R v Bradey [2009] VSCA 169

2 On 16 January 2008, the appellant pleaded guilty in the County Court at Melbourne to one count of performing an indecent act with a child and two counts of sexual penetration of a child under the age of 16 years who was under his care, custody and control.

3 On 18 January, he was sentenced to be imprisoned for 12 months on the first count and 30 months each on the second and third counts. Four months of the sentence on Count 1 and 9 months of the sentence on Count 3 were ordered to be served cumulatively upon each other and upon the sentence on Count 2. The total effective sentence was 43 months with a non-parole period of 24 months before the appellant would be eligible to be released on parole. In relation to Count 3 he was sentenced as a serious sex offender and that was noted in the records of the court.

4 The appellant was declared to be a serious sexual offender with respect to Count 3 and pursuant to the Sexual Offenders Registration Act 2004 he was declared an automatically registrable offender for 15 years.

5 The facts of the case were opened by the prosecution in detail and were found by his Honour as follows:

The victim in this matter, [KC], was 12 years old at the time of your offending. You were her uncle by reason of being her mother's brother and were 35 years old at the time. You lived by yourself in Narre Warren following the break-up of your marriage some years earlier.

On Saturday 6 January 2007 the victim and her 14 year old brother Peter flew from Adelaide to Melbourne to stay at your house for a holiday. During that time the victim was under your care and supervision as you were the responsible adult in the household. It had been planned for the victim's mother and grandmother to join the family on holiday the following week.

On Monday 8 January 2007 the victim was watching television on the couch in the loungeroom. Her brother was present and you sat with her. You had some moisturiser which you applied to your feet and hands and asked her whether she wanted you to apply some moisturiser to her. You then proceeded to rub her feet and lower leg whilst her legs were resting on yours. You then moved your hands further up the victim's legs above her knees which caused her to move them away from you.

Later that night after the victim had retired to bed, you entered her bedroom and told her that you wanted to do another massage. The victim was lying on her stomach. You proceeded to rub her feet and legs with moisturising cream you had brought in with you. You then removed her clothing.

The victim states: 'I asked him what he was doing and why. He said it was OK, that he wasn't doing anything wrong, that he was just giving me a massage. He told me to turn over so I did what he asked. Then he started poking around. He was touching my vagina. He wasn't just touching it, he put his fingers inside me. He put two fingers inside my vagina. I didn't have the courage to tell him no because he is very strong'.

When interviewed by police you admitted that you had penetrated her vagina with one finger for maybe 10 or 15 seconds, and you told the police that the whole episode took probably 10 or 15 minutes.

Count 1 represents your conduct in touching and rubbing her vagina. Count 2 represents you digitally penetrating her vagina. Count 3 during these activities you also penetrated the vagina of the complainant with your tongue. That is the basis of Count 3. [1]

6 The appellant made application for leave to appeal under s 582 Crimes Act 1958, which was granted by Nettle JA on 28 November 2008.

1. The individual sentences, total effective sentence and non-parole period are manifestly excessive.

2. The learned sentencing judge erred by finding that an aggravating feature of the applicant's offending was that the complainant was in the applicant's care, that the applicant had a duty to protect the complainant and that the applicant abused his position in order to offend against the complainant, when these features of the applicant's offending were constituent elements of the offences to which the applicant had pleaded guilty and, in themselves, warranted a higher maximum penalty than would otherwise have been the case. (Sentence at para [39]).

3. The learned sentencing judge erred by failing properly to take into account the fact that the applicant had attempted to castrate himself as a result of his offending. (Plea at T24).

4. The learned sentencing judge erred by finding that the applicant was intentionally attempting to minimise the extent of his offending to police in his record of interview. (Sentence at [33]-[35]).

5. The learned sentencing judge erred by failing properly to apply the sentencing principle of totality, and, in particular erred by ordering that 9 months of the sentence imposed on Count 3 be served cumulatively upon the other sentences.

8 Counsel who appeared for the appellant argued the appeal before us by first of all concentrating on Ground 3. The ground was that the learned sentencing judge failed to take into account the fact the appellant had attempted to castrate himself. Counsel submitted that conduct showed a remorse of a particular and powerful kind.

9 The material put before the learned sentencing judge on that issue was:[2]

He was still drinking heavily at that stage and whilst he was intoxicated he made a decision that he would castrate himself. He set up a makeshift surgery at home, equipped himself with some sort of sharp knife or scalpel and tried to cut off his testicle. He passed out during the course of that, woke up, grabbed a towel to staunch the bleeding and the next day he decided that he would go and see his GP. He didn't go to see his GP, Your Honour, asking for assistance in treating the wound that he'd caused, he went to the GP asking if either she would, or if any doctor that she could refer him to would in fact perform a surgical castration for him.

He instructs me, Your Honour, that his GP in fact did give him some referrals to other doctors, but impressed upon him that it was a better course to be referred to a psychologist and seek counselling. The doctor referred him to the Monash Psychological Centre and starting in March of 2007 he started attending sessions there.

10 The next material on the subject was to be found in the letter from Mr Stefan Luebbers, a clinical psychology intern at Monash University who, under supervision, saw the appellant. In his letter, which was Exhibit 3 on the plea, he said:

I write to confirm that [RB] was voluntarily referred to the Clinical Psychology Centre, in February 2007, by his General Practitioner. He was assessed on the 6th March 2007, with a presenting problem of depressed mood and seeking 'castration', in the context of being charged with a sexual offence against his niece.

[RB] subsequently engaged in a behaviour change intervention for sex offending and concurrently received treatment for depression. He was seen for ten sessions over the course of four months, before treated was ceased on 16th July 2007. Treatment ended due to me finishing my internship at the Clinical Psychology Centre. [RB] was offered ongoing treatment with another clinician, however he declined this offer.

[RB] made progress during these sessions and presented with potential for continued behaviour change.

I hope this will be of some assistance to the court.

11 For completion, in his report dated 15 January 2008 (Exhibit 4 on the plea), psychologist Mr Michael Crewdson, said at page one:

He told me that he had made an initial - but apparently tentative - attempt to remove his own testicles. He had hoped to die, he said. His subsequent attendance on his general medical practitioner seeking a referral for surgical castration led to referral to the forensic clinical service at Monash University.

However, the overall pattern of scores and the originally catastrophic nature of your client's shame driven response when he was seeking medical castration to render him asexual suggested a marked degree of psychological vulnerability.

13 It is true to say that the learned sentencing judge did not advert directly to the appellant's attempted castration but it is not at all clear on the material how serious his attempt was or what direct medical treatment was needed. It does not appear to have been much.

14 However, the following matters are referred to by his Honour :

I turn to factors in your favour.

1. Your plea of guilty was entered at an early stage, has not required the victim to give evidence in a trial and entitles you to a sentencing discount.

2. You have no prior convictions.

3. You were cooperative with the police and made admissions during a record of interview.

4. You have insight into your criminal offending and have sought treatment voluntarily (see Exhibit 3, a letter from Mr Lubis).

5. You are compliant with medication to control your anxiety and depression.

6. You are in full-time employment.

7. You have engaged in counselling dealing with sexual offending and depression.

8. You have, according to your instructions, reduced your alcohol intake and abusing painkillers to manage your back pain.

9. You have good prospects for rehabilitation.

10. You are in a relationship which has had a stabilising influence on you.

11. You have made a contribution to the community as a member of the SES.

12. You are remorseful.

13. You have taken some steps towards rehabilitation.

14. The offending occurred at a low point in your life when you were anxious, depressed, isolated and with little or no support structure in the community.

15. You face a term of imprisonment for the first time in your life at the age of 36.

Any such term to be immediately served is likely to be served in protection due to the nature of the charges that you face, and this will make imprisonment more onerous on you than if you were able to remain in the general prison population.[3]

15 There mere fact that the question of castration has not been separately averted to is of little consequence as it formed a prominent part of the plea and was necessarily subsumed by those matters averted to and in particular factors 4, 5, 7, 12, 13 and 14 above.

16 I would not regard Ground 3 as having been made out.

Ground 4 - An attempt to minimise in the record of interview

17 The question of frankness in the record of interview arose in this case because counsel for the appellant said on the plea (Plea T10-11):

Perhaps unusually, Your Honour, that level of self disgust and dismay at his own actions has been harnessed into profound and I hope to convince Your Honour very meaningful efforts of rehabilitation prior to this matter

coming - - -

18 The following exchange then took place (Plea T11-13):

HIS HONOUR: There's a fair hint of minimising the conduct in his record of interview, isn't there?

MR MARSH: To an extent, Your Honour. That said, he - - -

HIS HONOUR: To a large extent.

MR MARSH: Well, he certainly, without any prompting from the police, he describes what happened. He said that he touched her inappropriately.

HIS HONOUR: He doesn't give a truthful account, if you read the complainant's statement and accept that. In other words, he minimises his - he says it's a momentary thing that occurs very quickly. He talks about how the complainant voluntarily removes her clothing. A whole range of things. He doesn't disclose all that he was up to. There's a whole range of matters in the record of interview which go to minimise what actually occurred.

MR MARSH: I don't necessarily take issue with Your Honour's comments. Some of those are no doubt due to effectively difference in perspective between the two participants in what occurred.

HIS HONOUR: There's more than a perspective - - -

MR MARSH: I accept that.

HIS HONOUR: When one is on the bed or on the side of the bed, a 35 year old man with his 12 year old niece, where he's got his penis out, and where he's between her legs and at the very least inserts his - he sucks her vagina and puts his tongue in her vagina. That seems to slip his mind when he's telling the police about what actually - - -

MR MARSH: Look, that's so, Your Honour, and the record of interview makes no reference to the oral penetration.

HIS HONOUR: No.

MR MARSH: Your Honour may be aware this matter proceeded through the Magistrate's Court in the committal stream. It was listed for what's known as a committal case conference and there were two such hearings prior to this matter resolving to the current presentment.

The issue in those committal case conferences was really that issue of the oral penetration. My instructions were at the time, and I acted for him at that time, that whilst he had no recollection of the oral penetration occurring, he didn't dispute what the victim said, and perhaps, more importantly, Your Honour, he made it very clear at that stage that he had no desire to put the victim to her proof. He had no desire to take it any further. So there was certainly an issue about that particular - - -

HIS HONOUR: But all that might be a relevant matter. It might be an indication which you're seeking to establish, however, what I was really taking issue with was your assertion that he went to the police and in a fit of remorse and shame disclosed all. He did - - -

MR MARSH: Your Honour, I don't recall having said that he disclosed all, but there's certainly a very profound tone of remorse and shame through the interview. At every opportunity he not only professes his disgust at his own actions, but as the prosecutor quite rightly pointed out, absolved the victim of any responsibility - - -

HIS HONOUR: That's the prosecutor's view of what the record of interview reads like, but if you analyse what he says in the record of interview he, in my view, at least, does endeavour to involve the complainant in consensual activity by things like saying that, and I haven't got them all here, but I can take you to them, and no doubt we'll be able to debate them, the fact that she requested him, for example, to start the moisturising process. Then she requested a further massage. She took her clothes off, took her top off, and then her bra off, and seemed to be lying there, half asleep and not objecting, and not - if you read the record of interview it does, in my view, seek to involve the complainant in consensual activities.

19 It was not contested that what his Honour said fairly represented the record of interview.

20 The sequence of events after the offending were set out in the Sentence:

The next day you spoke to the victim and told her you were going through a rough time and that she made you happy. You bought her what she referred to as a 'sorry gift', which was a Nintendo electronic game with accessories worth about $300.

The following day you saw the victim in the kitchen, who was recounting what had occurred to her brother. You told them to keep the incident to themselves and not inform their mother. You told them that you would kill yourself if anyone was to find out about your sexual assaults.

On Thursday 18 January you contacted the Narre Warren police station after you became aware that the victim's mother knew of the sexual assault and that she could not be persuaded from taking the victim to the doctor. You rang the police anonymously and obtained some advice. You then returned home and again asked the victim's mother if she was determined to go to the hospital. She advised you that she was so determined and you then told her that you were going to turn yourself in to the police, which you did.

You were interviewed by the police. In a record of interview you admitted to digitally penetrating the vagina of the complainant and touching her breasts, vagina and buttocks. You also told the police that you took your erect penis out at some stage whilst you were sitting on the bed and rubbing her but told police the victim was not looking.

You expressed remorse and preparedness to take responsibility for what occurred. However, during that record of interview you did not tell the police that you had also penetrated the victim's vagina by the insertion of your tongue.[4]

21 In that context, it was open to his Honour to make the findings about the record of interview. It was not treated as a matter in aggravation and does not appear in paragraph 39 of the sentence. It was a matter which did go to the question of the immediacy and depth of remorse.

Grounds 1 and 5 - Manifest excess and totality

23 Complaint was then made that the total effective sentence and non-parole period were manifestly excessive and that accumulation of nine months of the sentence imposed on Count 3 offended the principles of totality.

24 It is convenient to deal with the question of totality first. His Honour was obliged to deal with the appellant on Count 3 as a serious sexual offender (see Sentencing Act 1991, ss 6C - 6F). It would, in the circumstances, have been open for him to have imposed a longer sentence on that count since his Honour was obliged on that count to regard the protection of the community as the principal purpose for which the sentence was being imposed.

Your counsel did not take issue with the Crown's submission that if the court imposed a term of imprisonment on Counts 1 and 2 that you qualify to be sentenced as a serious sexual offender in respect to Count 3 on the presentment. This brings into operation the provisions of s.6C, s.6D, s.6E and s.6F of the Sentencing Act and the court is obliged to consider the protection of the community as the principal purpose for which the sentence is to be imposed and every term of imprisonment imposed for a relevant offence must be served cumulatively on any other uncompleted sentence unless otherwise directed by the court.

I have considered these provisions and have determined (a) that it is not necessary to achieve protection of the community by imposing a disproportionate sentence in respect to Count 3 and (b) that there should be some concurrency ordered in respect to the sentence to be imposed on Count 3.

I have come to that conclusion for the following reasons.

1. All of the offences occurred over one course of criminal conduct over a relatively short time.

2. I am not satisfied beyond reasonable doubt that you are a paedophile and represent a significant risk of re-offending in the future.

3. That you have good prospects of rehabilitation.

4. That you are to be sentenced on three counts and the court must apply the principles of proportionality and totality.

I have considered how the sentences to be imposed on each count relate to each other and have determined there should be some cumulation so that the total sentence reflects your total criminality.

Clearly the offences are discrete and involve different types of criminal offending by you.[5]

26 These paragraphs seem to me to be a complete answer to the question of totality.

27 That leaves consideration of the manifestly excessive ground. That ground was put on the basis that his Honour had insufficient regard to:

(a) the pleas of guilty,

(b) the remorse,

(c) the vulnerable state in which the appellant found himself at the time of offence,

(d) the appellant's efforts to rehabilitate himself,

(e) the appellant's having been a victim of abuse as a child,

(f) the fact that the offending took place over a confined period of time.

(g) the material contained within Mr Crewdson's report.

(h) the appellant's major depressive disorder

28 When the sentence is looked at as a whole, his Honour did take all these matters into account. It is important to remember that the maximum penalty on Counts 2 and 3 was 15 years' imprisonment.

29 I do not regard the sentences as manifestly excessive. They are clearly within the range for serious offending of this kind. Grounds 1 and 5 therefore fail.

30 This ground relates to the circumstance of aggravation.[6] The appellant pleaded guilty to two counts (Counts 2 and 3) contrary to s 45 of the Crimes Act 1958, which relevantly provides as follows:

(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

(2) A person who is guilty of an offence against subsection (1) is liable -

(a) ...

(b) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or

(c) ...

...

...

(5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the presentment.

The aggravating features of your criminal conduct, in my view, are as follows.

1. Your criminal conduct is a gross abuse of trust.

2. You were the uncle of the victim who was 12 years of age.

3. The victim was in your care and you had a duty to protect her, yet you used your position to abuse her sexually in a serious way.

4. You were 35 years of age, a mature male and in a powerful position to abuse the victim who was 12, young, vulnerable and who trusted you as her uncle to care and protect her rather than use her for your own sexual gratification.

5. You endeavoured to use your position of power to ensure that the victim did not report your criminal offending.[7]

32 Insofar as the ground complains that the appellant's abuse of his special position was a 'constituent element of the offence' the submission is in error as the terms of s 45(5) make clear that it is not an element of the offence but an aggravating factor.[8]

In a sense, doing so meant that those matters were counted twice and the sentence must have been loaded accordingly.

34 His Honour the learned sentencing judge had noted at the commencement of his reasons that the offence to which the appellant had pleaded included 'sexual penetration of a child under the age of 16 years which child was under your care, supervision and authority', for which the maximum penalty was 15 years.

35 For my part, I do not think that the listing of the aggravating features of the offending did mean that there was 'any loading' or some notion of double penalty.

36 The reasoning of Phillips JA in R v Rae[9] (with whom Batt and Chernov JJA agreed) is apposite:

The foregoing, which is taken from the careful and comprehensive sentencing remarks of the judge, was the basis upon which the appellant was sentenced. In referring to the maximum penalty, the judge said this:

'The offence to which you have pleaded guilty is a very serious offence. It attracts a maximum penalty here, as I say, of 20 years' imprisonment because of the involvement of children. A few years ago Parliament increased the maximum penalty from 15 to 20 years for trafficking such as this, where children were involved.'

After then quoting a passage from Pastras[10] about the harmful effects of marijuana, the judge continued:

"Here, as I say, your criminal behaviour was aggravated by the fact that school children were involved. Apart from the harmful effect of marijuana use as referred to in Pastras you introduced these children to the drug culture. We regularly see in these courts that users of harder drugs such as heroin, commence their drug usage with cannabis and then move up the scale to harder drugs. Our Court of Appeal has stated on many occasions over the past few years that drug trafficking deserves condign punishment."

I have set this out in full because it is the genesis of the second ground of appeal which was argued before us: that the judge erred in treating the fact that the appellant had trafficked in the drug to children as an aggravating circumstance. According to the outline of argument that was submitted the other day, the appellant's submission was that in creating the offence for which he was convicted and then sentenced, Parliament had itself identified trafficking in the drug to a child as one of the elements of the offence and so, it was said, it could not also be, for the purpose of sentencing, an aggravating feature. So to treat it was (it was contended according to the outline) to penalise the appellant twice for the same factor. This morning, however, as the argument developed, it was no longer pressed that the involvement of children was an element of the offence. Rather it was accepted that, much as in Kingswell[11], s.71(1) created that factor an aggravating feature relevant to penalty but not as an element of the offence itself. In those circumstances the error sought to be identified in the outline of argument was not shown, nor, in my opinion, was any error shown at all. What his Honour said was correct, and I do not accept the submission that his Honour, in saying what he did, in some way "counted the aggravating feature twice". In the passage which I have quoted his Honour, on the second occasion when he referred to trafficking to children, simply recapitulated what he said on the first. Accordingly, in my opinion, ground 2 fails.

37 Although some differences might be discerned between what was said by the Court in Rae and what was said by Winneke P (with whom Batt and Vincent JJA agreed) in R v Satalich,[12] it would only turn on whether or not the circumstances of aggravation in that case ought to have been regarded as elemental. In that case his Honour said:

It follows from what I have previously said in these reasons that, respectfully, I cannot agree with the views expressed by McGarvie, J. in Kardogeros. Kardogeros was referred to in a more recent decision of this Court in Coviello[13] in which the applicant had been found guilty by a jury of trafficking in drugs of a quantity not less than a commercial quantity. The presentment expressly alleged this circumstance of aggravation and, as the Court of Appeal (Phillips, C.J., Hayne, J.A. and Crockett, A.J.A.) said:

"The jury was correctly told that it had to determine if the Crown had proved this allegation beyond reasonable doubt."

As in the matter which is presently before us, the only issue in Coviello was as to the "quantity" trafficked. The Court allowed the appeal on the basis of insufficiency of directions given by the judge on this issue, it being the applicant's case at trial that, although the total weight of cannabis recovered was greater than the applicable commercial quantity, the evidence advanced by the Crown was inadequate to prove that he had such a quantity "in his possession for sale". The trial judge had effectively removed this issue from the jury's consideration on the basis of certain statements made by the majority judges in Kardogeros. The Court concluded that the trial judge was wrong to have done so because Kardogeros was "critically different" having regard to the fact that the applicant in that case had pleaded "guilty" and had "thereby admitted that he had in his possession for sale a quantity of the substance which was in excess of [the commercial quantity]".[14] However, in the course of its joint judgment in Coviello, the Court[15] had approved certain statements made by the trial judge whilst ruling against a submission by the applicant's trial counsel that he should remove the issue of "quantity" from the jury's consideration. In the course of his ruling, his Honour had said (inter alia):

"... this Act does not ... draw any distinction between crops which are fresh and crops which are dried. If the total amount of the plant is in excess of [the commercial quantity] at the time when the Act operates ... then the person responsible for it has in fact trafficked in a commercial quantity, that is to say has committed the aggravated offence ..." [Emphasis added]

The Court of Appeal said of these instructions (at 296):

"No doubt what the judge said was correct. But it did not deal with the point that is in issue now."

The views expressed by the Court are, as it seems to me, consistent with the view which I hold that, if the Crown wishes to subject the accused to the penalties provided for by paragraphs (a) and (ab) of s.71(1) of the Act, it must allege and prove to the jury's satisfaction to the required standard of proof, the circumstances of aggravation which become elements of an aggravated form of the offence of "trafficking" created by s.71(1)(b) of the Act. In a section which is in the form of s.71(1), it would, in my opinion, require clear words from the legislature to oust the common law rule that the circumstances of aggravation are to be regarded as elements of an aggravated form of the offence of trafficking. (See, for example, s.45 of the Crimes Act 1958 (substituted by Act No.67 of 2000) which creates, by sub-s.(1), the offence of "sexual penetration of a child under the age of 16 years", but provides by sub-s.(5) that the "circumstances of aggravation described in sub-s.(2)" are not to be regarded as elements of the offence against sub-s.(1), but "must be stated in the presentment".)

There have been, over the years, relatively few cases where the courts have been called upon to construe sub-s.71(1) of the Act with a view to determining whether it creates more than one offence. This, so we were informed, is because there is usually no dispute as to the circumstances of aggravation which, by and large, are conceded by pleas of guilty. In the recent case in this Court of R. v. Rae[16] it was contended that a sentencing judge had erred in punishing the applicant for an offence of trafficking to children contrary to s.71(1)(ab) by "double counting" the circumstance of aggravation. Apart from the fact that counsel for the applicant appears to have had a misguided view of s.71(1), I can see nothing in the reasons of the members of the Court which suggests a construction of the sub-section contrary to the view which I have expressed. Although Batt, J.A., in rather cryptic reasons, stated that:

"The offence was trafficking, and involvement of children was an aggravating circumstance."

it does not seem to me that his Honour's view is inconsistent with the so-called "aggravating circumstance" being an ingredient of the offence to which the applicant had pleaded guilty. His Honour, however, did refer to the passage in Freckletons "Indictable Offences in Victoria" (4th Edn.) to which I have referred earlier in these reasons, and which, in my view, mis-states the practice which ought to be followed in alleging offences contrary to s.71(1) of the Act. [17]

38 In any event, it does not seem to me that the matters which would be absorbed under the concept of 'care, supervision or authority' would cover all the matters which come under 'breach of trust', a trust which was owed much more widely than to the primary victim.

[6] See [7]

[8] See R v Satalich [2001] VSCA 106; (2001) 3 VR 231, [27] (Winneke P).

[9] [2001] VSCA 64, [6]-[7].

[10] R v Pastras (1993) 65 A Crim R 584.

[11] R v Kingswell [1985] HCA 72; (1985) 159 CLR 264.

[12] [2001] VSCA 106; (2001) 3 VR 231.

[13] R v Coviello (1995) 81 A Crim R 293.

[16] [2001] VSCA 64.

[17] R v Satalich [2001] VSCA 106; (2001) 3 VR 231, [27]-[28].