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Brennan v The Queen

Brennan v The Queen

Case [2012] VSCA 151 13 July 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0717 S APCR 2009 0718
PETER BRENNAN	Applicant/Appellant
v
THE QUEEN	Respondent

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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)

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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.

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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]…

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 Brennan v The Queen

Details

AGLC: Brennan v The Queen [2012] VSCA 151
Case: [2012] VSCA 151
Decision Date: 13 July 2012

CaseChat Overview and Summary

The matter of Brennan v The Queen was heard in the Court of Appeal. The applicant, Brennan, appealed against his conviction and sentence for various sexual offences committed against multiple victims while he was working as a masseur. The central issue before the Court was whether the trial judge had properly directed the jury on the requirement of awareness of non-consent and misunderstanding of medical intent for the offences of indecent assault. The Court had to consider if the jury's directions were erroneously conflated and whether this affected the validity of the convictions.

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