to help with the move. That afternoon the offender was left alone in the house with and her twin brother while others went to get lunch. The offender told Mary to sit opposite. Something he said made her feel scared and uneasy. He took off her pants and underwear and touched her on the vagina. She remembers feeling a sharp pain there.

4. Her brother came into the house. The offender took him back outside. He then took Mary to the toilet. She recalls feeling scared and upset. The offender then made her hold his penis as he urinated. He held her hand on his penis and made her shake it. He then made her move her hand up and down it.

5. Later that night Mary told her mother that “Poppy” had done “rude things” to her. Mary’s mother then spoke to her mother, the offender’s wife. The offender when told of the allegation made some admissions. Family and Community Services were notified but the matter was not referred to the police until 2016 after Mary had received counselling and spoken to her father about reporting the matter.

6. In a record of interview with police on 12 January 2016 the offender made admissions to touching Mary’s vagina. He said he could not recall the second event and claimed he could not have had an erect penis because he was impotent at the time.

Indecent assault child

7. In 1997 a s 61M(2) offence carried a maximum penalty of 10 years. That maximum applied to an indecent assault on a child under 10.

8. Careful attention to the maximum penalties is required. Not just because the Parliament has legislated for them. Maximum penalties provide a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between the instant case and the worst case. That said it is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: MarkarianvThe Queen(2005) 228 CLR 357 at [30] and [31]

9. Mary was only 4. Generally the younger the child the more serious the offence as younger children are more defenceless and vulnerable. The offences involved both the physical and psychological violation of the child. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: see Clarkson [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56.

10. So much is made clear in the Victim Impact Statement (VIS) to this matter which I have received and considered. That VIS sets out what are tragically the common results of such terrible crimes. In it Mary tells me, the court and the offender:

“I want him to know at the age of four my life was ruined. You are the cause of my hurt. You have dragged me through this hell… as we waited for the trial to happen. For the past 20 years or so my damage was unseen. I carry it with me. You took away my privacy, my energy, my safety, my time, my intimacy with any male, my confidence, my voice until today… What you did stays with me…... Even though court is finishing this will not be the end for me. I will keep fighting through each day so that you do not own the way I live the rest of my life”

11. The potential for, and actual harm, caused by such offences is one important reason for the high maximum penalties and now the high standard non‑parole period fixed for such matters. That said the offender must to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39].

12. The offences were apparently opportunistic. There was some early acceptance of responsibility when soon after Mary complained to her mother and Family and Community Services. The offender’s daughter, entirely understandably, thereafter had nothing to do with her father. Accordingly, there was no opportunity for the repetition of the offending.

13. Every act that involved the sexual exploitation of a child is serious. Here the following matters indicate how serious these offences were. Although the acts were different in nature each is of equal seriousness and impact.

14. The offender was the child’s grandfather. She was entitled to look to him for protection and care. He breached the trust every child should have in their grandfather. He was the only adult in the child’s new home. She was under his protection. She was only 4 years old, defenceless and vulnerable. He removed her underwear. He touched her genitals. He hurt her. He then took her to another room and made her touch and manipulate his penis.

15. A sentence of imprisonment should be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. Objectively both offences call for a sentence of imprisonment of some length. I must also give effect to basic principles of sentencing law. Those principles allow here for some moderation of the severity of the sentences.

Sentencing for old offences

16. Sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: R v Todd (1982) 2 NSWLR 517 at 519.

17. In PWB [2011] NSWCCA 84, Justice RA Hulme set out some judicial commission statistics and the result of Judicial Commission research about sentencing offences that occurred last century. The statistics cited noted that in 1994 only 39% of offenders for s 61M(2) offences were sentenced to full time custodial sentences. The median full term was 36 months. For the period 2000-2002, 57.1% of offenders against s 61M(2) were sentenced to full time custody and the median term was 39 months. His Honour was characteristically blunt: noting, “having regard to the wide variation that can occur in the nature of offences falling within the statutory provisions under … I have found the statistics of no assistance for present purposes.”

18. His Honour after an extensive review of available cases concluded that last century there was a lower sentencing regime than presently exists. He was not able to derive any sentencing pattern for offending of the nature of that committed by PWB. Accordingly he adopted, “the normal sentencing approach having regard to the statutory provisions relevant to the particular time and such assistance as may be obtained from the decisions of other judges:” R v Moon at [70] - [71]; R v MJR [at [107]. To enable future judges such as myself to have that assistance a table of decisions was annexed to the decision in PWB. Mr A Williams, who appears, for the offender also referred me to Rolfe, unreported, CCA NSW, 25/7/1995.

19. In PWB, Justice Hulme also reviewed a number of decisions of Howie J pertinent to the present matter where there had been considerable delay and no re-offending since: AJB v R [2007] NSWCCA 351; R v Moon, at [81] and PH v R [2009] NSWCCA 161. The following citations are pertinent:

“In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court:” Moon, at [81].

“General deterrence was not a significant matter in the Applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct:” AJB, at [30]

“This is not to imply that general deterrence is of no significance in such cases. Potential offenders should understand that the courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished. But, as was recognised in Holyoak, the need for general deterrence must be considered in light of the effect of the sentence of imprisonment upon the offender and the implication of that sentence upon his prospects for release:” PH, at [32]

20. As Mason P noted in MJR at [57], sentences have, and are still, increasing for such matters, “…this putative increase has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes. These reasons - and there may be others - indicate to me that, in the present context, a sentencing court should prefer today's attitudes to the laxer patterns of previous years.”

21. I note that Courts last century were not uniformly lax and did treat such matters seriously. Sentencing judges were urged to and did impose severe sentences: see Fisher (1989) 40 A Crim R 42 at 445.

22. I have had regard to these and other cases to which I was been referred by counsel. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. Although there is no pattern of past sentences other cases do help guide the exercise of my sentencing discretion. However, each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Bell and Gaegler JJ noted in The Queen v Pham, (2015) 265 CLR 55, at [47]. “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’

Subjective case

23. The offender has no criminal antecedents.

24. None of the evidence for the offender was on oath. No one was required for cross-examination. The material tendered took the usual form of reports and a reference. It includes a report of Dr Ashkar, a forensic psychiatrist (exhibit1); Dr Westacott, the offender’s treating Doctor (exhibit 2) other medical records (exhibit 3) and a reference from the offender’s wife (exhibit 3). The offender also wrote a letter to the court (exhibit 4). He did not give evidence.

25. There is no reason here to doubt the bona fides of the offender’s treating doctor or Dr Ashkar. I do not believe any need for particular scepticism required. Dr Ashkar does not appear to be merely parroting words at odds with other material tendered, as occurred in JDX [2017] NSWCCA 9. The material tendered is not put forward as evidence going to an assessment of the objective circumstances of the offences, rather, it sets out offender’s background, work history, health and family matters.

26. The offender’s history as set out in the Report is relatively uncontroversial. It is relevant. It goes to the offender’s prospects and future risk. The material also allows for some understanding of how he came to commit these crimes. It is the sort of material regularly presented in sentencing proceedings without the need for it to be supported by evidence on oath or by applying the Evidence Act 1995. Were the Evidence Act to be regularly invoked in every such instance busy lists such as Wollongong’s could not function.

27. As Allsop P, noted in Devaney [2012] NSWCCA 285, at [88], care needs to be taken not to exclude admissible evidence in tendered Reports by a process going beyond an assessment of weight:

“It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect… it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history…Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional.”

28. The offender was born in 1943. He spent most of his life in Wollongong before moving to Newcastle 23 years ago. He had a happy and stable childhood. His father worked in the mines and for the local council. The offender’s early life is described as “normal.” He left school at 14 to work; first in a bakery, then in the steelworks, a brickyard and a foundry. He stopped working in 1987 due to health problems and has been on a pension ever since. He married in 1971. He has two daughters and a son. Since these offences were revealed in 1997 he has had no contact with his daughters.

29. The reports and records indicate long-term problems with anxiety and depression for which he is receiving treatment. He also has a number of other significant health problems.

30. The offender told Dr Ashkar that he could not account for his behaviour towards Mary. Dr Ashkar says, “He demonstrated a limited understanding of the moral and ethical issues underpinning the illegality of his offending behaviour.” Dr Ashkar notes the offender did however express appropriate recognition that his obligation was not to touch children but to look after them, nurture them and teach them right from wrong. Dr Ashkar said he had demonstrated appropriate shame and contrition.

31. That expression of remorse was repeated in the offender’s letter to me: exhibit 4. I can give it some weight for it is clear that offending behaviour of some sort was acknowledged and acted on in 1987 and that his acts and Mary’s prompt revelation of them did tear his family apart. He has however only himself to blame

32. In Dr Ashkar’s professional opinion the chance of sexual recidivism is very low. Although cognitively alert the offender is now demonstrating inefficiencies with his memory and other matters consistent with old age, illness and a lifetime history of reading and writing difficulties.

33. Dr Ashkar concludes the offender is not antisocial and that he will benefit from specific treatment to help him understand the motivations that underpinned his offending behaviour. I am aware from dealing with many cases involving gaol based sex offender programmes that he is unlikely to be get access to suitable treatment in gaol unless he is imprisoned for years. Dr Ashkar notes that he would be vulnerable to victimisation in custody and his medical needs will lead to him facing significant difficulty while in custody.

34. The offender is a long-term patient of Dr Westacott’s practice. He has been treated over many years for anxiety and depression. His mental health has worsened since the charges were laid and he now requires medication for those conditions. She lists his other medical conditions and medications. She notes he suffers from Crohn’s disease. He has had a bowel resection. He also suffers from, and requires medication for, back pain, irritable bowel syndrome, gastric reflux, onychomycosis (severe tinea under the toe nail) and hypertension. The medical records, exhibit C, confirm this short summary.

35. I can give some weight to the reference from his wife who has stood by him throughout. She notes he attempted suicide soon after the offences. She notes his expression of remorse and her sorrow at the offences that have torn her family apart. She has her own health problems but it not suggested they are exceptional. They still remain a relevant factor to be taken into account. She needs him to care for her as he needs her to care for him.

Ill Health

36. Offenders generally cannot escape punishment because of the condition of their health: Smith (1987) 44 SASR 587. Ill-health is however a factor that can mitigate punishment, particularly where, as here, imprisonment will be a greater burden on the offender by reason of their state of health and carries with it a significant risk.

37. As well as the risks associated with an offender’s medical condition, the realities of prison life should not be overlooked in the exercise of the sentencing discretion: Burrell (2000) 114 A Crim R 207 per Mason P at [27].

38. Serious physical disabilities or poor health rendering imprisonment more burdensome to the offender than for the average prisoner has been held to establish special circumstances warranting a longer period on parole: Sellen (1991) 57 A Crim R 313. Care will be taken not to double count such mitigating factors.

Special Circumstances

39. There will be a finding of special circumstances here. There is demonstrated rehabilitation. There is the hardship of custody. Psychological assistance and sex offender programs are required. There is no likelihood they will be able to be provided in custody given he will, as I am well aware, as an inmate be given a low priority. It is likely he will, as an ill and elderly first offender with no prior involvement with crime or gaols, be kept in strict protection or the gaol hospital.

39. In making a finding that the minimum period the offender must be kept in gaol need not be not long I am also cognisant of the requirement must also properly reflect the gravity of his offences and the manifold purposes of sentencing: Simpson [2001] NSWCCA 534.

Accumulation and Totality

41. A sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59.

42. Sentences are not to be made concurrent just because of the similarity of the conduct or because the conduct may be seen to be part of the one course of criminal conduct. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381. However, where, as here, the offender’s liability for two offences is inextricably linked, judges are allowed considerable flexibility in how the aggregate sentence is structured: Nguyen v The Queen (2016) 256 CLR 656, per Bell and Kean JJ at [36] – [40]. As many of matters to be taken into account overlap considerable concurrence is called for.

The guilty plea

43. The guilty plea came late, on the morning of his trial. This was the second time a trial was listed but on the first occasion it could not be reached. The court had notice a week before and we were able to proceed with another matter that day. The most the serious count was not proceeded with. It had been indicated at committal that a plea could be entered to the alternative s 61M(2) count. An offer to plead to the counts was made at the Wollongong District Court’s special call-over of all trial matters in August 2017 (exhibit 6). That plea offer was accepted in November 2017.

44. On the other hand as the VIS makes clear the delays and anxious anticipation as this matter waited for resolution had an impact on the victim and other prosecution witnesses.

45. A guilty plea has utilitarian value to the efficiency of the criminal justice system. One important reason for the practice of allowing a utilitarian discount for a guilty plea is that in particular cases - especially sexual assault cases and crimes involving children - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson (2000) 49 NSWLR 383 at [3].

46. In all the circumstances a reduction of the otherwise appropriate sentences to be indicated of 20% for the first count and 12.5% for the second is required to reflect the utilitarian value of the plea. I will take care that that benefit is not eroded by the process of accumulation. I will also take into account the offender spent 1 day in custody.

47. The plea is also a practical expression of the remorse and contrition expressed back in 1997 and to Dr Ashkar and in the unsworn letter to me (exhibit 5). Although of limited value and far too late to offer any solace to the complainant it will be taken into account in my general synthesis of relevant factors.

Submissions

48. I am indebted to counsel for their written and oral submissions: see MFI 1 & 2. I trust this judgement does justice to those submissions.

Synthesis

49. There are here two important and competing principles requiring synthesis. The first, severity; and the second, recognition of rehabilitation and the impact of delay on the man who now appears before the court.

“Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative:” Hopkins [2010] NSWCCA 105, Simpson J, at [22].

50. A sentence must by its severity attempt to deter this offender and others from similar offending. Severity is also required to vindicate the dignity of the victim and recognise the harm done to her and the community. Retribution is also demanded for sexual offences against young children. There is a community expectation that crimes such as these will merit severe punishment: Ryan (2001) 206 CLR 267.

51. On the other hand all the information before the court is that this was one serious criminal incident committed by a man whose life otherwise was, with respect, ordinary and blameless. And, a man, on whom, custody will have considerable adverse impact.

“Where there has been a substantial delay in prosecution and the offender is successfully rehabilitated and has refrained from re-offending, those matters will be relevant to determining a sentence that is proportionate to the offence and appropriate to punish the offender: AJB (2007) 169 A Crim R 32; Kutchera [2007] NSWCCA 121.

52. Mary in her VIS asked for a gaol sentence. Opinions of victims must be considered but they cannot determine the outcome of sentencing proceedings. The Crown Submissions also ask for full time custody with accumulation as the only appropriate outcome. Reference is made to a number of cases where very severe sentences were upheld although some are post standard non parole period or not at all comparable to a one off offence 20 years ago.

53. In 1997, and now, indecent assaults of this nature by a grandfather on his 4 year old granddaughter could only result in full time imprisonment. That must be the result today. However, given the delay and the subjective case put for the offender and as was noted in Moon, at [81], “it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct.”

54. The sentence imposed is only one indicator of the seriousness with which the court views the crime committed. That said a court sentencing an offender must take into account all relevant considerations. This mean a direct correlation between harm done and time to be served is impossible. A victim should never equate or measure her injury with the punishment actually inflicted.

Orders

55. In respect of each count and in accordance with your guilty plea you are convicted.

56. The indicative sentences to be applied are as follows:

1 year 7 months

1 year 9 months

57. Having considered issues of accumulation, concurrency, totality and the finding of special circumstances, I am satisfied that an aggregate sentence of 2 years imprisonment with a non-parole period 6 months should be imposed. The sentences will date from 7 June 2018. You will be eligible for release to parole on 6 December 2018. The sentence expires 6 June 2020.

58. A copy of Dr Westacott’s and Dr Ashkar’s reports should go with the warrant.

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Decision last updated: 08 June 2018