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District Court 11 November 2020

R v Brabazon

[2020] NSWDC 814

Sexual offences
CRIME SENTENCE

Citation: R v Brabazon [2020] NSWDC 814
Court: District Court of New South Wales
Date: 11 November 2020
Judge: Bourke SC DCJ

Background

Following a seven-day trial, the offender was convicted on all 19 counts of an indictment alleging serious sexual offences against a single male complainant. The offending began when the complainant was eight years old and continued for almost three years, ceasing when he was approximately ten to eleven years of age. The offender had moved into the complainant's family home after meeting the complainant's mother, and assumed a position of authority over the children when their mother was absent.

The 19 counts spanned seven discrete incidents and encompassed a range of offending including acts of indecency, fellatio, and anal intercourse. Several incidents occurred in the family home when the offender was alone with the complainant; two occurred during camping trips at Bowen Mountain. In the camping incidents, the offender also provided the complainant with alcohol and marijuana prior to the sexual abuse.

The complainant gave additional context evidence at trial indicating that the charged offences represented only a portion of the total offending, which occurred regularly over the period. The sentencing court accepted that evidence.

  • How should contextual evidence of uncharged offending be treated in the sentencing exercise, including whether it aggravates the charged offences or merely removes potential mitigation?
  • What weight should be given to the standard non-parole periods and maximum penalties applicable to the various offence types?
  • What aggregate sentence appropriately reflected the totality of the offending without being so severe as to extinguish any realistic prospects of rehabilitation?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.

Decision

The court accepted the Crown's outline of findings of fact without contest, as defence counsel conceded it accurately described the evidence presented at trial. Bourke SC DCJ found that the complainant's context evidence of additional, uncharged sexual conduct was credible and accepted it. Consistent with AK v R [2016] NSWCCA 238, the court held that this contextual offending did not itself aggravate the charged offences, but it did deprive the offender of any claim to mitigation that might otherwise have arisen had the indictment represented the full extent of his conduct.

The court identified the standard non-parole period of 15 years (applicable to the most serious offences under s 66A(1)) and the various maximum penalties as important legislative guideposts. The offending was characterised as serious, involving repeated abuse of a very young child, exploitation of a position of authority, deliberate isolation of the complainant from his mother, and the introduction of substances including alcohol and cannabis.

Special circumstances were found to exist, warranting some adjustment to the non-parole period ratio, primarily because the offender would require meaningful supervision and support on release given the nature and duration of the offending. However, the court kept this adjustment modest, noting that the aggregate sentence would already involve a substantial period on parole.

Applying the totality principle, the court reviewed the aggregate sentence to ensure it represented the minimum necessary to reflect the seriousness of the offending, while preserving some realistic prospect of rehabilitation and a functioning life after release.

Orders Made

  • Aggregate non-parole period of nine years and six months, commencing 21 August 2020 and expiring 20 February 2030.
  • Additional term of four years and six months, with the head sentence expiring 20 August 2034.
  • Total aggregate sentence: 14 years' imprisonment with a non-parole period of nine years and six months.
  • Direction that a copy of the psychiatric report of Dr Furst be provided to Corrective Services, Justice Health, and the offender's general practitioner.

Key Takeaways

  • Under AK v R [2016] NSWCCA 238, evidence of uncharged contextual sexual offending does not aggravate the offences for which an offender is being sentenced, but it does neutralise any mitigation that might otherwise flow from the charged conduct appearing to be isolated or limited in nature.
  • The District Court confirmed that standard non-parole periods and maximum penalties serve as legislative guideposts to be considered in the sentencing exercise, not as automatic starting points or ceilings.
  • Where an aggregate sentence is imposed, the sentencing court must set out indicative sentences for each count individually, even though the aggregate sentence will typically represent only a fraction of the sum of those indicative terms, reflecting the operation of the totality principle.
  • Special circumstances justifying a reduced non-parole period ratio need not produce a large adjustment where the overall aggregate sentence already allows for a significant parole period.
  • Exploitation of a position of domestic authority, repeated offending over an extended period, and the deliberate use of substances to facilitate abuse were all relevant to the objective gravity of the offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 61O(2), 66A(1), 66C(2)

Cases
- AK v R [2016] NSWCCA 238
- Bugmy v The Queen [2013] HCA 37
- PGM v The Queen [2008] NSWCCA 172