R v Brown - [2024] NSWDC 618 - NSWDC 2024 case summary — Zoe

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R v Brown

[2024] NSWDC 618

District Court of NSW|2024-12-17

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-12-17

Catchwords

[2013] NSWCCA 115 Barbaro v The Queen [2014] HCA 2
(2010) 242 CLR 520 Hillman v R [2012] NSWCCA 43 Hoskins v R [2016] NSWCCA 157 MAK v R
MSK v R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25
(2005) 228 CLR 357 Mill v The Queen [1998] HCA 70

Source

Original judgment source is linked above.

Catchwords

[2013] NSWCCA 115 Barbaro v The Queen [2014] HCA 2(2010) 242 CLR 520 Hillman v R [2012] NSWCCA 43 Hoskins v R [2016] NSWCCA 157 MAK v RMSK v R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1998] HCA 70(1988) 166 CLR 59 MK v R [2024] NSWCCA 127 Munda v Western Australia [2013] HCA 38(2013) 249 CLR 600 Postiglione v The Queen [1997] HCA 26(1997) 189 CLR 295 R v Burrell (2000) 114 A Crim R 207 R v Cahyadi [2007] NSWCCA 1168 A Crim R 41 R v Clinch (1994) 72 A Crim R 301 R v Fisher [2024] NSWCCA 191 R v Harris [2007] NSWCCA 130171 A Crim R 267 R v Herring (1956) 73 WN (NSW) 203 R v Holder(2015) 256 CLR 550 Towse v R [2022] NSWCA 252 Van Ryn v R [2016] NSWCCA 1 Xerri v The King [2024] HCA 5

Judgment (49 paragraphs)

[1]

[8]

Maximum penalty and standard non-parole period

At the relevant times the following maximum penalties applied to the offences against Emily:

Sexual intercourse with child between 10 and 16 years, s 66C(2) Crimes Act, had a maximum penalty of 10 years penal servitude.
Aggravated indecent assault child under 16 years, s 61E(1A) Crimes Act, had a maximum penalty of 6 years penal servitude.
Aggravated incite person under authority to an act of indecency, s 61E(2A) Crimes Act, had a maximum penalty of 4 years penal servitude.
Aggravated incite person under 16 years to commit act of indecency, s 61O(1) Crimes Act, had a maximum penalty of 5 years imprisonment.
Possess child abuse material, s 91H(2) Crimes Act, had a maximum penalty of 5 years imprisonment.

I apply the maximum penalties available at the time the offences were committed: Crimes (Sentencing Procedure) Act 1999 (NSW), s19(1). In doing so I must apply the sentencing patterns and practices at the time of sentencing: Crimes (Sentencing Procedure) Act, s21B.
Close attention to the maximums is required. They indicate how seriously Parliament, on behalf of the community, view offences of their type. They are important guides to the exercise of my sentencing discretion.
When I sentence for the s 66EA offence I note that the maximum penalty was increased to life imprisonment when the section was redrafted in 2018: Xerri v The King [2024] HCA 5; (2024) 278 CLR 276.
I must also take into account the maximum penalties for the unlawful sexual acts engaged in by the offender during the period the unlawful sexual relationship existed: Crimes Act, s 66EA(8). Here, for sexual intercourse with a child under 16 pursuant to s 66A Crimes Act, the penalty was 20 years imprisonment. An act of indecency offence pursuant to s 61O(1) Crimes Act, had a maximum of 5 years. An act of indecency offence pursuant to s 61M(2) Crimes Act, had a maximum penalty of 10 years.
I note however that where a large number of individual acts are said to establish the unlawful sexual relationship, the particular maximum penalty for an individual unlawful sexual act may not be of particular importance when all relevant matters are considered: R v Fisher [2024] NSWCCA 191 at [127].

[11]

Basic principles

A sentencing judge has an obligation to address all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J). As I will be imposing an aggregate sentence, I must also nominate indicative terms for each offence, taking into account Forms 1 where applicable. I must assess the objective criminality of each of the matters for sentence individually. Each sentence indicted must be proportionate to what was done. An assessment of objective seriousness is essential in setting the parameters of an appropriate sentencing outcome.
Some of the matters relating to Emily were of very similar objective criminality and there is little to distinguish one example of one specific offence from the other of its type. For others, the more serious the offence, the impact of the physical acts and the greater the maximum penalty, the greater the indicated sentence.
So far as Jane is concerned, all of the various sexual crimes committed against her must be taken into account.
I do not find it helpful to express my opinion about the objective seriousness of an offence by nominating a point on the scale of seriousness by reference to a notional mid-point. To do so, with respect to those who think otherwise, creates an impression that sentencing involves a staged approach, or requires oscillation around, or additions and deductions from, some notional mid-point.
To the extent that others find such labels helpful, I agree with Brown's submissions that the offence involving Jane was above mid-range.
Brown also submitted that the each of the instances of offending against Emily, fell into the mid-range, so far as each type of offence was concerned. That submission can be accepted.
Each of the offences against Emily were serious. The offending against Jane was a very serious example of what is already an offence so serious it carries a maximum penalty of life imprisonment.
There is a simple, and what should be an unambiguous reason, for why all these matters must be treated as objectively serious, there an absolute prohibition on sexual contact with a child. That prohibition recognises the profound harm exposure to premature sexual activity can cause.
Here, the offender had assumed the fatherly role in the life of two young girls. He professed to care for them and take an interest in their wellbeing, however he exploited each child for his own sexual interests. He thought only of himself, and in doing so, caused his stepdaughters immense harm.

[23]

Sequence 47 - Persistent sexual abuse of a child

Sequence 47 involves a count of maintaining an unlawful sexual relationship with a child / Persistent sexual abuse of a child pursuant to s 66EA(1) Crimes Act. Between 18 March 2013 and 18 March 2021 when Jane was aged between eight and 15 years old, the offender maintained an unlawful sexual relationship with her.
There are also matters on the Form 1, Sequences 7, 42, 44 and 46, to be taken into account.
Jane was born in another country in 2005. Her mother visited Australia in 2004 and met Brown. They married in 2007. In 2008, when Jane was two or three, she came to Australia and lived with her mother and the offender.
The offender regularly engaged in the following unlawful sexual acts with Jane:

Touching and / or rubbing Jane's naked genitals on multiple occasions;
Inciting Jane to adopt sexual poses, including exposing her naked genitals, towards him on multiple occasions;
Masturbating toward Jane and ejaculating on her body on multiple occasions;
Jane performing fellatio on him on multiple occasions;
Pushing his penis against Jane's vagina on multiple occasions;
Penile-vaginal sexual intercourse on multiple occasions;
Performing cunnilingus upon Jane; and
Inciting Jane to masturbate toward him.

Specific instances of these unlawful sexual acts are set out in the Agreed Facts.
The unlawful sexual relationship began when Jane was eight years of age. The offender came into her bedroom. The offender got into her bed and said, "I want to try something". He put his hand inside her underwear and rubbed the outside of her vagina. She did not say anything. After he got up, he said, "Don't say anything to your mum".
Over the next couple of months when Jane was still eight years old, the offender came into her bedroom a few times and did the same thing.
A few months later while Jane was still eight, she was home with the offender and her mother was out, Brown showed her a pornographic video on his phone of a young female performing fellatio on an older male. The offender told her, "Watch this I want you to try and do this with me". The child did not understand. The offender said, "I just want you to watch it". Later he told her, "Don't tell mum about the video".
When the complainant's mother was not home Brown showed Jane further pornographic videos. The pornography often depicted young Asian women performing fellatio or engaging in penile vaginal sexual intercourse on or with older Caucasian males. The offender would say, "This is what I want you to do to me".
In 2015, when Jane was nine and home alone with the offender, the offender showed her pornography on his phone. He then took out his penis and said, "Suck on it". Jane replied, "That's gross".
The offender then had her assume what he told her was the "positions", that is, to get on the bed on all fours in front of him. He instructed her to arch her back more or spread her legs more. She did what the offender said because she was scared. He ejaculated on her back. He wiped her back and said, "Go get dressed and act normal".
Following this, the offender had her get into "positions" one or two times a week. Sometimes the offender would rub her on the outside of her vagina. The offender would wear a singlet and no pants. Sometimes the complainant would be naked during the "positions" or other times wear a t-shirt or her school shirt. At the end of the act the offender always ejaculated on the victim's back, stomach or vaginal area.
When Jane was nine and during a "positions" time on the bed the offender put his erect penis to Jane's face and said, "Suck it". She said, "No". He persisted. She eventually performed fellatio on the offender. He ejaculated in her mouth. After this occasion the offender would make Jane perform fellatio on him in the bedroom. Most of the time the act would continue until the offender ejaculated.
In 2014 when Jane was nine the family went overseas for a short holiday. The offender positioned Jane naked on all fours on a bed. He was naked. He rubbed his erect penis against her vagina. He pushed his erect penis very hard against her vagina and ejaculated on her back. He said, "I want to put it 'in' and 'act normal'". On a number of further occasions while they were overseas, he made her assume the "position" and perform fellatio on him. On these occasions the offender continued to try and insert his penis into her vagina, but it would not go in.
After they returned home the offender arranged for her to watch pornography and perform fellatio and "positions" on the bed whilst he touched or rubbed her until he ejaculated. He continued to try and insert his penis in her vagina.
At the end of 2014, Jane said to the offender, "I don't want to do this next year". The offender did not respond.
In 2017 Jane's mother moved out of the family home. She and the offender shared custody of the children, including Jane.
Brown commenced proceedings in the Family Court of Australia in relation to custody of the children. At this time, he demanded more frequent sexual activity from Jane. If she did not comply, he would refuse her food and physically assault her. The offender would watch Jane in the shower and take photos of her in the shower using his phone.
During the sexual activity Jane would ask "When does this stop?" and "when will you leave me alone?" The offender would reply, "It's not forever".
In early 2019, when she was 13 or 14, Jane's mother wanted her to stay with her. The offender said, "No, because she helps me with the other kids, and she helps around the house so she should stay to help me".
In December 2019, when Jane she was 14, the offender sent her a Snapchat message telling her to come to his bedroom. When she did, he locked the bedroom door. She started performing fellatio on the offender. After a while the offender said, "You're old enough … I want to put it in". The offender pulled Jane onto the bed and took off her pants and underwear and sat her on his erect penis. She said, "It hurts". He replied, "It's just going to hurt for now and then it'll get better". The offender moved her up and down and then took her off him and made her fellate him until he ejaculated in her mouth. The following day the offender said, "How do you feel now?" Jane said, "It feels uncomfortable".
At a different time on that date the offender filmed a 30 second video of Jane engaged in sexual activity in his bedroom, acting at his direction. Jane was lying naked on her back on the bed masturbating, the offender said, "Honey that's hot": Form 1 Sequence 42 - Sexual act for production of child abuse material, child under 16.
For the next few years, the offender would send Jane messages on Snapchat whenever he wanted fellatio or penile vaginal intercourse. Fellatio continued a few times each week. Penile vaginal intercourse occurred two to three times a month at various locations in the home. The offender sometimes wore a condom, and other times did not. He would often ejaculate on Jane's body.
The offender often filmed himself having sexual intercourse with Jane using a GoPro, his mobile phone, or a video camera. The offender told Jane that when she was at school or with her mother, he liked to watch the videos of her performing sexual acts on him. The offender gave her lingerie to wear for him.
In January 2020 the offender filmed a 23 second video of himself engaged in sexual activity with Jane, who was then 14 years old, in his bedroom. In the footage Jane is on her hands and knees. The offender filmed a close up shot of her vagina and told her to use her fingers to spread her vagina apart: Form 1 Sequence 44 - Sexual act for production of child abuse material, child under 16 years. The offender was masturbating whilst this occurred.
Later in 2021 the offender filmed a 21 second video of himself engaging in sexual activity with Jane, 15 years old, in her bedroom. The offender had his penis in Jane's mouth. He then ejaculated in her mouth: Form 1 Sequence 46 -Sexual act for production of child abuse material, child under 16 years.
In 2022 Jane told the offender she had had a boyfriend but that they had broken up. On numerous occasions the offender woke Jane in the middle of the night probing the victim for information about the relationship and her sexual activity with her boyfriend. The offender made handwritten notes in his diary about some of these conversations.

[25]

Search warrant

On 31 October 2022 Brown was arrested. Police executed a search warrant at his home. During the search a large amount of material was seized. Police located the following in the offender's bedroom:

Safe containing digital media, Gopro, letters, sex toys, and lingerie.
Significant amount of multimedia devices including; hard drives, SD cards, DVDs, tapes some of which were located in a second safe.
In the wardrobe of bedroom 1; various lubricant products and children's costumes, external hard drive and numerous cameras and video recorders.
Numerous writing books and diaries for 2022, 2021, 2020, 2019, 2018 and 2016. The books and diaries contained extensive entries in relation to the offender's sexual interactions with RY. Handwritten entries at the end of the 2019 diary dated "Wed 1st JAN 2020" through to "Mon 13 JAN 20" the entries include descriptions of 11 aggravated sexual assaults against Jane, including penile vaginal intercourse and penile oral intercourse: 1. On 7 January 2020 the offender made an entry, "postella -1 morning after pill $24.95". 2. On 8 January 2020 the offender wrote, "she had pregnancy test - Clearblue came up negative was stressing all night". 3. On 11 January 2020 the entry outlines the offender filming himself sexually assaulting Jane. On 5 May 2020 the offender wrote, "Punch periods" and on 19 April 2020 "[smiley face] dog & mission".
In a filing cabinet in the hallway numerous handwritten notes in relation to the complainants.
In the loungeroom, a travel bag containing: 1. Multiple devices and over 100 colour polaroid photographs depicting Emily which have been classified as child abuse material: Sequence 35 - Possess child abuse material. These are the polaroid photographs described above. The earliest polaroids commenced in 1988 when Emily was ten years old through to 1992 when she was 14. The offender had possessed these polaroids for 34 years. 2. The travel bag also contained a DVD created by the offender on 29 October 2015 and labelled "[Emily]". The DVD contained a compilation of a number of the colour polaroid photographs: Sequence 35 - Possess child abuse material.
Various digital devices were located which contained recordings of the offender's sexual acts with Jane: 1. The earliest recordings were made in August 2016 and most recent recordings in September 2022. The recordings were filmed from a CCTV camera located in the top right corner of the offender's bedroom or from a GoPro worn by the offender or placed on a solid surface, or the offender's mobile phone. 2. On occasions the offender would get her to hold a selfie stick or set up video camera on a tripod at the end of the bed. 3. In a number of the videos Jane is crying as she is being sexually assaulted. 4. In one video as the offender is engaged in fellatio with Jane he said, "If you want dinner tonight you have to swallow". In another video Jane asked the offender "Daddy why do you do this to me? Is it to teach me how to be a wife?".

[28]

Offences against Jane - Maintain a sexual relationship with a child

An offender "maintains a sexual relationship" if there is a course of sexual activity, involving successive acts committed frequently enough to provide an element of connection and continuity so coherent that the sexual activity may be seen to be maintained by the perpetrator: R v RB [2022] NSWCCA 142 at [54].
The gravamen of the offence is maintenance of unlawful sexual relationship with child, not any of the identified "ingredient offences": RA v R [2024] NSWCCA 149. The offender is to be sentenced for all his admitted behaviour that informs how a lawful relationship was transformed into an unlawful one and how that unlawful sexual relationship developed over time.
Sentencing for such matters requires a different approach to that involved in sentencing for a series of offences relating to a course of conduct, such as those relating to Emily. I am required to address the nature and extent of all the offending behaviour relevant to the unlawful sexual relationship: R v Fisher [2024] NSWCCA 191.
Again, the foundational premise, and one reason for the high penalties available and imposed, is; the absolute prohibition on sexual activity with a child.
Factors that bear upon an assessment of the objective seriousness or gravity of the offence were recently restated in RA. Here relevantly they include:

The offender was omnipresent in the child's life;
So too was the unlawful sexual relationship which continued for many years from when Jane was eight until she turned 16;
The offender was the child's stepfather and father of her sibling;
The lawful relationship should have been one of trust or authority;
The acts occurred in the child's home or the place she had gone for family access visits;
There was a significant age and power differential between the offender and child;
The first acts of oral intercourse occurred when the child was nine. Penile vaginal began when she was 14. The act hurt her. He was aware of the risk of pregnancy;
The number of unlawful sexual acts was very high, and they occurred frequently;
The nature of the unlawful sexual acts encompassed the gamut of sexual activity;
The degree of physical contact degradation involved is of considerable significance as is the fact that the acts both persisted and escalated in seriousness;
The fact the acts were accompanied by coercion;
In addition to the threats and pressure not to reveal what was happening, the fact the offender sought the child's complicity in hiding what was occurring;
Some acts were recorded but care must be taken as this matter has already been taken into account on the Form 1; and
The unlawful relationship existed wholly or partly before the commencement of the relevant amendments, being 2018.

All of the admitted facts and other material tendered establish the nature of the unlawful sexual relationship Brown had with Jane. He never considered his role in her life was as her stepfather. He used Jane as a sexual object for his own personal gratification. That exploitation became worse and more frequent as Jane got older and turned 16. This was a particularly serious or gross example of this offence; an offence that carries the most serious maximum penalty available.

[31]

Subjective case

Brown did not give evidence. He wrote a letter to the Court. He wrote about his shame and said he was "deeply sorry and remorseful". He said he now realises the "huge impact" his acts would have had. He refers to his receiving "a lot of treatment". He says he is learning about what led to his offending. He claims to "now understand about [his] offending behaviour". He promises to "work hard" in treatment and "keep learning". He said that he wishes he had the help he now gets when he was young and that he is "trying very hard to become a much better person".
It is hard to give any weight to these remarks. All I can say is these comments are too little and came too late.
His promise to continue in treatment must however be recognised. He has taken positive steps toward change and that 'practical remorse' must be recognised.
His family provided references. They speak uniformly of their shock and surprise, at the crimes he committed. They offer continued support noting, "he is still [our] brother". It is hoped that support can continue until he becomes eligible for parole, as pro-social support will be required if he is to adjust to normal community life on release.
There is a letter indicting Brown is attending chapel at gaol.
Brown's personal history is not controversial. He was born 1963. He grew up in large supportive family. His father was very strict and disciplined him severely. His mother remained in the home but was described as an "angry person".
At school Brown had learning difficulties and poor comprehension skills. He left when he received his school certificate. He worked in heavy industry until 2022. He earned tickets as overhead crane driver. A work injury impacted on his capacity to keep working. And eventually had to stop work. He was in receipt of workers compensation payments at the time he was arrested. He still suffers from the effects of that injury and requires medication.
He married Emily's mother 1983. He had children, and now grandchildren. He was with Jane's mother from 2004. She is from an Asian country. She had children, and they have children. They separated 2017 but shared custody of the children.
He is described as a socially anxious and immature, a person who has has always felt "different". In custody will be eligible for sex offender programs but he will find participation in group sessions difficult. Disturbingly the reports indicate that he regarded Emily and Jane as "his girlfriends" and professed to love them. He never considered his role was that as their "father".

[36]

Ill health

The reports indicate Brown has a number of chronic medical and psychological conditions in addition to those noted above. He suffers from; anxiety, low self-esteem. He is solitary.
He has sleep apnoea. He uses a machine to help him sleep. That machine requires an electrical connection and as it makes a noise that would disturb cell mates' sleep. Brown will have no choice as to whom he shares a cell with.
He has the following conditions that require treatment and medication:

Hypertension;
High cholesterol;
Diabetes;
Complications from gastroesophageal reflux;
Lumbar spine issues - disc protrusion and advanced joint atrophy; and
Chronic work related back pain.

He is not permitted to take opioid medications while in gaol. The analgesics available to him are not as effective for pain relief as those he could access in the community.
Mr Randall notes that Brown's experience of custody is particularly onerous: "[Brown's] presentation, anxiety, and medical complaints suggests that he is a particularly vulnerable person. The custodial environment is a particularly difficult environment for the average offender … The custodial environment appears to be significantly exacerbating his already fragile and vulnerable mental health. Poor mental health is a factor in reoffending, and as such, subjecting him to a situation that increases this vulnerability, potentially has the impact of increasing his risk of reoffending.": par [43].
A person cannot escape just punishment because of their ill health but I can, and will, take into account the extra burden for him during his custody by reason of his chronic and debilitating conditions: R v Smith (1987) 44 SASR 587. Ill health can justify a finding of special circumstances: R v Sellen (1991) 57 A Crim R 313.
The fact of his offending makes him more vulnerable, as many in gaol ease their own burden by inflicting violence on those they, often erroneously, regard as 'worse' criminals.
Courts do not estimate the lived experience of gaols. While in gaol Brown has no control over any aspect of his life including access to medical and psychological treatments.
He has been, and will be, subject or exposed to violence. He has, and will be, locked down in his cell; where he has to eat, the same place as he and his cellmates share a toilet.
These conditions are worse for those with underlying health conditions: R v Burrell (2000) 114 A Crim R 207 at [27]. While these factors warrant can warrant a longer period on parole and a finding of special circumstances, care needs to be taken not to double count mitigating factors. The sentence imposed and its non-parole period must be that which the circumstances of his crimes require.
Even while on protection, Brown has been assaulted in gaol. This is a matter I can, and will take, into account. When someone is assaulted in gaol, they, if serving a sentence, must remain in or be returned to, the very place they were assaulted. A person in custody has no freedom. They have no control over who they associate with. They have no control over who is assigned to share their cell.
We send people to gaol for community protection; we hold people on remand for community protection. People are not sent to gaol to be seriously assaulted or to leave gaol with an injury that they did not enter gaol with. A past assault can mean that they spend their remaining time in custody apprehensive of a future assault. That said, as the Court of Criminal Appeal made clear in R v O'Connor [2014] NSWCCA 53, only limited weight can be given to that one factor.

R v Brown

At a glance

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Catchwords

Judgment (49 paragraphs)

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Cases Cited (41)