IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
 Suitable for Publication	

Case No. CR-23-00837

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
STEWART BROWN		

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JUDGE:	Karapanagiotidis	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 November 2023	
DATE OF SENTENCE:	5 December 2023	
CASE MAY BE CITED AS:	DPP v Brown	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2291		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW – Sentencing
Catchwords: 	Plea of guilty – Indecent assault upon a male person – Indecent assault of person under 16 years
Legislation Cited:	ss 5; 6E, Sentencing Act 199; Sex Offenders Registration Act 2004
Cases Cited:	Director of Public Prosecutions v Toomey [2006] VSCA 90; R v RLP [2009] VSCA 271; Stalio v The Queen [2012] VSCA 120; Sayer v The Queen [2018] VSCA 177; Mill v The Queen [1988] HCA 70; R v RLP [2009] VSCA 271; R v Verdins [2007] VSCA 62

Sentence:	Imprisonment for a period of 2 years and 8 months. Non-parole period of 1 year and 6 months.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr Z. Petric	Office of Public Prosecutions	
			
For the Accused	Mr R. Martini	Rainer Martini & Associates	

HER HONOUR:

1.	Stewart Emerson Brown, you have pleaded guilty to two charges of indecent assault upon a male person and two charges of indecent assault of a person under 16 years.  Your offending was committed against four separate victims. 
Summary of offending 
2.	The full circumstances of your offending are outlined in the prosecution opening of 24 October 2023 and this is the basis upon which I sentence you.  The following is a summary only.  
3.	You were born in January 1944, and at the time of the offending you were approximately aged between 35 and 38 years old.
4.	You offended between the years of 1978 and 1983 against four children aged between 8 and 13.  During that period of time you were married and lived with your two children. You resided at multiple addresses, including in Burwood, Bayswater and Upwey. You were employed and for a period between 1979 and 1981 you and your wife worked as ‘cottage parents’ looking after a Government Family Group at the Bayswater address.

Circumstances of the offending

Charge 1:

5.	On 21 February 1972, John Evans was placed under a wardship of the state and into Government care.
6.	Between 5 November 1976 and 26 February 1985, John was transferred to Family Group Home #61 “Nereda’ being a Cottage home at the Bayswater address.
7.	Cottage homes were used in residential care facilities and group homes to model a positive family life as a way of teaching children life, communication and social skills. The role of ‘cottage parents’ was to care for the children placed into the residential house by the Victorian Government.
8.	In about February 1979, you and your family accepted the position as cottage parents and moved into the Bayswater address. You commenced being carers of John who at the time was aged 7 years old whilst you were 35 years old.
9.	You moved into the Bayswater address on about 1 January 1979. Soon after, you drove John to the Burwood address to collect some personal belongings. You laid John down on a large bed and reassured him by telling him it was all right. You then proceeded to rub John’s penis on the outside of his clothing. That is relevant to Charge 1 which is charged as a course of conduct. (Course of conduct for charge 1)
10.	You then pulled John’s pants down and continued to touch and rub John’s penis, skin on skin. (Course of conduct for charge 1)
11.	On various occasions in the offending period, John regularly attended your work, where on occasion you would fondle his penis and play pornographic videos in an attempt to arouse him (Context). John knew that if he wasn’t erect then you would not be able to play with his penis, so he would often go to the toilet and masturbate himself until he ejaculated so he couldn’t get an erection and you could not abuse him. You would regularly fondle or masturbate John. You also made him masturbate you on one occasion, relevant to Charge 1. (course of conduct for charge 1)
12.	On another occasion in the offending period, you took John camping to Bacchus Marsh, where you fondled his penis and further made him masturbate your penis in the rear of your 4WD.
13.	On a number of occasions, you took John camping near a train line in Bacchus Marsh, along with your family. You fondled his penis in the back of your 4WD. You would open up both of your sleeping bags and made John masturbate you, whilst touching his penis. (Course of conduct for charge 1)
14.	On a number of occasions you took him to the VicRoads Building in Hawthorn. You would lay on the floor face down and have John insert his penis between your legs just below your buttocks, and told John to thrust backwards and forwards to simulate sexual intercourse with a woman, and that is referred to as context. (Context). You would often take his pants off and lie on the floor facing up. You would get John to lie on top of you and place his penis through your legs just below your penis, to simulate sex. (Context)
15.	On one occasion at the VicRoads building, you took John into the monitoring room, and laid John down on the floor. You took his pants down and laid beside him. You put your penis into the mouth of John and began moving your hips and making your penis enter and exit his mouth. (Course of conduct for charge 1)
16.	In about June 1990, John disclosed to his wife that one of his foster parents had “touched him up.”

Charge 2 
17.	You met Robert Compton through his parents who shared a common interest in radio devices. You were friends with his father, and at the time of the offending Robert was 9 years old whilst you were 35 years old.
18.	You took him camping in his 4WD on a couple of occasions, including on a trip to Cape Patterson, Victoria, with your son, where you would all sleep in the rear of your 4WD.  
19.	On an occasion, whilst sleeping in the 4WD, you whispered to Robert to be quiet to avoid waking your son. You were laying on the right side of Robert and using your hand, you put your hand down the front of his pants and began masturbating him.
20.	You then stated to Robert “Do you like that, do you like that”, “Do you want to keep going?” and he said “No”. You replied stating words to the effect that you should keep going to get the good sensation.
21.	Robert did not know what you were doing to him at the time. He recalls lying still as a board with an erection, and feeling a very tingly sensation from his stomach down, but now realises you were masturbating his penis, causing him to ejaculate.
22.	You told him the next day “Don’t tell anyone, it’s our secret”

23.	At the end of 2017, Robert had a short conversation about the offending with his mother, who showed police a diary of the dates that you had taken him camping.
Charge 3 
24.	Between 1981 and 1984 you resided at the Upwey address where your next young victim, David Hall was your neighbour.  His background was a relatively transient and isolated one.  
25.	In about December 1981 in the Christmas school holidays, when David was aged 10, you and he were alone swimming in your pool at the Upwey property. You swam behind him and put your hand on the front of his swim shorts, touching his penis on the outside of his clothing. (Charge 3: rolled up charge – incident 1)  You told him it was your secret and not to tell anybody.  
26.	From then on, you would sexually abuse David on a regular basis either weekly or fortnightly until he was aged about 13, and that is referred to as context in this case. (Context)
27.	In about January 1982, on an occasion where you and he were walking up the driveway, you placed your left hand in his shorts, moving his underwear out of the way then causing your bare hand to touch his penis.  You then went into his house.  (Charge 3: rolled up charge – incident 2)
28.	Your sexual offending against David was disclosed when police contacted him in May 2017 and later he also disclosed it to his wife.  
Charge 4 
29.	In the summer of 1982-1983, Marcus Fenton was a friend of David’s and he attended at the Upwey address. He was about 10 or 11 years old at the time, whilst you were about 37 or 38 years of age.
30.	You, your son, Marcus, and David were in the swimming pool at the Upwey address as it was a hot day. You were standing in the middle of the pool and the three children were hanging onto a ‘li-lo’ floating device.
31.	At the time, Marcus was wearing ‘baggy’ board shorts with nothing underneath.
32.	You would drag and spin the ‘li-lo’ around the pool while the children were hanging on. Marcus’s bottom half was in the water, and his top half was exposed on the ‘li-lo’. You deliberately put your left hand up the right side of his shorts and used a finger on your left hand to stroke the shaft of his penis for two to three minutes. Marcus did not say anything and you continued to stroke his penis whilst talking to your son and David. (Charge 4: rolled up charge – incident 1).
33.	Marcus didn’t understand what was happening at the time, but he knew it was wrong, however he trusted you.
34.	On another occasion that summer, Marcus  attended the Upwey address. You took him into a rumpus room in the house, whilst your wife and others were there.
35.	The rumpus room had children’s toys and books in it. You were seated on solid piece of furniture in the rumpus room and Marcus was either sitting on your lap or leaning back against your knees or thighs. You were talking or reading a book to him, when you deliberately put your hand up his shorts and used your finger to pull his underwear to one side. You used a couple of free fingers to stroke the shaft of his penis back and forth.
36.	At the time Marcus  did not understand what you were doing.
37.	You stroked his penis for a couple of minutes and whilst you were doing this, you would say to Marcus things such as “you’re my favourite boy around”, “the other boys are great but you’re special to me” and “this is our friendship, keep it secret, don’t tell anyone”. (Charge 4: rolled up charge – incident 2).
38.	Between 2012-2016, Marcus was driving with his wife around Upwey and disclosed that he had been sexually abused when he was in primary school, when he passed the Upwey house.
Investigation

39.	On 12 May 2017 Marcus attended Belgrave Police Station to report the offending. He indicated he had not mentioned the abuse to anyone except his wife, as the memories had just resurfaced because his two children were now of a similar age to when he had been abused. Police contacted the Knox Sexual Offences and Child Abuse Investigation team (SOCIT). 
40.	Marcus attended Knox Police station and spoke to members at the SOCIT. He reported the offending and identified you as the offender. Police commenced investigation in the matter, as outlined in the prosecution opening.
41.	On 27 October 2017, you, by appointment, were interviewed by Police and your answers are outlined in the prosecution opening.  In November 2019 you were again interviewed by police, as outlined in the opening.
Victim Impact
42.	The victim impact statements received by the Court collectively speak of the profound and long-lasting harm you have caused your victims. The sentence that I will impose, is not in any way a measure of the harm and grief you have caused; nor could it be.  
43.	Robert Compton (charge 2) eloquently speaks of his difficulties and confusion as a child and how you damaged his innocence and sense of trust in others.  He speaks of his anguish, his internal search for answers and he reflects on how his relationships with his wife and children have been impacted.  He concludes by saying ‘I have not been able to cover or explain the depression, anxiety, hurt, anger, sorrow plus more unhappy, unhealthy emotions that roll in and out of my daily life that I can now connect the starting point to the crime.’  
44.	Marcus Fenton (charge 4) refers to the range of emotions he has felt in recalling the horrendous acts you committed against him.  He speaks of constant guilt, anxiety, bitterness and frustration.  He describes that his mental health is declining and how fear and anxiety often surface in moments that he least expects and how he has experienced suicidal thoughts more frequently.  He says ‘I feel I may need to commence medical treatment to deal with my mental anxiety and dark thoughts, I haven’t ventured down this path yet but feel this may need to happen before it’s too late.’  
45.	Another victim of yours in these proceedings has provided a victim impact statement, marked as Exhibit E. I confirm that I have taken into account his statement and the profound impact of your offending on him but will respect his wishes to not refer to its contents in open Court.   
46.	The victim of your offending on Charge 1, John Evans, has also provided a victim impact statement that he read out in Court.  He begins ‘this is a very difficult statement to write.  It is a blunt assessment of the numerous problems I have suffered since the sexual abuse began.  Although traumatic … I hope this statement gives an insight into the endless hardships I have endured.’  His statement is both powerful and insightful. He outlines how your offending against him as a child, in your position of authority and as a caregiver figure, started a downward spiral that he will never recover from. He graphically details how your offending has affected his relationships, his experience and sense of intimacy, has caused him to engage in self-destructive behaviours and eroded his self-esteem and belief that he mattered. He states, ‘the last few years have been my hardest. I’ve had to confront my problems and bring up shameful things to complete strangers like the police, when I started the process, it was 40 years of repression coming out, to my family and friends and my wife. I repressed my memory of the sexual abuse so well for so many years that it feels like I am going through it all over again.’
47.	I take into account, Mr Brown, the impact of your offending on your victims.  
Gravity of offending 
48.	Your offending is objectively serious. You offended against four young and vulnerable children; children who were entitled to live safe lives, free of sexual abuse or exploitation. General deterrence and denunciation loom large as sentencing considerations. The Courts have recognized that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished. 
49.	Your offending covers the period between 1 January 1979 and 31 December 1983 and your conduct was persistent and calculated.  
50.	With respect to the individual charges, Charge 1 is a course of conduct charge and Charges 3 and 4 are rolled up charges, each comprising two occasions of sexual offending.  
51.	In relation to Charge 1, you were the foster carer of John and your offending against him involved a significant breach of trust. This charge encompasses numerous instances of abuse, including an act of oral penetration. I am required to impose a sentence that reflects the totality of your offending conduct against him and all the circumstances. The pleading however must still be treated as presenting a single formal charge.
52.	In respect of Charge 2, your victim was only 9 years of age and when you asked him if he liked what you were doing, he told you ‘no’ and you replied that you should keep going.  
53.	In respect of Charges 3 and 4 they are both rolled-up charges.  I am required to consider all of the circumstances of your offending and the totality of the harm. On Charge 3 you offended against your young victim on two occasions, including touching his penis with your bare hand. While you are not to be sentenced for the contextual circumstances alleged, it is clear that these were not isolated occasions. In respect of Charge 4 you offended against your victim in a most brazen fashion on the first occasion. Both times you used your fingers to stroke his penis. 
54.	Your offending is serious and I regard your moral culpability as high, and I’ll return to this matter shortly. 
Procedural history 
55.	I will now address the procedural history of your case as it requires some explanation and is important. 
56.	On 20 May 2014, you were sentenced in the Geelong Magistrates Court to 18 months imprisonment with a non-parole period of 12 months. This related to one charge of committing an indecent act with a boy aged 13 at the time.  
57.	On 22 August 2014, you were sentenced by this Court in respect of 11 charges of indecent assault relating to a boy between the age of 9 and 11 and a girl between 8 and 10 years. You were sentenced to a total effective term of 5 years. As you were still serving the non-parole period of the sentence imposed on 20 May 2014, a new global non-parole period was set of 3 years and 6 months imprisonment.
58.	As already noted, in respect of the current matter you were first interviewed by police on 12 May 2017. At the time you were in custody serving the sentence I have just referred to. 
59.	After you were interviewed for these offences you withdrew your application for parole, anticipating that parole would be unlikely with pending charges. 
60.	It is clear from the prosecution opening that police continued in their investigations after your first interview in October 2017 and spoke to further victims in 2018 and 2019.  
61.	In the meantime, you had served your entire sentence and were released from custody in February 2019. 
62.	A filing hearing was first listed on 20 January 2023.
63.	On 19 May 2023 at committal mention you entered pleas of guilty and your case proceeded by way of straight hand up brief.  
Plea of guilty 
64.	You have entered a plea of guilty at the earliest opportunity, Mr. Brown, which entitles you to a significant discount in sentence.
65.	Your plea of guilty has utilitarian value and as it was entered during the pandemic, it attracts a more pronounced amelioration of sentence. Importantly, I take into account, Mr. Brown, that by your plea of guilty you have spared your victims the further distress of giving evidence in Court and re-living these traumatic events. Your plea of guilty represents an acceptance of responsibility for your offending and a willingness to facilitate the course of justice. I accept it is also indicative of remorse. Your letter of apology, and representations to others over time, while I consider raise some issue regarding your insight, I accept demonstrate remorse for your offending. I also take into account that, based on the prosecution opening, it appears that you had previously made admissions to your wife as to the children you had abused and, in turn, she provided this information to police.   
Factors in mitigation 
Delay
66.	Your offending dates back to 1979 to 1983.  Delay is not an unusual feature in cases of this nature, particularly those involving children, given the trauma often experienced and the relative powerlessness of their position.  
67.	The delay and in particular the delay between your first interview and the finalization of your case is one that I am required to take into account.  You are now a much older man and you have not offended for a relatively substantial period of time. You were first interviewed for at least some of these matters in 2017. The filing hearing was then some 5 years later in January 2023 and you entered your plea of guilty soon after in May 2023. It is well established that there are two limbs to the consideration of delay: unfairness and rehabilitation. With respect to this delay I take into account that this matter, in some form, has now been effectively ‘hanging over your head’ for a substantial period of time and that you were in custody for some of this time, serving a significant sentence. I also take into account that within this period of time you have undertaken steps towards furthering your rehabilitation. 
Totality 
68.	Partly leading on from the delay, the principle of totality is also an important consideration in your case. At the time of the offending in respect of the charges before the Court you had no prior convictions. However, since that time you have served significant periods of imprisonment for sexual offending against children.  
69.	The offending dealt with on 22 August 2014 involved 11 charges committed against two child victims between 1973 and 1975. You received a total of 5 years imprisonment with a non-parole period of 3 and a half years.  
70.	For completeness I also note that the offending which was heard on 23 October 1995 apparently was committed in 1986 against 3 different child victims. You received a 12 month sentence wholly suspended for 2 years.  The offending in December 1987 was for 6 counts of sexual penetration with a child and a total of 50 counts of indecent assault.  You received a total of 2 years imprisonment.   
71.	Pursuant to the principle of totality, your prior sentences of imprisonment and the time you have already served in custody are to be regarded as part of your personal circumstances that I take into account.  In respect of your last sentence in particular, I take into account that you have lost the potential opportunity or benefit of concurrency, noting that you were initially questioned while serving this sentence.    
Advanced years 
72.	You are now 79 years of age and you have some health issues. The cases make clear that advanced age or ill health of an offender is a relevant sentencing consideration and may in some cases be of significance.  I accept that your advanced years is likely to make imprisonment more difficult than for a prisoner of younger years, in good health. 
73.	In terms of your health, your counsel did not suggest that you suffer from any serious conditions that cannot be managed or that would cause a much greater burden to you in custody. You are on a range of medications including for hypertension, irritable bowel syndrome and gastro-esophageal reflux. You regularly see your general practitioner for management and treatment of your health issues. I take into account your medical conditions, along with your advanced years. However, these factors cannot be used to justify the imposition of an unacceptably inappropriate sentence, or to displace the primacy as sentencing considerations of just punishment, proportionality and general and specific deterrence.  
Verdins principles 
74.	Your Counsel submits that your moral culpability, and general deterrence, is reduced pursuant to Verdins principles. He relies upon a number of medical reports tendered on your plea. I have very carefully read and considered all of these reports.    
75.	In his 1995 report psychologist David Hathaway opines that because of early social and sexual rejection and in particular your father’s rejection, you saw a man’s acceptance of you and your sexuality as something to be desired.  You then yourself suffered several incidents ‘which broke down the natural social barriers between the sexual involvement of adults with children.’ He also explains that you had difficulties at school with older kids and were only accepted by a younger peer group. Your sense of self inadequacy from your father, older peers and your perceived personal failures, led you to seek social, and thereby sexual involvement with younger children who wouldn’t reject you. He considers that you ‘felt like one of the children, and never learned to see [yourself] socially or sexually as an adult’ and that you held the distorted view that you were helping them with their sexual and personal development. 
76.	Psychologist Sally Rigley assessed you in early 2011, at the age of 67, as having an Autism Spectrum Disorder in the form of Asperger’s syndrome. You were also assessed as having a superior Full Scale IQ. She assessed you as having ‘impairments in the areas of social interaction, communication and imagination characteristic of disorder on the autism continuum.’ While Autism Spectrum Disorders are biological conditions that begin from birth or early infancy and are lifelong it is often not diagnosed within high functioning people, such as yourself, with Aspergers Syndrome until quite late in life. She states ‘people on the autism spectrum often are very capable verbally (or appear to be) however have great difficulties within their pragmatic skills (social use of language) and this coupled with a lack of social imagination lead them to misinterpret social situations, be literal in their interpretation of language and have great difficulty seeing situations from other people’s point of view.’
77.	In his report of 2013 Mr. Jeffrey Cummins accepted, on the basis of your history and presentation that you suffer from Autism Spectrum Disorder. He states ‘in my opinion the fact he suffers from this disorder could have been highly relevant in terms of his sexual offending against minors because his communication skills were then relatively under-developed.’  
78.	In the most recent report of 15 November 2023 Mr. Warren Simmons also considers that your presentation and history are consistent with a diagnosis of Autism Spectrum Disorder, of the type previously referred to as Asperger’s Syndrome. He states ‘there was no doubt that in Mr. Brown’s younger years there was evidence of pedophilia, secondary to adult heterosexual orientation which led to a pattern of offending. Mr. Brown’s own experiences when he was younger meant that he had a distorted view of sexual interactions between adults and children. Mr. Brown subsequently repeated this behaviour with his victims believing that he was not harming them.’  He further states, ‘No doubt his difficulties arising from Autism Spectrum Disorder would have meant that he felt more able to interact with them as his limited emotional level would have impacted on his ability to understand the nature of their reactions to what occurred. It would have also have resulted in a misunderstanding of his experiences at the age of 12 with the YMCA leaders which he did not perceive as abusive as he found it sexually arousing. He then believed that his offending provided the sexual relief to his victims that he did not receive when he was abused. His diagnosis of Autism Spectrum Disorder contributed to his subsequent offending behaviour and ability to refrain from his behaviour until interventions aimed at treating his deficits was undertaken.’ 
79.	In summary, your Counsel submits that because of your disorder you turned to younger children and thought you were teaching them effectively and didn’t think you were doing anything wrong.  
80.	I accept that you suffer from Autism Spectrum Disorder. I also accept that your personal circumstances and experiences may have left you more isolated, vulnerable and stunted in your emotional and sexual development. Your impairments in your communication and pragmatic skills may have led you to feel more comfortable interacting with children. 
81.	However, on a close consideration of all the material, I do not accept that there is a realistic connection, or causal link, between your disorder and your offending. The reports, including the most recent one of Mr. Simmons, do not make clear, or explain, how the manifestations of your Autism Spectrum Disorder have a causal nexus to the offending or how it may have impaired your capacity to exercise appropriate judgement or apprehend the wrongdoing of your conduct or to refrain from it. The nature and circumstances of your offending indicates that your conduct was persistent, protracted, predatory and centered on your own gratification. There was a significant age difference between you and your victims. At the time of your offending you were between the ages of 35 and 38 years old. As relevant to your mindset your Counsel makes the point that you didn’t use direct violence or threats. I note however that you did tell at least three of your victims to ‘not tell anyone, it’s our secret.’ Also, on asking one of your victims if he was enjoying what you were doing he told you ‘no’. These circumstances strongly suggest on your part an awareness or an appreciation of your wrongdoing.    
82.	While I do not accept your Counsel’s submission, I do take into account as part of your general circumstances your own experiences during your younger and formative years. I also take into account that you suffer from Autism Spectrum Disorder, which was only formally diagnosed later in life, and which is likely, to some extent – given the manner in which it does impact on you - to make prison a more difficult or challenging experience. 
Personal circumstances 
83.	Turning now to matters personal to you. I have already noted you are now 79 years of age and some other relevant matters.  Your personal details are well canvassed in the various medical reports.  
84.	Briefly, you were born in East Melbourne. Your parents are now both deceased. Your father was involved with the Royal Australian Navy Reserves.  You were never very close with him and he died in his late 40s. Growing up you sometimes witnessed your father being physically abusive to your mother and he was apparently always critical and disparaging of you. Your mother died in around 2002 at the age of 58 from dementia related symptoms. She had worked in a plan printing business. You were reasonably close to her.  You also had a sister who was six years your junior who died in 2007, at the age of 57.  David Hathaway in his report considers within your family dynamic you didn’t ‘develop mature social skills and didn’t learn to share [your] feelings with adults.’
85.	You disclosed to Mr. Cummins being sexually abused when you were 12 years of age when you were associated with the YMCA and went on a camp with some of the leaders and I have already referred to some of these matters.
86.	You were schooled up until Year 11 and were chronologically two years younger than the class average, which you could not explain but which made you feel ‘emotionally handicapped.’  You report being an ‘angry teenager.’  
87.	You first worked for an industrial and electrical suppliers in Richmond. At around the age of 18 you joined the NAB as a junior clerk and remained there until your mid-20s. For a short period you then worked as a taxi driver and then became a radio room supervisor for a taxi company for some 12 months.  You then worked as an emergency services officer in a control room for over 5 years and you ceased this work when you were first charged with sexual offending in 1986. After a period in custody, you commenced working for Beacon Transport, which became a division of Linfox. Over the next 24 years you worked in various roles for Linfox, initially as an administration supervisor in a transport depot and then you worked your way up to an inventory manager. You worked interstate for periods and then returned to Melbourne. You retired in March 2013 and you are now in receipt of the pension.    
88.	You married in 1975 but your wife left you in 2005 and you divorced a year later. As I have already noted. there are two children of the relationship. They are now adults and have their own families and lives and it seems you have not had contact with them for a long time. They were apparently aware of your offending and prosecutions and visited you in custody for a period.  

Rehabilitative prospects 
89.	Your recent efforts indicate that your prospects of rehabilitation have improved but I consider they still must be approached with some caution.   
90.	Your offending largely ceased in the 1980s with nothing further for some three decades but there has been another charge for offending in 2013 for which you entered a plea of guilty. I note for completion that you have one outstanding matter relating to an alleged breach of the SORA and your failure apparently to inform the agency of some contact with a neighbour.  
91.	I take into account that you have experienced the powerful deterrent effect of imprisonment and your last sentence was a substantial one.  
92.	I accept, on the material before me, that you have been seeking help for a significant period of time. The report from Mr. Hathaway of 1995 indicates that you first saw him in December 1982 at your request to receive psychotherapy for your sexual involvement with children. He saw you and your wife, or the two of you together, on a weekly basis through to October 1989. After that time, he had counselled your family periodically as family issues arose. In his report he describes you as ‘highly motivated to succeed in changing [yourself] and [your] behaviour.’ He also speaks of the positive change in attitudes and insights you had developed during that period of treatment. 
93.	In custody at the Karreenga Correctional Centre you undertook the intensive offenders program which you maintain has assisted you. Mr. Simmons notes that with the benefit of this course you were ‘certainly able to demonstrate a full understanding of why [your] behaviour was inappropriate.’ 
94.	Mr. Simmons did not consider that you required any further intervention. He stated ‘it is unlikely that Mr. Brown would benefit from any intervention with regard to sexual offending at the present time given that these offences are historical in nature and occurred prior to Mr. Brown undertaking treatment while serving a custodial disposition … [he] appeared to have gained from the previous therapeutic intervention’ (at [31]).
95.	Also, Mr. Simmons undertook the Static 99 risk assessment which placed you in the Average risk category relative to other adult male sex offenders.
96.	You currently live a relatively reserved and isolated life. You have currently been living with a friend in the Bentleigh area.  Upon release from any custodial sentence you will continue to reside in that area until securing more long term stable accommodation.  
Sentencing principles 
97.	Mr. Brown, the basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Given the seriousness and nature of this offending, I consider that punishment, denunciation and general deterrence are primary sentencing considerations. I consider that specific deterrence and community protection while certainly still relevant and the latter, I note, is a primary sentencing purpose given you fall to be sentenced as a ‘serious sexual offender,’ they do have a more limited role to play in the sentencing exercise. I also need to balance these considerations with promoting your rehabilitation, which is also in the interests of the community. 
98.	I have taken into account the sentencing guidelines referred to in s.5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have taken into account the principles of parsimony, proportionality and totality, as already referred to, and as between the charges on the indictment.  
99.	You are to be sentenced as a serious sexual offender, and the principle of totality is to give way, to some extent, to the presumption of cumulation specified in s.6E of the Sentencing Act 1991.  
100.	The prosecution do not submit that a non-proportionate sentence is called for and I do not intend to impose one. I have also taken into account, as an important yardstick, the maximum penalty that applies on all charges, which is 5 years imprisonment.
101.	I must also have regard to ‘current sentencing practices’ which relate to practices current as at the date of sentencing.  The principle of equal justice also requires me to have regard to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. It has not been submitted to me that there was a greater difference in sentencing practices at the relevant time.  
102.	The prosecution position is that a sentence of imprisonment, structured by way of a total effective sentence is required. Your Counsel principally submits that a custodial sentence in general terms is called for however the court may consider that appropriate sentencing consideration would allow for a suspended jail term and/or in combination with a lengthy Community Correction Order (‘CCO’). I had you assessed for a CCO and you were assessed as suitable. 
103.	Mr. Brown, I have given very close and careful consideration to whether you should be required to serve an immediate term of imprisonment, given the powerful mitigating factors advanced on your behalf.  As a general proposition I accept that a CCO, even in objectively serious offending, is capable of reflecting and balancing all relevant sentencing purposes. However, after lengthy consideration, given the seriousness of your offending,  it’s long term and profound impact on your victims and the need to condemn such serious and appalling behaviour, I have concluded that just punishment, denunciation and general deterrence cannot be sufficiently served by the making of a CCO.  I am also satisfied that neither a wholly nor partially suspended sentence of imprisonment would meet the relevant sentencing principles. As the higher courts have stated, in cases of this kind, also ‘the vindication of the victim … in particular, is profoundly important if the criminal justice system is to perform its role properly.’  
104.	However, to be clear, I have, as required Mr. Brown, taken into account a range of important factors in your case, including your early plea of guilty, the delay, your advanced years and considerations of totality and the need to ensure that the overall sentence is not a ‘crushing’ one in its effect. These factors have caused me to impose more moderate sentences then I otherwise would have. Synthesizing and balancing all factors, I consider that the following sentence is a just and appropriate one – 
Sentence 
105.	You are convicted and sentenced as follows: 
106.	Charge 1, 24 months’ imprisonment.  Charge 2, 9 months’ imprisonment.  Charge 3, 12 months’ imprisonment and charge 4, 12 months’ imprisonment.  
107.	Orders for cumulation as follows: Charge 1 is the base sentence.  Charge 2, 2 months’ imprisonment; Charge 3, 3 months’ imprisonment and Charge 4, 3 months’ imprisonment.  
108.	That amounts to a total effective sentence of 2 years and 8 months imprisonment.  
109.	Your Counsel submitted that if the Court were to impose an immediate term of imprisonment there should be a significant difference between the head sentence and the non-parole period to reflect your circumstances, the powerful factors in mitigation and the reduced relevance of specific deterrence and community protection in your case. I accept this submission and, in all the circumstances of your case, I consider that the minimum term that justices requires you to serve is 1 year and 6 months imprisonment, that is 18 months imprisonment.
110.	Further, you are currently registered for life pursuant to the Sex Offenders Registration Act 2004.  As you have been convicted of three or more Class 2 offences, I am required to make a fresh order requiring you to comply with the reporting requirements imposed by the SORA for the remainder of your life.
111.	There is no declaration to be made pursuant to s.18 of the Sentencing Act. 
112.	I enter into the records that you are to be sentenced as a serious sex offender.
113.	Pursuant to s.6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 5 years imprisonment with a non-parole period of 3 years and 4 months.  
114.	Custody management issues are noted as follows: you are 79 years of age and you suffer from Autism Spectrum Disorder and a range of medical conditions including hypertension, irritable bowel syndrome and gastro-esophageal reflux.