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District Court 14 June 2024

R v Brougham

[2024] NSWDC 329

Sexual offences
EAGP SCHEME MISNOMER NINE MENTIONS UNNECESSARY AND LONG ADJOURNMENTS CHRONOLOGY NOT UNUSUAL FREQUENT EXPERIENCE OF THIS COURT

Citation: R v Brougham [2024] NSWDC 329
Court: District Court of New South Wales
Date: 14 June 2024
Judge: Tupman DCJ

Background

The offender, a 32-year-old man, was in a relationship with the older brother of an 11-year-old boy and was living in the same household. Over two days in January 2023 at Broken Hill, he committed multiple acts of sexual touching and sexual intercourse (by way of fellatio) against the child victim.

The offender was arrested on 27 January 2023 and the matter proceeded through the Broken Hill Local Court under the Early Appropriate Guilty Plea (EAGP) Scheme. Despite being charged with the same five offences from the outset, pleas of guilty were not entered until November 2023, some 11 months after arrest, and the matter was not committed for sentence until 19 December 2023. There were nine mentions in the Local Court during that period.

The offender appeared before Tupman DCJ for sentence in the District Court on two substantive charges, with four further offences taken into account on Form 1 documents.

  • The appropriate sentence for two substantive offences of child sexual assault under ss 66C(1) and 66DB(a) of the Crimes Act 1900 (NSW), having regard to objective seriousness, subjective circumstances, and the utilitarian value of the guilty pleas
  • Whether the guilty pleas could be treated as entered at the first available opportunity given the delays under the EAGP Scheme
  • The operation and effectiveness of the EAGP Scheme, and whether it is achieving its stated purpose of eliciting early guilty pleas

Decision

The EAGP Scheme and plea timing

Tupman DCJ expressed significant concern about the functioning of the EAGP Scheme. Her Honour noted that the charge certificate was not filed within the prescribed six-month timeframe, requiring the prosecution to seek an extension, and that multiple lengthy adjournments followed with little apparent justification. Despite this, the court accepted that the pleas could be treated as having been entered at the first available opportunity, given that the offender had made offers to plead on the same basis months earlier, with those offers only accepted by the prosecution shortly before the final mention date.

Her Honour observed that the 11-month trajectory through the Local Court was not unusual and reflected the frequent experience of the District Court. She called for an immediate review of the EAGP Scheme, noting that both offenders and victims were poorly served by the current delays: offenders with complex needs were spending extended periods on remand unsentenced, while victims endured prolonged uncertainty about whether a trial would proceed.

Objective seriousness

The court assessed the principal offence (sexual intercourse with a child aged 10 to 14) as falling in the middle range of objective seriousness. The offender was 32 at the time; the victim was at the bottom of the relevant age range. The offending was not a one-off: it involved a degree of persistence across two days, occurred in the victim's home where he was entitled to feel safe, and included offences in a pool and spa that appeared to have been planned. The offender occupied a position of trust through his relationship with the victim's older brother and his residence in the household.

Subjective case

The court noted significant personal difficulties, including an Indigenous background, exposure to childhood domestic violence, the offender's concealment of his sexuality, his own history of childhood sexual abuse, long-term unemployment, and limited education. Psychological material before the court indicated borderline personality traits, anti-social features, cognitive distortions supporting sexual offending, and a risk of reoffending assessed as well above average. The offender had sought psychological counselling and shown some insight, but prospects of rehabilitation were described as guarded. He had prior convictions in Queensland for similar offences.

Sentence

The court applied a 25% discount for the utilitarian value of the guilty pleas. A starting point of two years was adopted for the substantive touching offence (sequence 2), reduced to 18 months after the discount. For the principal offence of sexual intercourse (sequence 8), the court set a starting point of six years, reduced to four years and six months after the discount. The court declined to impose fully accumulated sentences (which would have totalled six years) as slightly excessive, and instead applied partial accumulation to arrive at an overall sentence of five years with a non-parole period of three years. Special circumstances were found, resulting in a longer parole period than standard, to allow close supervision in the community to address the offender's complex mental health needs.

Orders Made

  • Sequence 2 (intentional touching, s 66DB(a)): convicted and sentenced to a fixed term of 18 months imprisonment commencing 26 January 2023, expiring 25 July 2024; no non-parole period set as it forms part of the overall non-parole period
  • Sequence 4 (further sexual touching): taken into account as a Form 1 offence
  • Sequence 8 (sexual intercourse with child aged 10 to 14, s 66C(1)): convicted and sentenced to a non-parole period of 2 years and 6 months commencing 26 July 2023, expiring 25 January 2026, with a parole period of 2 years commencing 26 January 2026 and expiring 25 January 2028 (total term of 4 years and 6 months)
  • Sequences 5 and 6 (sexual touching): taken into account as Form 1 offences
  • Overall effective sentence: 5 years with an overall non-parole period of 3 years; earliest release to parole on 25 January 2026

Key Takeaways

  • The District Court accepted guilty pleas as having been entered at the first available opportunity despite 11 months elapsing, where the delay was attributable to the prosecution's failure to file a charge certificate in time and to prolonged adjournments, not to any late change of position by the offender.

  • Tupman DCJ called for an immediate review of the EAGP Scheme, finding that its operation in this case, and commonly in this Court's experience, fails to deliver the utilitarian benefit to the administration of justice that the scheme was designed to produce.

  • A 25% discount for the utilitarian value of guilty pleas was applied even where the EAGP process took 11 months, on the basis that the offender had signalled his plea position much earlier than it was formally accepted.

  • Where an offender has complex mental health needs requiring structured post-release supervision, special circumstances can be found to extend the period of parole beyond the standard ratio, supporting closer community oversight on release.

  • Partial rather than full accumulation of sentences is available where full accumulation would produce an outcome the sentencing court regards as slightly excessive in the overall circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66C(1), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 32
- Criminal Procedure Act 1986 (NSW) (governing the EAGP Scheme)

Cases cited: None identified in the provided text.