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Branagan v The Queen

Branagan v The Queen

Case [2020] NSWCCA 158 13 July 2020

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Branagan v R [2020] NSWCCA 158
Hearing dates: 2 June 2020
Date of orders: 13 July 2020
Decision date: 13 July 2020
Before: Bathurst CJ at [1]
Price J at [2]
N Adams J at [86]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against aggregate sentence – aggravated break, enter and commit serious indictable offence (sexual intercourse without consent) and two other counts – whether error in assessing objective criminality of count 1 – whether indicative sentence for count 1 manifestly excessive – limitations of sentencing statistics – whether aggregate sentence manifestly excessive.

Legislation Cited:
Crimes Act 1900 (NSW) ss 61L, 61N(2), 105A, 112(2)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 88 ALJR 372; 305 ALR 323; 236 A Crim R 116
BJS v R [2013] NSWCCA 123; 231 A Crim R 537
Field v R [2020] NSWCCA 105
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46; 61 ALJR 525; 74 ALR 1; 27 A Crim R 465
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Lees v R [2019] NSWCCA 65
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PD v R [2012] NSWCCA 244
R v Hunyh [2005] NSWCCA 220
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
R v Simpson (1992) 61 A Crim R 58
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Matthew David Branagan (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Mr R Howle (Respondent)
Solicitors:
R Hill & Associates (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/00308673
Publication restriction: Statutory prohibition on publication in relation to identity of the complainant under s 578A of the Crimes Act 1900 (NSW)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 June 2019

Before:

Huggett DCJ

File Number(s):

2017/00308673

Judgment

BATHURST CJ: For the reasons given by Price J I agree that leave to appeal should be granted but the appeal dismissed.
PRICE J: The applicant seeks leave to appeal against an aggregate term of 5 years 6 months imprisonment with an aggregate non-parole period of 3 years and 3 months which was imposed upon him by Huggett DCJ (the judge) in the District Court at Sydney on 20 September 2019.
Details of the offences and indicative sentences appear in the following Table. All of the offences concerned MG and took…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Branagan v The Queen

Details

AGLC: Branagan v The Queen [2020] NSWCCA 158
Case: [2020] NSWCCA 158
Decision Date: 13 July 2020

CaseChat Overview and Summary

In the matter of Branagan v The Queen, the appellant, Branagan, sought to appeal against the sentence imposed by the Supreme Court of Victoria. Branagan was convicted of an aggravated break, enter and commit serious indictable offence, specifically sexual intercourse without consent, along with two other counts. The appeal centred on the assessment of the objective criminality of the first count and the appropriateness of the indicative sentence for that count, as well as the overall aggregate sentence. The High Court of Australia was tasked with determining whether the trial judge had erred in assessing the objective criminality of the first count and whether the indicative sentence for that count was manifestly excessive. Additionally, the court examined whether the aggregate sentence imposed was manifestly excessive.

The court considered the principles of sentencing and the limitations of using statistics to assess objective criminality. It was noted that while sentencing statistics could provide a useful guide, they could not be determinative of the objective criminality of an offence. The court examined the nature and circumstances of the offence, including the appellant's criminal history and the impact of the crime on the victim. The court also considered the principles of proportionality and the need for the sentence to reflect the seriousness of the offence. Ultimately, the court found that the trial judge had not erred in assessing the objective criminality of the first count, and the indicative sentence for that count was not manifestly excessive. The aggregate sentence was also found to be appropriate, taking into account the cumulative effect of all the offences committed.

Consequently, the appeal was dismissed, and the sentence imposed by the Supreme Court of Victoria was upheld. The High Court of Australia found no basis to interfere with the sentence, confirming the trial judge's assessment of the objective criminality and the appropriateness of the aggregate sentence. This decision reinforces the importance of considering the specific circumstances of each case when determining the appropriate sentence for an offender.

Orders