District Court New South Wales Medium Neutral Citation: R v Brunker [2021] NSWDC 301 Hearing dates: 29 January 2021 Decision date: 29 January 2021 Jurisdiction: Criminal Before: Haesler DC DCJ Decision: Aggregate sentence of 4 years with a non-parole period of 2 years. Catchwords: CRIME – Aggravated indecent assault victim under the age of 16 years - Aggravated sexual assault victim under the age of 16 years SENTENCING — Relevant factors on sentence — long delay in reporting – vulnerable victim - abuse of trust – immediate acceptance of responsibility- one off offence by person of otherwise good character- need for care not to double count aggravating matters- victim impact- victim forgiveness for sparing her the ordeal of a trial- delay in sentencing- harsh background- intellectual disability – retribution- victim vindication- no option but a custodial sentence Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Anderson v R [1981] VR 155 DPP v De La Rosa [2010] NSWCCA 155 Munda v Western Australia (2013) 249 CLR 600 [2013] HCA 38 R v Herring (1956) 73 WN (NSW) 203 Texts Cited: Royal Commission into Institutional Responses of Sexual Abuse; Commonwealth of Australia (2017) Category: Sentence Parties: Brett Lee Brunker (the offender) Director of Public Prosecutions Representation: Solicitors: Mr G Morrison, Morrisons Law (for the offender) Ms N Olender (for Director of Public Prosecutions) File Number(s): 2020/00120092 Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987. SENTENCE – EX TEMPORE REVISED Non-publication 1. When this judgment is taken out a pseudonym will be used for the name of the complainant. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and the provisions of the Crimes Act 1900 there is to be no publication of any information or any other material that identifies or is likely to lead to the complainant's identity. Introduction 1. Brett Bunker was born in 1966. In 1987 he was living and caring for his mother in a northern suburb of Wollongong. The complainant was his friend's eldest daughter. She was aged 15 and in Year 10 at school. She regarded the offender effectively as her uncle. As is commonly the case in Year 10 the school had a program where a student could have work experience. That work experience took place at the nursery where the offender then worked. It was also arranged that the complainant would stay with the offender overnight so that she could go straight to his work place in the morning. The arrangement was that she was to stay for five days and sleep in his bed and he would sleep on the lounge. His mother would be at the home. 2. The offender picked the complainant up the evening before her first day of work experience and took her to his home. That first night the mother went to bed first. Then the complainant went to bed. The offender remained in the lounge room. He had been drinking. After 11 o'clock he came into the room where the complainant was lying in bed. She became scared as she heard the bedroom door close. The offender pulled away the bed covers and lay down beside her. He was breathing beer smells over her. She pretended to be asleep. He touched her. He removed her pants and underwear. He placed his hand on her body. He then took hold of her hand and put it on his erect penis making her manipulate it. He held her in a way that she was unable to move. He then lifted her leg and placed his penis into her vagina. It caused burning pain. She was pushed against the wall. She could not move. She could not get away. She tried to scream but no noise came out. When the offender had finished doing what he was doing he walked out. 3. The next morning not much was said and nothing further occurred during her stay. She did not tell her parents what the offender had done as she was afraid of her father's possible reaction. 4. In 2006 the offender was visiting her parents' home. She saw the offender holding her daughter. What she saw brought back the memories of what he had done to her years earlier. She told her parents what he had done to her. Her father told the offender he never wanted to see him again. The matter was reported to police but no formal statement was taken. 5. In 2019 the complainant contacted police and provided a detailed statement. Police were given a surveillance device warrant and a conversation between the complainant and the offender was recorded. In it he made partial admissions to an indecent assault upon the complainant but his memory was that she was much younger when the incident occurred. 6. On 22 April 2020 he was arrested. He participated in a record of interview and made admissions to indecent assault and an attempt sexual intercourse offence. He ultimately accepted responsibility for two offences: 1. Aggravated indecent assault child under 16: s 61M(1) Crimes Act 1900; maximum penalty at the relevant time 7 years imprisonment; 2. Aggravated sexual assault: s 61J(1) Crimes Act; maximum penalty at the relevant time 20 years imprisonment. 1. Brunker later told a psychologist that he had very little memory of the events. He was however prepared to enter a plea of guilty acknowledging what he did was wrong and acknowledging the version of events given by the complainant. He chose not to put the complainant through the ordeal of a trial, a matter for which she expresses her appreciation in a Victim Impact Statement that was read to the Court. His acceptance of responsibility at an early stage requires a reduction in the otherwise appropriate penalties of 25%; s 25D Crimes (Sentencing Procedure) Act 1999. 2. His acceptance of responsibility is also a matter that I can take into account when I come to synthesise all relevant factors because despite his serious offending against a child on this one specific evening, his acceptance of responsibility is indicative of two things: firstly, that this act was, would appear from all the information before me to have been a one off event; and, secondly; that he is otherwise a person who respects others and respects the law. 3. The only rationale he gives for why he did what he did is that he had been drinking. I suspect that he does not now know, and perhaps even then, did not know, why he did what he did. Objective seriousness 1. At the relevant time, and now. there is an absolute prohibition on any sexual activity with a child. A 15 year old girl is a child. Every act that involves sexual interference with a child is serious and treated seriously by the Courts. That law is strictly enforced. It is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. The guidance offered by the maximum penalties makes that clear. 2. The complainant and her family trusted the offender. They trusted him to care for her and not abuse her. Her age is an element of the offence. There was some discussion as to whether I should take into account another potential aggravating feature, her vulnerability. There is always a danger when assessing the seriousness of a crime of double counting matters that are elements of the offences, or matters intrinsic to the offending that are also aggravating features as set out in s 21A(2) of the Crimes (Sentencing Procedure) Act. I sentence after making a proper assessment and of what was done. 3. Here, I simply note this; the complainant was in a vulnerable position. She was in the care of the offender in his home. She had no one to go to. She was separated from her family. Her parents had trusted the offender with her care. She trusted the offender as effectively her uncle. He abused that trust. 4. The offenders' initial act was preparatory to the act of penile penetration. It took a short period. It involved skin on skin contact with the child's hand being manipulated on his penis. The act of penile intercourse caused her pain. It involved complete penetration of the child's genitalia. The incident did not take long but I suspect so far as the child was concerned it took forever. The offender was at the relevant time twice the child's age. Victim Impact 1. There are many possible behavioural responses to such child sexual abuse. Courts recognise that all forms of such child maltreatment presents significant risks for later physical and emotional wellbeing. They were identified and set out in full in the Royal Commission into Institutional Responses of Sexual Abuse (2017) in its final report impacts Volume 3 pp 9 to 11. 2. The Victim Impact Statement, which I read and considered, reflects the all too tragic and common response to this terrible crime. As an adult she wants her childhood voice to be heard. It also shows both the resilience of the complainant and a degree of compassion for the offender. The premature sexual activity, the control that he exercised over her when so young, the lack of respect and a lack of kindness have stayed with her ever since. She wanted to feel safe but she was not safe. She says her innocence was taken and she wishes she could go back to being the child she was prior to this offence. 3. She makes reference to the impact on her father. Technically by application of the provisions in the Crimes (Sentencing Procedure) Act I cannot have regard to this factor but I understand what she meant. She kept a secret for many years. She said she was a child not a toy. He failed to have regard to her as a human being. She said while she accepts he says he was sorry, sorry cannot give her back her innocence. She does appreciate however the fact that she was spared the pain of going to trial and is thankful for that. She said: "I want you to know that being abused had a toll on the rest of my life. The trauma I endured by you was a life sentence for me. I was never the same after that night." 1. It is the experience of the Court that when matters such as this are brought to finality by the imposition of sentences, time can heal the scars that were inflicted when young. And that with appropriate assistance, and having the matter completed, women such as the complainant in this matter can eventually put these matters behind them. 2. The punishment that I inflict cannot reciprocate the harm that was done but the Victim Impact Statement is, as I have said, one matter that I take into account. 3. I also take into account the early pleas of guilty, both for their utilitarian value and otherwise. I take into account the maximum penalties. They are guides to the exercise of my sentencing discretion. Section 25AA Crimes (Sentencing Procedure) Act 1. Section 25AA Crimes (Sentencing Procedure) Act 1999 applies to these proceedings. I must sentence the offender in accordance with the sentencing practices and patterns that apply today and not at the time of the offence and have regard to the trauma of sexual abuse on children. I am aware of, as Mr Morrison, who appears for the offender, pointed out in submissions, that this Court at the relevant time did take into account the maximum penalties and imposed severe penalties in matters such as this. They were treated seriously and retributive penalties were generally imposed. 2. Sentencing patterns have changed particularly because of the introduction of the standard non‑parole period regime that cannot, and does not, apply here: s25AA (2). I am required to comply with s 25AA but that section does not alter fundamental common law principles. I must determine the facts. I must, have regard to the maximum penalties. I must identify the factors which relate to the objective seriousness of the offence. I must take into account the case for the offender. I must take into account the many and sometime contradictory purposes of sentencing and ultimately fix an appropriate term, and, if necessary, make findings of special circumstances. Delay 1. There has been a delay between the offence and sentencing. Sentencing for a crime long after the commission of the offence calls for a considerable measure of understanding and flexibility. Each case is individual, there is no general principle about the operation of leniency arising from delay but offenders are entitled to have it valuated in their favour any factor deriving out of their conduct during a period that can reflect to their advantage. This is particularly so if the person ceased offending voluntarily without any formal intervention. 2. On one hand the delay in bringing the matter before the Court has operated to his advantage. The delay gave him the opportunity to demonstrate his capacity for rehabilitation. And he has demonstrated a capacity to lead a pro‑social life. It appears that this offending was on one occasion and was aberrant behaviour in an otherwise law abiding life. Those facts make it less necessary to punish him in order to deter his future offending. 3. On the other hand the offender has escaped justice for decades. He has enjoyed a life free from the opprobrium and the punishment which his crimes deserve. 4. Not every question raised in sentence proceedings involves a choice between extremes. Neither human behaviour nor the fixing of sentences is so simple. As with many sentencing principles I have to take into account and consider these two competing principles when synthesising my ultimate sentence. The case for the offender 1. The subjective case is put in documentary form in a careful report from psychologists, Ms North and Mr Ward. Ms North sets out both potential risk factors and protective factors. Mr Ward is presently treating the offender. 2. I also heard from his employer, who not only provided a reference but gave evidence about how he has employed the offender for decades and how he values him as a trusted employee and leading hand. The offender is integral to his business. He will employ him on his release from custody. 3. I will not go into the detail of Ms North's comprehensive report. It is not in dispute. An Aboriginal Australian the offender had a dysfunctional background that was marred by his father's alcohol abuse, domestic violence, and harsh discipline from his. He was not close to his father but he cared for and was close to his mother. He was her carer for a lengthy period. Apart from that period he has been employed all his life. He has a job and a job to go back to. 4. Ms North's testing and her professional experience indicates no evidence of any sexual dysfunction. However her testing and his history reveal that he has is of below average cognitive functioning. He is functionally illiterate. He stutters. She believes that given that history he would fall within a borderline characterisation of intellectual disability. The Court of Criminal Appeal in DPP v De La Rosa [2010] NSWCCA 155 set out principles that apply to offenders who suffer a mental illness. There is authority that indicates that those with an intellectual disability should attract the same principles: Anderson v R [1981] VR 155. They apply here. 5. After he was charged he suffered understandable anxiety, for which he has been treated. Although he is able to work and has some friends he is relatively, socially isolated. The practical remorse evidence from his guilty pleas, admissions and acceptance of the complainant's version of events are what one would expect of a person who committed one serious offence but has not reoffended. 6. In custody he will not be able to continue the treatment he is presently engaged in with Mr Ward. His progress to rehabilitation will be interrupted by the minimum term he must spend in custody. Because of his age, because of his background, because of his intellectual disability he is ill equipped for a custodial environment. He will be vulnerable to being stood over. There is history of that occurring in his early life. He will be subject to the COVID 19 restrictions, which will r interfere with his interaction with pro‑social friends and work colleagues. It is unlikely, given the minimum term I intend to impose, that he will qualify for any custodial programs. The sooner he is released so that he can continue with his psychologist the better for him and the community. 7. There are two offences before the Court, one was preparatory for the first and they occurred as part of a course of criminal conduct. There should be substantial concurrence but there must be some independent punishment for each of the offences. 8. This is his first offence. He has no prior criminal history. He has demonstrated a capacity to lead a law abiding life. He has a strong subjective case. A substantial finding of special circumstances is justified. Submissions 1. Ms Olender, Senior Solicitor for the Director of Public Prosecutions, made appropriate concessions. She accepted that there are a significant number of mitigating factors including his vulnerability while in custody. But the Crown's ultimate submission is; regardless of those mitigating factors only a custodial sentence should be imposed. 2. Mr Morrison, Solicitor, on behalf of Brunker, recognises that the law demands a custodial sentence in this matter. He points to the many matters in mitigation; to which I hope my summary has done justice. Both counsel note that tragically the harm suffered by the complainant was that which is expected in matters such as this. There does not appear to be any planning. There were no prior convictions. He was a person of good character and it appears that this was a one off offence. Both accept that it is highly unlikely given the time that has elapsed that he would reoffend. His prospects for rehabilitation are very good and he has shown appropriate remorse. 3. There are as Ms North points out some risk factors in his limited social support network and the absence of long term relationships in his history. That social isolation will only increase once he is convicted and will be exacerbated by his time in custody. Synthesis 1. It is a tragedy, given the offenders' background and disability and other problems that he must be imprisoned but what he did and the continuing impact of what he did to his victim is an even greater tragedy. 2. Brunker has done much with his life despite his background, his disability and other problems. He has a home, a good steady job and the respect of his employer. He is engaged in treatment. Gaol will hurt him more than most. A prison sentence risks damaging his demonstrated capacity to lead a law abiding life. After his gaol term he will return to the community with many challenges as he attempts to resume that normal community life. 3. But, and it is an important but, while mitigating factors can and will be given appropriate weight, they cannot lead to the imposition of a penalty which is disproportionate to the gravity of the crimes for sentence. Judges have an obligation by the sentences imposed to vindicate the dignity of each child victim. Judges have an obligation to express the community's disapproval of that offending. Retributive sentences are expected and demanded for offences against children. The maximum penalties make that clear. Retribution is a term often used interchangeable with deterrence. Retribution is a notion that reflects the community's expectation that offenders will suffer punishment and that particular offences will merit severe punishment: R v Herring (1956) 73 WN (NSW) 203; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38. Orders 1. The indicative sentences I am about to indicate will reflect the 25% utilitarian discount. 2. For the s 61M matter, Aggravated indecent assault - victim under the age of 16 years, I indicate a sentence of one year and six months. 3. For the s 61J matter, Aggravated sex assault- victim under the age of 16 years, I indicate a sentence of three years and nine months. 4. The aggregate sentence in this matter. The aggregate sentence is four years imprisonment. There will be a non-parole period of two years reflecting the substantial finding of special circumstances. That sentence will commence today which will make the offender eligible for release on 28 January 2023. 5. There will be a non-parole period of 2 years commencing 29/01/2021 and expiring 28/01/2023. The balance of the sentence of 2 years is to commence upon the expiration of the non-parole period on 29/01/2023 and expiring on 28/01/2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2021