New South Wales District Court CITATION: R v Michael BROWN* [2010] NSWDC 344 This decision has been amended. Please see the end of the judgment for a list of the amendments. JUDGMENT DATE: 17 September 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: A non-parole period of 2 years and a balance of the term of 2 years. CATCHWORDS: CRIME - sentence - conviction after jury trial - sexual intercourse without consent - victim is ex-girlfriend of offender - victim and offender have young child - offence lies in the lower range of objective seriousness - relatively short duration and unplanned - penile/vaginal intercourse involving ejaculation - breach of trust - threat - victim impact statement - no relevant criminal record - pre-sentence report - character references - unlikely to re-offend - good prospects of rehabilitation LEGISLATION CITED: Crimes Act 1900 s 61I Crimes (Sentencing Procedure) Act 1999 s21A PARTIES: Regina Michael Brown FILE NUMBER(S): 2009/1939 COUNSEL: Mr FDL Holles for the Director of Public Prosecutions Mr G Scragg for the offender JUDGMENT 1. Things became too much for Michael Brown on the early morning of 3 August 2008. His relationship with Julie White was over. His unfounded jealously regarding another man spiked the night before when all three happened to be together at a hotel. Mr Brown was permitted to share the bed of his former girlfriend Julie White on trust. She even permitted him to share the shower with her that morning. 2. When she refused him a cuddle, that became not acceptable to Mr Brown who stepped in that moment from being a young man highly regarded in his local [place] community to being a criminal. He raped Julie White. He inflicted on his former girlfriend a very serious form of violence. 3. This morning I have to sentence Mr Brown, who has been found guilty by a jury of the crime of sexual intercourse without consent of Julie White. 4. I pause here to say to any members of the public that the name Julie White, or any means of identifying her, is not to be published outside this courtroom. It is an offence to do so. One means of identifying her is to refer to Michael Brown because his name is readily connected with hers. 5. The crime of sexual intercourse without consent is an offence against s 61 I of the Crimes Act 1900. It carries a maximum penalty of fourteen years imprisonment. Not only that, Parliament regards the offence as so serious that it has provided for a standard non-parole period of seven years, as well as the maximum sentence. 6 It is important in sentencing anyone, for the judge to set out briefly what happened in the crime so that the offender and the public are aware of the facts on which the judge has based his or her decision. Also the judge needs to make an assessment of how serious an example the particular crime is of the sort of offence that the person has been convicted of. 7. Julie White was living in [place] on 3 August 2006. She and Michael Brown used to be partners, indeed they have a daughter who was then two years old. Her name is Lucy. They had lived together for some two years, but had stopped living together earlier in 2006. 8. Michael Brown was allowed to see Lucy whenever he wanted. Sometimes Lucy and Julie White spent the night at his house. Sometimes Michael Brown stayed at Julie White's house. Michael Brown had the key to Julie White's house. Their two houses, after they separated, were not far apart, indeed they were in the same street in [place]. 9. Michael Brown and Julie White continued to have sexual relations on occasions since separating, and if Michael Brown spent the night at Julie White's house, he normally slept in her bed with her. 10. On 2 August 2008, a Saturday night, a Julie White had been out to a hotel in [place]. Before going to the hotel she had some drinks with friends, and when she went into the hotel she had some more drinks, but not alcoholic drinks. She saw Michael Brown in the bar. She also saw a work colleague of hers called James Green. 11. Michael Brown had previously showed some concern about Julie White's relationship with Mr Green, and indeed had phoned Mr Green accusing him of having an inappropriate relationship with Julie White. I am not satisfied that there was any impropriety in that relationship between Julie White and Mr Green. It is not necessary for me to make such a finding, but because it is appropriate to refer to it in my remarks on sentence, I regard it as appropriate to indicate my view. 12. James Green bought Julie White a drink at the hotel. Julie White left the hotel at about midnight and went home to bed. The next thing she knew was at about 4am when the bathroom light was switched on. She saw that Michael Brown had let himself in. There had been no previous arrangement for him to stay that night. She said to him that she did not want him to be there, nor did she want to have any problems or trouble. He said something to the effect that he did not want to cause trouble but wanted to talk, and to apologise about the way he had acted the previous evening. There had been some exchange of words between Michael Brown and Julie White concerning Mr Green. 13. Julie White granted him permission to sleep in her bed but indicated that it should be on top of the sheet. She would sleep between the sheets. She said that she would be prepared to speak in the morning. 14. The following morning Julie White got out of bed whilst Michael Brown was still asleep. She went to have a shower. Whilst she was in the shower she saw Michael Brown standing naked in the bathroom, and then he proceeded to get into the shower with her. After a few minutes Julie White got out of the shower and went back into the bedroom. She was putting on her underwear when Michael Brown tried to hug her. He said he wanted to talk about their relationship. She said that she wanted to get dressed first. That is when things changed significantly. 15. Michael Brown pushed Julie White on to the bed. He continued to hug her. She tried to get up, but he reached down for her underwear and tore off the underwear that she was wearing. He said words to the effect "This is what happens when you make me angry, and this is what's going to happen". 16. Michael Brown was trying to separate Julie White's legs. He was pinning her down with his left arm, and put his right hand around her neck. She screamed. Michael Brown said something like "If you ever scream like that again you'll cop it". Photos were tendered in the proceedings showing bruises around Julie White's neck. 17. Michael Brown had difficulty obtaining an erection, nevertheless he managed to insert his penis into Julie White's vagina. He kept his penis in there for ten to fifteen seconds, and ejaculated inside her vagina, before withdrawing and getting up. 18. Julie White put her clothes on and told Michael Brown she was going to the police. He said that the police would not believe her. She left the house and she phoned her mother, who told her to get in touch with the police immediately. She did this and went to the police station with her mother. 19. As I said, I need to make a finding about just how serious an example of the crime of sexual intercourse without consent this particular offence was. Mr Holles, who appeared as Crown Prosecutor, urged me to find that this particular offence was in the upper range of seriousness for these kinds of crimes. On the other hand Mr Scragg, who appears for Mr Brown, urged me to find that the crime was in the lower range of objective seriousness for this sort of crime, indeed towards the bottom of that range. 20. In my opinion the offence is in the lower range of objective seriousness, but it lies towards the top of that range and very close to the middle of the range of objective seriousness. 21. The reason that I find it is in the lower range of objective seriousness is that the offence itself was of relatively short duration, it was unplanned and it was a momentary offence. The reason however that it is towards the top of that lower range is because the intercourse was penile/vaginal and it involved ejaculation. It also involved a breach of trust in the sense that Ms White trusted Mr Brown to stay in her home. Not only that, she trusted him to stay in her bed and allowed him in the shower. This trust was based, in my opinion, on the fact that she had had a long term relationship with him; he was the father of their child. This was a significant trust for a woman to allow a man, and Mr Brown abused it. 22. In addition there was a threat, not physical violence, but a threat uttered by Mr Brown. There were bruises which were inflicted, they were significant. They were not such that they constituted an aggravating factor within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. That is not to diminish their seriousness, they were bruises that demonstrate just how serious a crime a rape perpetrated against a woman by a man is. 23. The crime was committed in the home of Julie White. I do not find that that is an aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act because of Mr Scragg's submission that the arrangement between Mr Brown and Ms White was such that they shared to a significant extent each other's homes. But I do find generally as a part of the nature of the offences I have already indicated, that the crime involved a significant breach of trust. Once again, that is not a finding under s 21A(2), but a finding about the general nature of the offence. 24. It is important for a judge in sentencing an offender for a crime such as this to make reference to, and take into account, anything which a victim says about the crime. In this case Julie White has provided a victim impact statement, which became exhibit SC in the proceedings. I propose to read that out. She divides her victim impact statement into various sub-headings. "Physical On the day of the assault the physical injuries that were inflicted were some red marks and slight bruising around my neck, and loss of my voice. I underwent a rape kit and spoke to a counsellor at the hospital. I wasn't allowed to shower till late that afternoon. I have flashbacks, and my hands become very sweaty and cold. Fears and insecurities I never stayed at my unit again. I collected some personal items and moved into my parents' home with Lucy that night. I sold the bed and threw away the bed linen. I signed off the lease three weeks later and completely moved in with parents, initially staying in a converted garage. At nights, before I fall asleep, I'd remember the fear of that day. I get sweaty and hot flushes. It still brings me to tears if I think about it. It's always in the back of my mind. It has made me highly protective of Lucy. Mental I started a new job a week after the assault and was put off within six weeks because my work performance was poor. I wanted to get away. I lived in fear from Michael. Social withdrawal I withdrew from friends and didn't go out. I didn't want to meet any of my friends for dinner or drinks. I didn't want to be seen around [place] . I maintained friendships via the Facebook Network. Relationships I found it very hard to let any men get close to me, or even talk to me without wanting to move away. It took twelve months to start socialising with friends in [place] again, but I felt confident in [place] to make friends and meet new people. Emotionally I attended counselling at [place] . I also underwent psychiatric tests and questioning from an AWR Reporter, that included questioning on my current wellbeing and stability. It really got to me every time I had to meet Michael for access with Lucy at McDonald's and couldn't deal with his small talk. It would build the fear all over again to see him. I felt devastated the day Michael got orders to recover Lucy from [place], couldn't believe it was happening. I felt trapped and wanted to get away, that's why I left for [place]. I still worry constantly for Lucy when she has visitation access to Michael." 25. I should say that I have no concern myself, and do not regard it as relevant, any aspect of the relationship between Michael Brown and his daughter Lucy, nor do I attribute any cessation of employment directly to this offence. 26. Having said that, this victim impact statement illustrates graphically the kind of effect that a crime such as the one Mr Brown committed against Julie White can have on another human being. The impacts are insulting, degrading and can be long term. 27. As Mr Scragg correctly points out, that this is not a case where there is psychiatric or psychological evidence detailing significant impacts of that nature on the victim. That is perhaps fortunate for Ms White, but nevertheless, as I say, the victim impact statement graphically illustrates the effects of a crime such as this on a victim. 28. There was in evidence in the trial a series of text messages between Mr Brown and Ms White, which were exchanged after the crime was committed. Those text messages often concerned arrangements about their daughter, but also touched upon the subject of the proceedings against Mr Brown, and other matters between them, such as cars and holidays, and things like that. I am not satisfied beyond reasonable doubt that they illustrate that Michael Brown was trying to manipulate Julie White in any aggravating way, but nor do I regard them as alleviating him from the seriousness of the crime which he had committed. To a significant extent Julie White is in a position where she needs to communicate with Michael Brown because of the fact that they both share Lucy, their daughter. Such contact is clearly unpleasant for her, but a necessary aspect of her life. 29. It is also important in sentencing an offender for the judge to take into account factors personal to the offender. The first factor is usually whether or not the offender has a criminal record. In this case Mr Brown does have a criminal record. He was convicted of a common assault at Bathurst Local Court in 2002, and a mid range PCA offence at Bathurst Local Court in 2004. 30. The common assault was dealt with by a magistrate under s10 of the Crimes (Sentencing Procedure) Act. That means that there is no conviction recorded, and I do not take it into account at all in sentencing Mr Brown. 31. Mr Scragg explained that the circumstances of the PCA offence involved driving on a Christmas Day after a big night out the night before. I also regard that as not a relevantly serious offence. For all intents and purposes I will sentence Mr Brown as a person who has no relevant criminal convictions. 32. There has been a pre-sentence report prepared by an officer of the Probation and Parole Service. It explains that Mr Brown is the youngest of four children. [Identifying material deleted]. Mr Brown's mother died in 2005, [identifying material deleted]. His father is still alive, but Mr Brown has no contact with him. 33. Mr Brown, to his credit, took the role, after the death of his eldest brother, of looking after his brother's three children. He did this for some years. Mr Brown renovated his late brother's home and sold it, putting the money in trust for his nephews and nieces. 34. Mr Brown married in 2001 and has a son Adam from that marriage. Adam is now six. The marriage broke down in 2006, and was finalised by divorce. The presentence report indicates that his former wife is in close contact, and I will refer to her shortly. 35. Mr Brown indicated to the Probation and Parole officer that his relationship with Julie White commenced around 2006, and lasted until 2008. As I have said, Lucy is the daughter from that relationship. 36. Mr Brown got his year 10 School Certificate. He did a [identifying material deleted] trade certificate at TAFE and completed his trade apprenticeship. Employers report that he has a good work ethic and is a reliable worker. He opened up his own [identifying material deleted] business but closed it because of the competition, and he has previously been employed as a manager at the [identifying material deleted]. He is currently employed as the manager of a [identifying material deleted]. 37. Although he is assessed as suitable for a community service order, and for supervision, I regard this as an offence which can be dealt with only by a period of full time custody. Mr Scragg, correctly in my opinion, acknowledged that was the only option. 38. Mr Scragg called in Mr Brown's case on sentence Wendy Brown, Mr Brown's former wife, and Simon Black, a friend of Mr Brown's. 39. Ms Brown gave very strong character evidence about Michael Brown. She confirmed the commitment that he had made to his late brother's children. She, in particular, said that she had seen him defuse situations where other women were becoming the victims of assault. She regards him as a man of his word and as one who has received much respect from women. She said that he has always been a gentleman with respectful manners and an excellent work ethic. She regards him also as an outstanding father. She comments on the significance of the relationship between Mr Brown and his daughter Lucy and the relationship between his two children Adam and Lucy. 40. Mr Black also gave a glowing reference for Mr Brown which was supported by his sworn evidence like Wendy Brown. Mr Black has known Mr Brown for some twenty-five years and talked about the impact which Mr Brown has had in the [identifying material deleted] community in committing himself to [identifying material deleted] and giving hours of his time helping [identifying material deleted. He regards him as always being professional and respectful in business. 41. Both Mr Black and Wendy Brown regard the offence as completely out of character and Mr Black said in his reference that there are "hundreds, if not thousands of people that cannot believe that this has happened to Michael." 42. There are other references which comprise exhibit S3 which come from people who have known Mr Brown for a very long time. He is, as I say, a person who is clearly very highly regarded in the [place] community as a person with personal integrity in the area of sport, as a contributor to the community and, in particular, is respectful of women. 43. I therefore have no hesitation in regarding this serious offence which he has committed as uncharacteristic. I should add, so far as his character is concerned, that he is also clearly regarded as a strong family man. 44. There are no aggravating features, I repeat, under s 21A(2) of the Crimes (Sentencing Procedure) Act. 45. So far as mitigating features are concerned under s 21A(3) of that Act, Mr Scragg urged me to find that in accordance clause (a) that the "injury, emotional harm, loss or damage caused by the offence was not substantial." I do not so find. The victim impact statement and the obvious impact on the victim Julie White is such that I do not find in accordance with that submission. 46. However, I do find that Mr Brown is unlikely to re-offend. This was, as I said, a momentary and uncharacteristic but very serious crime. I do find that he is a person of good character and I do find that his prospects of rehabilitation are good. I cannot find, of course, that he has any remorse because he has maintained his position that he is not guilty of the crime. 47. I have found, I might add, as part of my finding about the crime, that it was of course unplanned and spontaneous. 48. It is therefore necessary for me to come to assess the appropriate sentence for Mr Brown. Because of my finding that it is in the lower end of the range of objective seriousness but towards the top of that range, I would regard an appropriate commencing point as a sentence of five years imprisonment. But because of his good character, because he is unlikely to re-offend and his prospects of rehabilitation are good and the other factors which I have found in accordance with s 21A(3), I propose to fix a sentence of four years imprisonment as the appropriate sentence for this crime. 49. Normally a four year prison term should be accompanied by a non-parole period of three years. However, in this case Mr Scragg urges me to find that there are special circumstances which warrant an adjustment and lowering that non-parole period. He argues that this is the first time that Mr Brown has been sentenced to a period of full-time custody and that his prospects of rehabilitation are good and that he will need some support in the community when he leaves prison. I accept that submission and propose to reduce the non-parole period to two years. 50. I should make two further observations before sentencing Mr Brown. The first is that there was evidence from Ms Wendy Brown that the impact of Mr Brown being in prison will be significant so far as his children are concerned, that is their son Adam and his daughter Lucy. The impact is not such that I would regard it as a mitigating factor. All people who go to prison because of the crimes they have committed bring about consequences on their own families and this is an unfortunate product of committing crime. The Court of Criminal Appeal has made the law very clear on this topic - that it is to be hardship of an extraordinary kind before it can be taken into account. Once again Mr Scragg correctly in my opinion, did not urge me to make such a finding. 51. The second thing is that this offence carries a standard non-parole period of seven years imprisonment. I need to in accordance with the Crimes (Sentencing Procedure) Act, indicate why I am not imposing that standard non-parole period. One reason is that the offence does not fall within the middle of the range of objective seriousness for crimes such as this but other reasons are the findings which I have made under s 21A(3) of the Crimes (Sentencing Procedure) Act and which I have listed. In addition of course there are no findings which I make under s 21A(2) of that Act. 52. I am going to sentence you now Mr Brown, if you would stand up. 53. I set a non-parole period of two years, which is to commence today 17 September, 2010. It is to expire on 16 September, 2012. That is the minimum period for which you must be kept in detention. The balance of the term will be two years from 17 September, 2012 and it will expire on 16 September, 2014. The earliest date on which it appears you are eligible for release on information available to me is 16 September, 2012. HIS HONOUR: Have a seat Mr Brown. Mr Holles and Mr Scragg are there any factual matters? First factual matters that should be corrected under s 43 or any legal matters that I should deal with? I am not anticipating any. HOLLES: I believe the sentence should expire on 15 September, 2012 which is two years from today. HIS HONOUR: Today is the seventeenth isn't it? HOLLES: Today is the 16. HIS HONOUR: I thought it was the 17, it's my brother's birthday. HOLLES: 17 is it, I apologise your Honour is correct, I apologise for that. Otherwise your Honour-- HIS HONOUR: Otherwise okay. Mr Scragg? SCRAGG: I don't know if this is strictly a matter that needs to be raised, your Honour described bruises or made a finding of bruises. HIS HONOUR: They were red marks were they? SCRAGG: They were red marks. I mean in the victim impact statement Julie White does refer to minor bruises, but in terms of the medical evidence that was before your Honour at trial, they were simply described as red marks. HIS HONOUR: Thank you I will say something about that in a moment. 54. Mr Scragg draws my attention to what he has just said about bruises or red marks. If that is correct - and I have no reason for thinking otherwise - I add that it would make no difference to the findings which I have made. SCRAGG: The only other matter is the cost application as I understand it-- HIS HONOUR: Yes I will come to that. Just so far as the sentence is concerned, I think I have got the figures right from today. 55. Mr Brown you have a four year gaol term. It commences today and it expires on 16 September, 2014. I have set a non-parole period of two years that commences today. You will go into custody today. The earliest date on which you are eligible for release is 16 September, 2012. Before that date the Parole Authority will consider whether you should be released or not. Whether you are released or not is a matter for the Parole Authority not me. Mr Scragg will explain that to you before you are taken into custody. HIS HONOUR: All right have a seat. Any recommendations? There's no reports that should accompany him, any recommendations about where he serves it. I am happy to give a recommendation but-- SCRAGG: Certainly Adam and Wendy reside in the [place] area and I think Lucy does. HIS HONOUR: If you've got instructions, I will make a recommendation, Mr James has got something to say to you. SCRAGG: I would seek a recommendation that if appropriate he served his sentence or commence to serve his sentence at [place]. HIS HONOUR: Why do you say that, I mean [place] is outside [place] and it is a low security place? SCRAGG: Yes, that's simply what I've been instructed to do. I don't have a lot of knowledge about gaols quite frankly. HIS HONOUR: There's a gaol in [place] as well is there not? HOLLES: There is your Honour yes. HIS HONOUR: Do you have anything to say about what Mr Scragg said. HOLLES: It's a matter for the gaol authorities given that he has been convicted. He is unlikely to receive a C+ classification immediately which is the minimum requirement for going to [place]. So it may be that he winds there eventually, but initially he won't be doing it in a minimum security institution. 56. I do make a recommendation that the Department of Corrective Services take into account, in where Mr Brown serves his sentence, that he has two young children who reside in [place] or its vicinity. HIS HONOUR: Mr Brown I have now sentenced you as you know. I have explained that to you so all I can say to you now is good luck from now. ********** 30/10/2012 - name of community removed - Paragraph(s) 2 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. 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