DPP v Brown [2025] VCC 1031

30 June 2025. It was a three charge indictment and Mr McKenry appeared for the Director and McFarlane appeared on behalf of Mr Brown. Forfeiture was sought which I have signed I understand. Also, by way of extra there was a SORA requirement which I've also mentioned which will be registration and attendance to the requirements of that Act for a period of 15 years. There was no victim impact statement filed. 2. Exhibit A was tendered by the prosecution as the summary of the facts involved in those three charges which was accepted by Ms McFarlane as the facts upon which I am to sentence Mr Brown. 3. The circumstances are that at the time of this offending the victim was 16, therefore defined under the Act as a child. She is now 17 and was born in 2003. Charge 1, a Commonwealth charge of solicit child abuse material, is one under s 474.22(1) of the Commonwealth Criminal Code for which the maximum sentence is 15 years. 4. The offending took place from 17 March 2024 to 11 June 2024. It is a rolled up charge which relates to seven occasions in which solicitation took place throughout that period, the specifics of which are detailed in Exhibit A from paragraphs 5-9. The solicitations took place both by way of carriage service, Facebook Messenger, and text. There is no evidence that as a result CAM material was in fact obtained, the charge being only solicit. However of course Charge 3 had occurred prior to the dates of this offending. 5. The second charge is also a rolled up charge, but this time under the Victorian Drugs, Poisons and Controlled Substances Act, in particular s 71AB(1) which is a charge of traffic drug of dependence to a child from 18/03/24 to 01/08/24. The definition of traffic in the Act includes trafficking and defines as trafficking offering for sale, both of which circumstances seem to fit the facts in this case. The drugs involved were cannabis, in which there was 19 occasions where cannabis was trafficked to the victim, in the amount of 58 grams for the sum of $525. In the same period ecstasy was trafficked to the victim, being 16 caps of ecstasy on three occasions, for the sum of $230 in total. As I said, it was a rolled up matter for those occasions, for what the maximum penalty is 20 years imprisonment. 6. The third offence in the indictment is one of possession under the

State Crimes Act of child abuse material, pursuant to 51G(1) for which the maximum penalty is 10 years imprisonment. The period over which such possession took place is from 14 March 2024 to 15 March 2024, when a warrant was issued. There were found video files held by Mr Brown of the victim. There were three of such files and on each file the CAM was the placing of three fingers into the vagina of the victim. The analysis of those files show that Mr Brown had watched those particular files on a number of occasions. 7. I come then to the prior offences of Mr Brown which are extensive, but essentially relate to theft and drug matters. He has no priors for sexual offending. His priors go back to 1995 and essentially involve drug matters, theft matters, traffic matters in the sense of traffic issues with cars. There was in 2020 a family violence intervention order breach and that was with a new partner and a number of drug matters being possession of methamphetamine, amphetamine and traffic amphetamine and methamphetamine. His priors are from when he was approximately 42 in 1995 when he recorded his first theft offence. The periods of imprisonment that he has served has been minimum; 30 days in 2019 and a period of seven months aggregate in 2020, but as I said in regard to this indictment there has been no priors for sexual offences. 8. The victim was a person who was subject to Child Protection, of which Mr Brown was aware. The victim had come into the care of Mr Brown and his partner through facilitation of Child Protection. She had stayed at Mr Brown's home on a number of occasions. 9. In the sentencing submissions of the prosecution in regard to this indictment the prosecution submitted that the Court was dealing with inherently serious conduct, such as to merit consideration of specific deterrence, general deterrence and the important principle of protection of the community. The prosecution did not accept the submissions of Ms McFarlane that there should be community correction order without immediate imprisonment, but submitted to the Court that a combination sentence was in range. 10. In the defence submissions made by Ms McFarlane on behalf of Mr Brown, she accepted the seriousness of all of the crimes. As to Charge 1, it was noted that soliciting had occurred on seven occasions and was therefore a rolled up charge and as further noted, the penalty for that offence in 2010 had been increased from 10 years to 15 years. Charge 2, obviously also is inherently serious, given the maximum penalty of 20 years imposed by Parliament for trafficking drugs to a child, and again was a rolled up charge. Ms McFarlane also accepted that Charge 3 was a serious crime, that is the possession of child abuse material, but made the point that when compared to many cases that come before this Court, Mr Brown's offence related to three files only and was not aggravated by financial reward or distribution. 11. Ms McFarlane pointed to the utilitarian benefit of the plea of guilty, which had taken place at the hand up brief. She pointed to the fact that that plea meant that there were no witnesses required, in particular the victim in this matter, and to the fact that her client was apologetic for these offences from the very earliest time as set out in the record of interview indicative of remorse. Indeed in such record of interview he put as the reason and the basis for him committing such offences, which were totally out of character, that is albeit that he had a criminal past he had not had any criminal priors for these type of offences. He uttered in the record of interview that the reason why these offences took place, to use his words, was that he was 'fucked on drugs', one would have thought no truer words could have been uttered. 12. It was put by Ms McFarlane that I should accept that there are prospects for rehabilitation given the periods of non-offending that Mr Brown was able to effect when he was off drugs. I am not so positive. Clearly one would take the view given the background that the chances of rehabilitation in regard to sexual matters is good. In the report, Exhibit 2 of the psychologist Ms Cokorilo, she is of the view that insofar as the prospects of rehabilitation at [65] that, she takes a moderate view, and at [104] that it is reasonable to believe that he would effect rehabilitation. 13. Ms Cokorilo also points out by way of background, the issues that he has had as a young child and growing up in circumstances of family separation, violence within the home from the father, and subsequent issues of betrayal with the father. It should however be pointed out that he had a lengthy period of partnership which produced three daughters over some 25 years. The difficulties seemed to come upon him since that separation took place and he changed his lifestyle. 14. During that period of stability prior to that separation as indicated in the references by both his mother and daughter, he was a person who was a hard worker, had consistent work, provided for the family and was a good father. The difficulties that he has encountered since he had changed his lifestyle, subsequent to the separation are clear from his prior offences. I note in

Ms Cokorilo's report at [14] that he suggested to her that he has in fact spent some five years in custody. I do not think that is correct, but certainly since the separation in 2014, things have gone astray with him, mainly as I assess it due to his drug taking, and that has resulted in the major depressive disorder that he now suffers. 15. Fortunately, a lot to do in 2022 apparently with his period in Odyssey, he reunited with his two eldest daughters during that time. His mother is his primary support and a fervent supporter as she sets out in Exhibit 4. The more recent Exhibit 5 from his daughter Chelsea talks to the matters that I have already referred to in regard to his life. 16. The problems of course, since he was sentenced by Judge Smallwood in 2022, all go back to him going back onto methamphetamine in early 2004 and also chroming. If I read from Exhibit 2. It is clear that as a result of the drugs and the lifestyle associated with that he developed anxiety and what is described by the psychologist as a major depressive disorder. At [84] she talks of the matters that I have spoken about as to when he was a child and at [86] she said this: 'When he reported the onset of persistent depressive disorder in 2010 in response to chronic workplace stress, his onset of criminality coincided with reported exacerbation of that mood and the major depressive already following the breakdown of the marriage.' As I have said as demonstrated in his prior offences. 17. At [88] it was noted that the precursor to the breach of Judge Smallwood's order was his reported experiencing of renewed psychological stressors, workplace stressors and relationship difficulty which caused a reoccurrence of his MDD, which is of course the major depressive disorder, when he apparently in February 2024 was placed on stress leave. As said at [89], given the absence of a structured mental intervention, his depressive symptoms continued to escalate culminating then in the relapse into the stimulant use disorder, and consequently obviously the breaches of Judge Smallwood's order and the criminality that I am dealing with. 18. Ms Cokorilo did not see from the circumstances that the sexual offending involved compulsive patterns of sexual exploitation or entrenched paedophilic interest, but she noted in regard to his depression and drug taking the need for dual treatment of both disorders. Finally at [101], she noted that the chronic depression would create an added burden in a custodial setting and I accept in those circumstances that Verdins both five and six are appropriate and I take those into account. I also take into account as I said this morning the matters that Ms McFarlane set out in her further submission, Exhibit 1A filed today, although as I indicated that seems to me given his age and background, the manner in which he has been treating himself since his marriage broke up, those consequences occur. They will obviously need to be treated. There may need to be specific treatment to unblock the various arteries, but that treatment can be carried out while he is in gaol, and I am sure that as I said there is many people in gaol who have exactly the same condition. 19. Coming then to Bugmy[1] principles, His Honour in his sentencing remarks for the offences in 2022, accepted that his background was such as to bring forward Bugmy principles. I would accept that generally, although I find no connection whatsoever between his background and the commission of the new offences that I am dealing with. Seems to me that his life demonstrates that he was able, despite his background, to carry on his life throughout the period of his association and time he had children and worked hard and was not afflicted at all in those circumstances. The real change in his life is to do with the drug lifestyle that he developed after the separation, although I do, as I have said, take into account Bugmy generally. 20. Ms McFarlane sought as to Charge 1 a recognisance release order and as to Charge 2 and 3 a community correction order, with no immediate imprisonment. Despite the views of the prosecution as to the appropriateness of a community correction order, albeit in a combined way, I do not consider a community correction order within range, especially as he has had two breaches of community correction orders in the past and has subsequently breached the order of Judge Smallwood. 21. In my view in this indictment, the conduct is such that it is simply not possible or appropriate to pass the sentence sought by Ms McFarlane and there must be a period of immediate imprisonment. Looking for statistics to assist on sentencing in regard to the 71AB(1) charge of trafficking drugs to a child for which the maximum penalty prescribed by Parliament is 20 years, there are no figures of senior courts in regard to that crime, that one can utilise. The nearest one can get are statistics available for supply to a child of drugs which is an offence under 71B(1), and the maximum penalty there is 15 years. Those figures show that persons convicted of such crimes, albeit there is not a lot, that 86 per cent of dispositions involved periods of imprisonment. That figure in my view by way of analogy is clearly appropriate for the offence in this case under 71AB(1). 22. Coming then to the breach of the community correction order imposed by

Judge Smallwood on 7 September 2022, unfortunately these breaches occurred within some seven months of the order being imposed, and the offences were consistent with his criminal history. On 6 February 2025 for those offences which breached Judge Smallwood's order he was given eight months' gaol, which he served. 23. Your counsel on your behalf Mr Brown pleaded guilty to the breach charge under s83D of the Sentencing Act and for that offence you will be convicted and discharged. As to s83AS pursuant to sub-s1(d) of that section, I cancel the community correction order and I propose to sentence you in accordance with that provision. As I have previously said this is now your third breach of a community correction order. The breaches were committed from seven months to 11 months, following His Honour's sentence. It is I think instructive to refer to His Honour's statements when he sentenced you and he was positive as to the outcome, or hoped outcome at that time. 24. As I said, these were the sentencing remarks in September 2022 at

[33], he noted that you had spent 375 days apparently, not too certain about His Honour's maths, but he says in the paragraph before that you spent about four and a half months at Odyssey and then left voluntarily. You were not expelled from the program and you left from your own choice. His Honour says you spent therefore 375 days, I will simply take the period of four and a half months that he has earlier mentioned but certainly he took into account, euphemistically as he calls it, Akoka time, and I also do that in considering your sentence for these matters. 25. His Honour went on to say at [33]: 'to remain in Odyssey for a man of your age is a difficult task. But persistence in coming out then then going back in again, you are continually trying over the last year and so that's impressed me. You have in my view, turned your life around.' At [34], 'As I say you've got from the sentence being put into place, you have all the protective factors that one could hope for.' And then finally at [37], he said to you: 'You must understand that should that CCO be breached by any offending resembling this [which clearly you did effect], then the consequences when you are brought back for breach would be serious indeed.' At that stage he had noted the steps you had taken and it is clearly unfortunate that positive outlook did not continue. 26. Finally Mr Brown in sentencing you I take into account the principles detailed by the High Court in DPP v Dalgleish reported [2017] 91A ALJR 1063 and 1075, [64] and [68], where the need for a sentence to effect individualised justice is stressed. The High Court said that the administration of the criminal law involves individualised justice and the imposition of a just sentence on an offender based upon the facts of that particular case. I seek obviously to do that. 27. There are unfortunately difficulties presented to a Court when sentencing for a combined Federal/State offence indictment. I accept the methodology for such sentencing as set out and detailed in The Queen v Swingler [2017] VSCA 305; [2017] 269 ACR 526, at [63]. I cannot help but remark that s51F of the State legislation could have been used albeit the penalty is lesser. Some consideration might be given in future

Mr Prosecutor. 28. MR McKENRY: Yes Your Honour. 29. HIS HONOUR: One of the problems Mr Brown in regard to this sentencing, is that it is quite difficult to get it all right, and what I am going to do after I pronounce sentence on you is give a summary of the sentence to both the prosecutor and your counsel and seek their assistance, to make sure that it's fully understood. As the Court of Appeal said in Swingler, there are particular difficulties when you've got both Federal and State offences combined in a sentence. One hopes one's got it right but it is always necessary to seek assistance. 30. Coming then to the indictment that was before Judge Smallwood, I sentence you as follows. 31. On Charge 1, which was a theft of firearms charge, you will be sentenced to 18 months' imprisonment, which in fact will be an aggregate sentence because I intend to impose the same sentence which therefore will be served concurrently in regard to Charges 2 and 3. That is the theft. And in regard to Charge 3 there was originally as I understand it Mr Prosecutor two separate charges as to firearms, and it is still recorded as separate on his record. But in fact His Honour's reasons indicate that he sentenced him only for three offences and Charge 3 I think must have been an amalgamation of the two possession of traffic, the unregistered firearms, but that is as best as I understand it. 32. So that will mean Mr Brown on that matter, that was before Judge Smallwood, you will be sentenced to a total effective sentence of 18 months on all charges. I set a non-parole period for that offence of 12 months it be noted in the record that I direct the PSD which you have served of 159 days be deemed as service of this sentence. 33. I then come to the indictment that was before me, that is Q11722690.1. Insofar as the State charges are concerned, Charge 2, which I make the base sentence, that is trafficking of a drug of dependence to a child, being a rolled up charge under 71AB(1), you will be sentenced to imprisonment for of two and a half years. 34. In regards to Charge 3, that is possession of child abuse material, you will be sentenced to imprisonment for two years. I cumulate six months of the sentence on Charge 3 with the base sentence of two and a half years on Charge 2, making a total effective sentence for the State charges of three years. It is necessary for me to set, pursuant to s14 a combined non-parole period for both sentences imposed for State offences. That is a new non-parole period for the State offences in both indictments which will be a period of three years. There is insofar as these State offences PSD of 98 days. 35. HIS HONOUR: That then brings me to the Commonwealth offence which was Charge 1 in the indictment that I have just read out, that is to solicit child abuse material and again a rolled up charge. On that matter I sentence you to two years gaol. Such sentence is to commence on 4 July 2028. I order pursuant to s19AC(1) of the Commonwealth Crimes Act that you be released on a recognizance release order after service of 12 months imprisonment on your own recognizance of $2,000 to be of good behaviour for 12 months from the date of your release from prison. Obviously with the pre-sentence detention, the best I can do is start the Commonwealth sentence from the date as I have indicated, which is three years from today's date, with pre-sentence detention it may well be that it starts earlier. 36. HIS HONOUR: All right. You will be released on the recognisance release order, hence the global immediate gaol sentence imposed on you Mr Brown is 18 months for the offences for which Judge Smallwood previously gave you a CCO, three years for the State offences and one year for the Commonwealth offence. That also involves a recognisance release order of 12 months. Hence the total combined immediate period of imprisonment is five and a half years with a single non-parole period of three years. What will have to be taken in regard to that non-parole period of three years is the PSD that you have served of being the 159 days and 98 days. 37. I come then to the requirement of Parliament (6AAA) as to the imposition of a sentence or in this case series of sentences where pleas of guilty have been made and on the assumption that that section applies to a Commonwealth sentence. There are obvious difficulties in given the number of factors that I have had to take into account in Mr Brown's life to sentence to conform with the rule of the Parliament to somehow specify only the sentence that would apply in regard to one matter only, had you not pleaded not guilty. However, doing as best I can, the total effective sentence had you not pleaded would have been a period of seven years with a non-parole period of four and a half years. 38. Can I just express to you it doesn't give me any pleasure, the same as it didn't give Judge Smallwood any pleasure, to contemplate you going to gaol. He, as I said gave you a very optimistic sentence. Unfortunately because of your drug addiction and going back on drugs, his optimism didn't come to pass and it's been necessary for me to in fact put you back in gaol, which is not something that the Court enjoys. All right. So, I'll hand out to counsel now, I don't know whether you remember in Swingler, that they actually set out a table. So it might just assist counsel to look at how I've got to that. (Addendum A) 39. MR McKENRY: Your Honour you indicated the Sex Offenders Registration Order, was the forfeiture order for the two phones, something you would also note? Thank you. I'm getting onto it. 40. HIS HONOUR: Yes. I've signed that. And I was worried there was no forfeiture order for Judge Smallwood's matter, but as those, as I recall those firearms had been stolen by Mr Brown, I imagine they were just returned to the owner. 41. MR McKENRY: I'll have to look into that Your Honour, I don't know offhand. 42. HIS HONOUR: Well I've looked and there's no forfeiture order made in the sentencing remarks. 43. HIS HONOUR: So just trying to talk to Mr Brown in layman's language. If we take 159 and 98. 44. MR McKENRY: Two fifty-seven, yes. 45. HIS HONOUR: So a non-parole period of three years. 46. MR McKENRY: Yes. 47. HIS HONOUR: Of which he has served eight and a half months and then he'll be left with a 12 months recognisance release. 48. MR McKENRY: Well he'll be eligible for parole but yes. 49. HIS HONOUR: Yes. Eligible for parole yes, I can't say he'll get it but Mr Brown just in layman's language the maximum period of gaol that you've been sentenced to for all of these crimes is five a half years with a non-parole period of three years. Unfortunately, one used to be able to be sure about a person getting parole once a Judge had said that and set a figure. Other matters come into it for example, you would not get parole now until you do some form of sex offence training I would understand. 50. But just looking, and Ms McFarlane will no doubt tell you about this but, just looking at raw figures, assuming you got parole at the right time you would have to serve a sentence of three years, less the eight and a half months that you've served. All right? So that's wo years and three and a half months for all of the offending. 51. MR McKENRY: Honour pleases. 52. HIS HONOUR: Thank you. 53. MS McFARLANE: As Your Honour pleases. 54. HIS HONOUR: Thank you. Yes good luck Mr Brown. When you get out, don't get back on those drugs they don't mix well with you. All right. 55. MS McFARLANE: Thank you Your Honour. 56. HIS HONOUR: Thank you for your assistance for all the matters that we've had this month. 57. MS McFARLANE: Thank you Your Honour. 58. HIS HONOUR: I should say that the record of orders signed by me in Morwell on the 4th July 2025 caused some confusion with the sentencing authorities. 59. On the 18th July in Melbourne pursuant to s 104A(1)(b) I amended the record of orders to overcome such confusion.

Possess Traffickable Quantity of Unregistered Firearms 1

Pursuant to s14 set a new non-parole period for both Indictments of 3years

Solicit child abuse material using carriage service

Order pursuant to s 19AC(1) that after the service of 12mths gaol of the Cth sentence, Mr Brown be released upon a 12 mth recognisance, to be of good behaviour, on his own recognisance of $2000.

Such release to begin upon the date of your release from prison after the service of the prison term for the Cth offence.

The global immediate gaol sentence imposed upon Mr Brown is:

• - 3 yrs for State offences 2+3
• - 1 yr for Cth offence, + plus a recognisance release of 12mths.

Hence the total immediate gaol combined sentence is 5 ½ years, with a non-parole period of 3 yrs.

s 6AAA, on the basis that such applies to Cth offences, had Mr Brown not pleaded guilty, doing as best as I can to comply with the direction of Parliament, I would have imposed total effective sentence on both Indictments of 7 years with a non- parole period of 4 ½ years.