District Court New South Wales Medium Neutral Citation: R v Bragg [2013] NSWDC 37 Hearing dates: 15 November 2012; 15 February 2013 Decision date: 15 February 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 2 years. The sentence is suspended upon the offender entering into a bond to be of good behaviour Catchwords: CRIMINAL LAW - Sentence - Aggravated break, enter and commit a serious indictable offence - Knowing there were people inside - Indecent assault - On a bond at time of commission of offences - Fundamental purpose of sentencing is to protect the community Legislation Cited: Mental Health (Forensic Provisions) Act Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Brendan Bragg Representation: Mr J Booth - The offender Director of Public Prosecutions Aboriginal Legal Service - The offender File Number(s): 2012/412190 SENTENCE 1HIS HONOUR: The sentence that I will announce at the end of these remarks is, I fully acknowledge, the sort of sentence which sometimes provokes outrage on the part of commentators such as talk-back radio hosts keen to whip up ill-informed sentiment by giving their listeners only part of the entire story and by failing to reveal some of the most important aspects which have led to a particular sentence being imposed. Indeed, if I were to review this matter and focus only on what the offender did and the sentence ultimately imposed, I, too, might be outraged. It is therefore to be remembered that the reasons I am going to do what I will ultimately do as regards the offender are designed not to do him any particular favour, but are designed to protect the community and its individual members. 2Ultimately the purpose of sentencing offenders is to protect other people. Sometimes, indeed usually, the way in which judges seek to protect the community is by imposing harsh sentences which will act as both a personal deterrent to the individual offender and a general deterrent to others who might be tempted to act in the same way. But that is not to say that harsh sentences are the only way in which the community can be protected. Sometimes, and this is such a case, a sentence which promotes the rehabilitation of an individual offender best achieves the protection of the community. 3In this case I have chosen a sentence which at first blush appears lenient, but again I say, this is not because I want to do a favour for Mr Bragg; it is so that I do what I can to ensure that he does not harm anyone else in the future in the way in which he has harmed people in the past. 4I also recognise that rehabilitation can not only be achieved in the community. Often enough I hear submissions which suggest that there is no such thing as rehabilitation whilst in custody. That, of course, is a blanket statement which must be rejected. Rehabilitation can be achieved whilst in custody. 5It must be recognised that all sentences, apart from life sentences, must end eventually, and all offenders not serving life imprisonment will be released into the community at some stage. Given that Mr Bragg will be free sooner or later, it is in the community's interest that, when he is freed, all that can be done to ensure that he does not cause future harm has been done. 6The offender's crimes were very serious indeed. He is to be sentenced for two offences of aggravated break enter and commit a serious indictable offence, in both cases, indecent assault, knowing that there were people inside. One only needs to look at the maximum penalty of twenty years imprisonment and the standard non-parole period of five years to realise how serious such crimes are. Indeed, I have taken into account both the maximum penalties and standard non-parole periods in formulating the appropriate sentences in this case. My reasons for not imposing the standard non-parole period for either offence are to be found in these remarks on sentence. 7On two occasions the offender did what I have earlier described as "every parent's nightmare". On two occasions he broke into a home and went into a bedroom where two young boys were sleeping, and he molested one of them. He molested the same boy on two separate occasions, which is a seriously aggravating feature of his behaviour, because it seriously added to the harm that that poor young boy felt. And if that was not bad enough, at the time he committed these offences he was on a bond, having been convicted earlier that year of an offence of being a convicted child sex offender, and loitering in or near a public place at which children were present. And on top of everything I have so far said, after these offences he was dealt with by a magistrate for another offence of that kind. On that occasion he was dealt with by the magistrate under section 32 of the Mental Health (Forensic Provisions) Act. 8So, to summarise, Mr Bragg is a person who has committed two very serious offences, and who has a history of misconduct which demonstrates that he is a person who is potentially going to commit more serious offences of that kind. Ordinarily, that would necessarily mean that the offender will be spending a significant time in custody. It is a fundamental rule of sentencing that the sentence needs to reflect the objective gravity of an offender's conduct. 9After the offender's arrest, he spent six months and fifteen days in custody. Anyone who looks at the ultimate sentence I am going to impose upon Mr Bragg must remember that he did spend more than half a year in gaol. Nor was his time in gaol a pleasant experience. Mr Bragg suffers from a significant intellectual disability. He functions at a lower level than 99.9 per cent of the population. That made him, amongst other matters, a very vulnerable person whilst in custody. Gaols are terrible places. They are populated by violent, aggressive, and, on occasions, sexually frustrated inmates who apparently think nothing of sexually assaulting vulnerable people. That happened to Mr Bragg. His cell mate raped him on two occasions. 10Ordinarily he would be entitled to think that he would himself receive counselling for having been the victim of a sexual assault. That has been difficult because of the offender's crimes. 11After that period in gaol he was released on bail. He does not want to go back, for obvious reasons, and has said on occasions that he would rather kill himself than return to gaol. I emphasise that that is not a reason that I have decided to do what I will ultimately do. Many times offenders make similar comments, and even where I acknowledge that there is a risk of that threat being carried out, I have sent offenders back to gaol because that is required by the law. I mention it only to demonstrate that in some way the offender has already been punished for his misconduct. He spent that period in custody and suffered significantly while he was there. It may be that he has not been punished enough, but to say that he has not been punished at all would not be correct. 12Why, then, am I not going to send Mr Bragg back to gaol, at least, not now? Why, then, am I going to put him on a suspended sentence? The reason for that is, as has been suggested by what I have said so far, to protect the community and individual members by promoting Mr Bragg's rehabilitation. 13There has been a significant change in Mr Bragg since he committed these offences. Indeed, in some ironic way, part of that is because he has now been the victim of sexual assault, which has enabled him to develop to a greater level some empathy with the victim of his offending. He now, having been the victim of a sexual assault himself, can understand why it would be that the victim would describe the impact of the offender's crimes upon him in the terms that he did. I have re-read the victim impact statement today, and I can quite understand everything that is contained in that statement. 14When the matter was first before me last November, Mr Booth tendered quite a lot of evidence to demonstrate the significant change that had come about in Mr Bragg of recent times. He was living in a different part of New South Wales. He was being supported by experts who were assisting him to change his behaviour and he was cooperating well with them. 15I was persuaded to release Mr Bragg under section 11 of the Crimes (Sentencing Procedure) Act. I made it clear then that did not necessarily mean that Mr Bragg would not go back to gaol. I needed to know how Mr Bragg would perform in order that I could assess what form of sentence to impose upon Mr Bragg, and the length of any sentence imposed. 16He has done well since that time. A report from the Community Justice Program tendered to me today refers to the progress that Mr Bragg has made. The report says, "Mr Bragg has shown consistent motivation to adhere to his bond conditions in the past three months. Mr Bragg is aware and makes conscious effort not to associate or be in proximity to children in the community. With additional support from the CRC it is anticipated that Mr Bragg will continue to lead a more structured and meaningful life, thus reducing recidivism and challenging behaviours in the community." The report notes that Mr Bragg will continue to receive support, including one to one supervision from Mr Bragg's key worker, Mr Lucas Smith. 17As mentioned before, rehabilitation can still be achieved in custody, but I am satisfied that that rehabilitation would be nowhere near as effective as the rehabilitation which is available to Mr Bragg should he remain free in the community. I want to make sure, as much as I can, that Mr Bragg does not offend in the future. Having reviewed all the evidence in this matter, I am satisfied that the best way of achieving that is not to send Mr Bragg back to gaol. 18It may be that what I have said so far could be misinterpreted. I do not want to suggest that I have decided that the first step I have taken in the decision making process is to decide to impose a suspended sentence of imprisonment on Mr Bragg. That is not the way I have reasoned at all. I firstly decided that a custodial sentence was required. I next considered how long that term of imprisonment should be. Particularly in view of the time that Mr Bragg has already served in custody, and the rehabilitation that he has achieved to date, I am satisfied that the period of imprisonment should be two years, and only then have I decided how that sentence of imprisonment should be served. 19I acknowledge, of course, that there are two offences here, and it is unusual to the point of being remarkable that there be no accumulation of sentence. What I want to say is that this is a circumstance I have not overlooked. It is a deliberate decision of mine to impose concurrent sentences. I am fortified by the view of the Court of Criminal Appeal that questions of accumulation or concurrency are within the discretion of the sentencing judge. For the reasons that I have given, I have exercised my discretion to impose concurrent sentences, despite acknowledging the unusual nature of that order. 20I should note also that the offender pleaded guilty. The pleas did not come at the earliest opportunity, it is acknowledged, but upon first arraignment in this court. Thus there was no need for any trial date to be set. The two year period I have already said I will impose upon the offender includes a reduction for the utilitarian value of those pleas. 21There are people in the community, and in particular the victim of these offences and his family, who are entitled to question whether justice has been done in this case. I suspect that, no matter how much explanation is offered to them, they will consider that justice has not been done. I am not sure that, if I were the victim of a crime like this, or one of my family members was, that I would not feel the same way. But sentencing is not a personal exercise done by victims of crime or their family, and, difficult though it may be to accept, the harm occasioned to the victim of offending is but one aspect of the factors that I take into account in deciding the appropriate sentence. 22We do not have sentencing by victims of crime; we have sentencing by judges, who take into account the interests of the victims of crime, as well as the interests of potential future victims of crime. I do not want anyone else in the future to be harmed in the same way that the complainant in this case was. That is why I have done what I am about to do. 23In each case the offender is sentenced to imprisonment for two years. I suspend the execution of that sentence on condition that he enters into a bond to be of good behaviour for the period of that sentence. The conditions of that bond are as follows. The offender is to be of good behaviour and to appear before this court if required to do so. He is to live at XXXXXXXX. Should he move from that address, he is to notify the registrar of this court in writing within two days. He is to attend all appointments made for him by Rachel Green, whether that be an appointment with a doctor, another form of medical practitioner, a counsellor, or whatever kind. He is to attend all appointments made by Aging Disability and Home Care, and comply with the written support plan and programs proposed by that organisation, including, but not limited to, the Drop In Support Package operated by the Community Restorative Centre. He is to comply strictly with instructions and proposed programs of the Community Justice Program. He is to comply strictly with any prohibition order to which he is subject, and he is to comply with the directions of the Probation and Parole Service, including directions as to rehabilitation, counselling, treatment and the like, and he is to take all medication prescribed for him by a medical practitioner in accordance with the directions of that medical practitioner. He is to comply with the requirements and directions of any treating psychologist. ********** 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: 12 April 2013