SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0717 S APCR 2009 0718 | |
| PETER BRENNAN | Applicant/Appellant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | REDLICH and HANSEN JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 March 2012 | |
DATE OF JUDGMENT: | 13 July 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 151 | |
JUDGMENT APPEALED FROM: | R v Brennan (Unreported, County Court of Victoria, Judge L C Ross, 25 June 2009) | |
---
CRIMINAL LAW – Conviction – Rape – Indecent assault – Multiple counts – Offences committed while applicant working as masseur – Whether applicant aware that complainants not consenting – Whether applicant aware some complainants mistaken as to medical purpose of breast massage – Directions erroneously conflated awareness of complainants’ mistaken belief with awareness that complainants not consenting – Appeal allowed in part – Convictions on two counts of indecent assault quashed and retrial ordered – Resentenced on remaining counts – Wilson v The Queen [2011] VSCA 328, The Queen v Getachew (2012) 86 ALJR 397 followed – Crimes Act 1958, s 36, s 37AA.
CRIMINAL LAW – Sentence – Rape – Indecent assault – Multiple counts – 10 victims – Total effective sentence of 10 years and 6 months’ imprisonment with non-parole period of 7 years – Not manifestly excessive – No error in judge’s treatment of applicant’s age – Judge failed to order any cumulation in respect of five victims – Cumulation orders varied to reflect each victim – Resentenced to 10 years and 3 months’ imprisonment with same non-parole period of 7 years.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (conviction election) | No appearance on the conviction election which was determined on the papers | |
| For the Appellant (sentence appeal) | Mr M D Stanton | Victoria Legal Aid |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
HANSEN JA
CURTAIN AJA:
Following separate trials, the applicant, Peter Brennan, was found guilty on Presentment W02378931.1A[1] (‘the first presentment’) of seven counts of indecent assault[2] (counts 1, 3, 6, 8, 9, 11 and 12) and two counts of rape[3] (counts 2 and 5) and on Presentment W02378931.1B[4] (‘the second presentment’) of nine counts of indecent assault (counts 2, 4, 5, 8, 9, 10, 12, 13 and 14). He was sentenced in respect of both presentments to a total effective sentence of 10 years and 6 months’ imprisonment, with a non-parole period of 7 years. He sought leave to appeal against conviction and sentence.
[1]Verdicts on 24 February 2009.
[2]Crimes Act 1958, s 39.
[3]Crimes Act 1958, s 38.
[4]Verdicts on 6 March 2009. This presentment is referred to in the Return of Prisoners as W02378931.2B.
On 16 September 2011, Nettle JA refused leave to appeal against conviction but granted leave to appeal against sentence in respect of one ground, namely the failure to properly consider the applicant’s age. The applicant[5] elected to have his application for leave to appeal against conviction determined by the Court of Appeal.[6]…
Continue reading Brennan v The Queen
Sign in free to access the full text
- AGLC
- Brennan v The Queen [2012] VSCA 151
- Case
- [2012] VSCA 151
- Decision Date
CaseChat Overview and Summary
The Court found that the jury directions were indeed flawed as they erroneously conflated the awareness of the complainants' mistaken belief about the medical purpose of the breast massage with the awareness that the complainants were not consenting. The Court followed the precedents established in Wilson v The Queen and The Queen v Getachew, emphasising that these elements must be considered separately. Consequently, the Court quashed the convictions on two counts of indecent assault and ordered a retrial, while affirming the remaining convictions. The sentence was also subject to review, as the judge had failed to order cumulation in respect of five victims. The sentence was varied accordingly, resulting in a resentencing to 10 years and 3 months' imprisonment with a non-parole period of 7 years.
The Court of Appeal allowed the appeal in part, quashed the convictions on two counts of indecent assault, and ordered a retrial. The remaining convictions were upheld, and the sentence was varied to include cumulation orders for all victims, resulting in a resentencing of 10 years and 3 months' imprisonment with a non-parole period of 7 years. The Court confirmed that the total effective sentence was not manifestly excessive and that there was no error in the judge's treatment of the applicant's age.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.