Brennan v The Queen

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.