DPP v Brown [2009] VSCA 314

2 On 11 June 2009, the respondent was sentenced on count 1 (the first of the four counts of indecent assault) to nine months' imprisonment; on count 2 (the count of rape) to 27 months' imprisonment; on count 3, to nine months' imprisonment; on count 4, to 12 months' imprisonment; and on count 5, to six months' imprisonment. The sentencing judge directed that one month of the sentence imposed on counts 1, 3 and 4, and 3 months of the sentence imposed on count 5, be served cumulatively upon the sentence imposed on count 2 and upon each other. The total effective sentence imposed was therefore two years and nine months' imprisonment. The judge ordered that two years of that sentence be suspended for two years. The respondent was therefore required to serve nine months in custody. In respect of counts 3, 4 and 5 he was sentenced as a serious sexual offender, and was registered pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic) and ordered to report for life. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), her Honour noted that she would have imposed a sentence of four years' imprisonment (two and a half years of which would have been wholly suspended for two years) but for the plea of guilty.

3 By notice dated 6 July 2009, the Director of Public Prosecutions appeals against each of these sentences, including the total effective sentence and the direction that part of it be suspended. In each case, the single ground is that the sentence in question is manifestly inadequate in all the circumstances. According to the particulars contained in the notice of appeal, the sentencing judge in each case:

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to sufficiently protect the community from the offender;

(e) failed to have sufficient regard to the maximum penalties prescribed for the offences;

(f) failed to have sufficient regard to the nature and gravity of the offences;

(g) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

(h) failed to have sufficient regard to the impact of the offences on the victims;

(i) failed to have sufficient regard to aggravating features of the offending, and in particular that the victims were abused in their own home and that the conduct in relation to counts 1 and 3 was repeated and protracted; and

(j) gave too much weight to mitigating factors concerning the offender, in particular his expression of remorse; his physical disabilities; and his personal circumstances.

4 Each offence was alleged to have occurred between 1 January and 31 December 1987. There were two victims. They are brothers, and each was then a child under the age of 16 years. We shall refer to them, respectively, as LP and KF. LP was 12 when the offending occurred; KF turned 11 in the course of 1987. They lived with their father. They slept in bunk beds in a shared bedroom. The respondent is more than 12 years older than LP and nearly 14 years older than HF. In January 1987 he was 24 years old; an adult whose victims were less than half his age.

5 Until early 1987, the respondent had been living with his parents. When they moved to Queensland, he needed to find alternative accommodation. At about the same time, the stepmother of the two boys moved out of the matrimonial home. The boys' father needed a tenant who would help with the rent and household expenses, as well as take over parental duties when the father was unavailable. The two men, who had become friendly through their common membership of a local football club, therefore had matching needs. Accordingly, there was mutual advantage in the respondent joining the household. But, of course, the arrangement placed him in a position of trust. He retained that position, while betraying it with sickening regularity, during the 12 months of his residence in the boys' home.

6 Those 12 months had dire consequences for the two boys. We refer in more detail later to the nature of the respondent's criminal behaviour. During frequent bouts of drinking the respondent regularly assaulted LP in the home while the boys' father was away. It is on these assaults that counts 1-4 are based. Count 5 is of an indecent assault on KF, the younger of the two.

7 The brothers' victim impact statements tell of the enduring and bitter legacy of the respondent's behaviour. As is so often, if not invariably, the case with the sexual abuse of children, their sense of self-worth has been irretrievably diminished, together with their capacity to commit fully to loving relationships with others.

8 The prosecution case as outlined to the sentencing judge was that, every weekend in 1987, the respondent would enter the boys' bedroom and awaken LP. The two would then go to the respondent's bedroom. The respondent would pull up LP's pyjama top, and pull down his pyjama trousers. He would then hold LP's penis, pulling it up and down for about 10 minutes. While doing this, the respondent would force LP to stroke the respondent's penis. He would then release LP's hand, roll towards him, and ejaculate on his stomach.

9 These actions form the basis for counts 1 and 3. Each is a representative count.[1] The respondent did not accept that the events described occurred every weekend but conceded before the judge that they had occurred with 'significant frequency'. Moreover, he said that he was invariably drunk at the time the assaults were committed and conceded that his getting drunk was a regular event. In her sentencing remarks the judge referred to the respondent's serious alcohol abuse, to the point that he was 'drinking his life away'.[2]

10 The events which led to count 2, the count of rape, began in the backyard of the Keysborough home. At some point in 1987, the two brothers, together with the respondent, camped in a tent set up behind the house. KF fell asleep on one side of the respondent, while LP lay on the other. The respondent reached into LP's pyjamas and, while rubbing his penis, said 'Can you give me head?' LP's response was that he did not know how to. This did not deter the respondent, who commenced to suck LP's penis. He stopped when the boy froze, but then pushed the victim's head and mouth on to his own penis, making him suck it. Hence the charge of rape.

11 On another occasion, the respondent awakened LP. Again, they proceeded into the respondent's bedroom. He was naked; the boy was wearing pyjamas. After they had climbed into the respondent's bed, he pushed the boy on top of him and commenced to kiss him, putting his tongue into the boy's mouth. He then pushed the victim off, pulled his pyjamas down, and whilst he (the victim) was lying flat on his stomach, proceeded to lie on top of him and pushed his (the respondent's) penis between the cheeks of the victim's bottom. This caused the victim pain. A short time later, the respondent ejaculated. These actions constituted count 4, the most serious of the counts of indecent assault.

12 The final count, count 5, involved the younger brother, KF. It therefore has its own inherent degree of seriousness. Again the respondent came into the boys' bedroom; but on this occasion he climbed into KF's bed and cuddled him. KF froze. The respondent attempted to push his hands down KF's pyjama trousers, but when the boy rolled away the respondent left the room.

13 In the absence of a relevant mental illness, there cannot be any excuse for any of these events. As this Court has stated repeatedly, the sexual abuse of children by persons in a position of trust is intolerable.[3] This was no less the case in 1987 than it is now, although (as noted earlier) Parliament has since dramatically increased the penalties for the offences to which the respondent has pleaded guilty. We must nevertheless consider this appeal in the light of sentencing practices current at the time of the offences.[4]

14 The sentencing judge found that the respondent had become depressed and excessively lonely following his separation from his parents. The medical evidence before her Honour was that, throughout his life he had suffered from a severe skin disorder which is very difficult to treat effectively. It has resulted in a loss of self-esteem. He had taken to drink, to the point of becoming an alcoholic. He is not homosexual, but had been unable to form any meaningful relationship with anyone of the opposite sex. It was said that frustration associated with this gap in his life, coupled with his depression and the effect of alcohol, lay behind his exploitation of the two boys in his care.

15 There was in evidence before the sentencing judge a report dated 17 May 2009 prepared by a psychologist, Mr Peter Jordan. He saw the respondent in consultation for approximately two and a half hours. He refers in his report to the severe skin disorder from which the respondent suffers, with suppurating cysts affecting his groin and buttocks. The sentencing judge noted in her sentencing remarks that sexual impotence had been a side effect of the necessary medication; that the problem required constant treatment with frequent changes of clothing, dressings and bed linen; and that it had led to (understandable) low self-esteem. This, her Honour said, would render imprisonment extremely onerous. That finding was not challenged on the appeal.

16 Under the heading 'Assessment', Mr Jordan refers in his report to the respondent's expression of remorse, which included disgust at his previous behaviour, both in relation to the two boys and in relation to a further conviction for an indecent act with a child under the age of 16 (the victim being a 12 year old boy, no relative of LP or KF). There were, in Mr Jordan's opinion, 'no indications in his presentation to suggest that [this remorse] was anything other than genuine'. Moreover, his Personality Assessment Inventory (which, according to Mr Jordan, provides a measure of consistency of response and of minimisation or exaggeration of psychological and physical complaints) revealed that the respondent did not attempt to present either an unrealistically favourable or a more negative impression than the clinical picture would warrant. On the other hand, he appeared to be uncertain about major life issues and to have little sense of purpose. Indicators of aggression, anger or hostility were absent. Indeed, the respondent's profile 'indicated a person who is generally warm and empathetic towards others'.

17 Mr Jordan concluded that the subject offences 'appear to have been opportunistic' and to have 'occurred within a context of a very depressed mood following the relocation of his parents from Victoria to Queensland'. By contrast, the man who presented to Mr Jordan was happily married, had drastically reduced his alcohol consumption, and was remorseful. The psychologist thought that 'his risk of re-offending is low' and that 'his prospects of rehabilitation are very good'.

18 The judge was understandably impressed by the expert evidence, as are we. She took into account all that could be said in the respondent's favour, including his early plea of guilty. She recorded that he had consistently paid child support for his daughter from an early relationship, and that his present marriage was a good one despite the lack of intimacy (the result of impotence generated by the medication which the respondent must take for his serious skin condition). Both his wife and his mother have suffered from ill health, and his mother remains frail and unwell. Both are dependent upon the respondent, and their situation is exacerbated by the respondent's imprisonment in Victoria while they live in Queensland. Her Honour accepted that the respondent was remorseful and that 'there are no concerns in relation to [his] attitudinal and behavioural features relevant to aggression, anger and hostility'.

19 The judge accepted Mr Jordan's assessment that the likelihood of the respondent re-offending was low. Her Honour concluded this portion of her sentencing remarks by saying:

[23] It appears that the person who appears before me to be sentenced today is very different from the one who perpetrated those offences in 1987. At the time, according to Mr Jordan, you were suffering depression, you were an alcoholic, stressed by isolation, your family having left to go to Queensland, and suffering from your inability, due to your skin condition to formulate appropriate and proper relationships.

[24] You have ... reordered your life. You live in Queensland, and your mother and wife are dependent on you, both financially and emotionally, and you, with your serious skin disorder, are, to a certain extent, dependent on your wife for treatment and support. You are a man who has accepted his wrongdoing and is prepared to face up to the consequences. You indicated your guilt at the conclusion of your record of interview, and have been cooperative at all times since that date. The 20 years that have elapsed between this offending and my sentencing of you mean, in effect, that you are both physically and emotionally a different man. I understand that any sentence you serve will be served in this State, while your family remain in Queensland, which will make any sentence imposed more onerous on you than in normal circumstances.

20 The assessment of risk was necessary because, as her Honour properly recorded, when imposing sentences for those offences for which the respondent was sentenced as a serious sexual offender, she was required to treat as the principle sentencing purpose the protection of the community from the respondent.[5] Her Honour did not consider it necessary or appropriate, in order to achieve that protection, to impose a sentence longer than that which was proportionate to the gravity of each of the relevant offences. She also concluded that the respondent's 'conscience of itself would operate to deter [him] from any further offending' and that 'in the light of [his] rehabilitation' specific deterrence was not a major concern.

I am, further, required to consider general deterrence. That is that other members of the community must be deterred from taking advantage of positions of trust by abusing young children with whom they come into close contact. They must understand that, even after many years, they will still face the courts and their actions will have serious consequences for them.

I am also required to denounce your conduct on behalf of the community, and I do so. Your behaviour meant that two very young boys were unable to feel safe, protected or even comfortable in their own home environment. The abuse of young boys by a man some 10 years older, who is in a position of trust and living in their own home is deplorable behaviour, and I find this offending extremely serious.

22 Her Honour also took into account what she described as the respondent's 'rehabilitation in relation to which you have made enormous efforts'. She noted the delay between the commission of the offences and the sentence, that delay being of 'some 20 years'.[7]

23 The principles governing appeals by the Director of Public Prosecutions are well known. They are conveniently set out in DPP v Bright.[8] An appeal should not be brought unless the inadequacy in the sentence is clear and egregious, to the extent that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity. Even then, the court has an overarching discretion not to interfere. Because of the element of double jeopardy, restraint in re-sentencing is required; and if, in the particular circumstances of an individual case, the result of that restraint were to be a mere tinkering with the original sentence, then intervention will be inappropriate.

24 The issue of proportionality is important in this case. Redlich JA expressed it in the following words:[9]

Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.

25 Although her Honour addressed all the relevant factors, we have concluded that the sentences were so disproportionate to the seriousness of the crimes as to shock the public conscience. They did not reflect the objective gravity of the offences. As was said by Hedigan AJA in R v Ware:[10]

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate.

In this case, the respondent engaged in the persistent sexual abuse of a young male less than half his age, over a period of about 12 months. His single motive was the gratification of his deviant sexual desires. He was indifferent to the effect of his conduct on those in his charge and to whom he owed a duty of trust.

26 The persistence of the offending increases the respondent's culpability. As the Court said in DPP v DDJ:[11]

The repetition of the sexual abuse is likely to heighten the victim's fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.

27 The sentencing judge described the respondent's behaviour as 'deplorable' and his offending as 'extremely serious.' His victims were 'unable to feel safe, protected or even comfortable in their home environment'.[12] We think, however, that the damage extended beyond the deprivation of safety, protection and comfort. As is indicated by their coming forward after 21 years, this was a time of great trauma, from which the victims may never recover.

28 It is pertinent to note the words of Vincent JA in DPP v DJK,[13] concerning sentencing and social rehabilitation:

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

29 In our opinion, a total effective sentence of two years and nine months' imprisonment, two years of which are wholly suspended, is manifestly inadequate in the sense described above. It fell significantly short of what was required to achieve proportionality between the sentence and the gravity of the crime. Notwithstanding the early guilty plea, the respondent's remorse and prospects of rehabilitation, his debilitating skin condition and the other mitigating circumstances, we have concluded that the appeal must succeed.

30 Senior counsel for the respondent helpfully drew the Court's attention to the sentencing statistics for the higher criminal courts in Victoria for the years 1986, 1987 and 1988. They reveal a wide variation in the sentences handed down for indecent assault. The average where a sentence of imprisonment was imposed was a little over one year's imprisonment . The median in 1986 and 1988 was one year; in 1987 it was nine months' imprisonment. In relation to the offence of rape, in each of the three years in question, the median term of imprisonment, (where imprisonment was imposed) was four years; the average varied between four years and two months and four years and eight months.

31 The respondent's offending was, as her Honour correctly observed, extremely serious. It was predatory and exploitative. It cast a dark shadow, probably never to be removed, over the lives of its victims. In these circumstances, adequate provision must be made for denunciation, and for general and specific deterrence.

32 The respondent will be re-sentenced as set out below. The sentences have been reduced to take account of double jeopardy. We have moderated the statutory requirement to cumulate the sentences on counts 3-5.[14]

33 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), we state that if it had not been for the respondent's plea of guilty, we would have imposed the following sentence:

[1] See The Queen v CJK [2009] VSCA 58, [43].

[2] R v Brown (Unreported, County Court of Victoria, Cotterell J, 11 June 2009) [17].

[3] DPP v VH [2004] VSCA 180; (2004) 10 VR 234, 237-8 (Callaway JA, with whom Buchanan and Eames JJA agreed); DPP v CPD [2009] VSCA 114, [54]-[56].

[4] The Queen v RL 19 May 2009 [2009] VSCA 95, [59] (Nettle JA).

[5] Sentencing Act 1991 (Vic) s 6D(a).

[6] R v Brown (Unreported, County Court of Victoria, Cotterell J, 11 June 2009) [29].

[7] R v Brown (Unreported, County Court of Victoria, Cotterell J, 11 June 2009) [32].

[8] [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA).

[10] [1977] 1 VR 647, 653.

[11] [2009] VSCA 115 [32] (Maxwell P, Vincent and Neave JJA).

[12] R v Brown (Unreported, County Court of Victoria, Cotterell J, 11 June 2009) [30].

[13] [2003] VSCA 109, [18].

[14] Sentencing Act 1991 (Vic) s 6E.