Raymond Brooks v The Queen

[2020] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0207

RAYMOND BROOKS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE, McLEISH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2020
DATE OF JUDGMENT:	21 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 93     First revision:  23 April 2020, [2]
JUDGMENT APPEALED FROM:	[2019] VCC 1582 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence –Threat to kill – Whether victim present when threat to kill made – Indecent act with child under 16 – Whether judge erred in finding aggravating feature of victim’s presence established beyond reasonable doubt – Finding open to judge on totality of evidence – R v Storey [1998] 1 VR 35, applied – Formosa v The Queen (2012) 36 VR 679, considered – Leave to appeal granted, appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Mortley	Victoria Legal Aid
For the Respondent	Mr G Hughan	Ms A Hogan, Solicitor for Public Prosecutions

TATE JA
McLEISH JA
HARGRAVE JA:

TABLE OF CONTENTS

Introduction and summary................................................................................	1
Indecent act with child and threat to kill.......................................................	2
Amended charge and ruling on post-offence conduct....................................	6
Brooks’ evidence at trial....................................................................................	10
The plea hearing..................................................................................................	12
The finding that the victim was present when the threat to kill her was made......................................................................................................................	13
Did the judge err?................................................................................................	14
Conclusion...........................................................................................................	18

Introduction and summary

1. Raymond Brooks (‘Brooks’) applies for leave to appeal against sentence.  He was convicted of one charge of wilfully committing an indecent act with a child under the age of 16 and one charge of making a threat to kill.  Brooks pleaded guilty in the absence of a jury to the threat to kill charge on 10 September 2019 in the County Court.  He was then found guilty by the jury, on 18 September 2019, of one charge of wilfully committing an indecent act with a child under the age of 16, and found not guilty on a further 10 indecent act charges involving the same complainant. 

1. Brooks was sentenced on 2 October 2019 as follows:[1]

   [1]DPP v Brooks [2019] VCC 1582 (‘Reasons’).

Charge on Indictment	Offence	Maximum		Sentence	Cumulation
10	Indecent Act with Child Under 16	10 years		6 months with 2-year CCO.	3 months
13	Make Threat to Kill	10 years		9 months	Base
Total Effective Sentence:			12 months with 2-year CCO
Non-Parole Period:			N/A
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			12 days
6AAA Statement:			With respect to charge 13, but for the plea of guilty 12 months.
Other relevant orders:			Pursuant to Sex Offenders Registration Act 2004 s 34(1)(a) – 8 years. Forensic sample pursuant to Crimes Act 1958 s 464ZF(2).

1. Brooks relies on a single ground of appeal relating to the circumstances surrounding the threat to kill:

The Learned Trial Judge led herself into error by sentencing the Applicant on the basis that the…