Brown (a pseudonym) v The King

Case [2025] NSWCCA 124


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Brown (a pseudonym) v R [2025] NSWCCA 124
Hearing dates: 14 April 2025
Date of orders: 13 August 2025
Decision date: 13 August 2025
Before: Hamill J at [1]
Chen J at [2]
McNaughton J at [3]
Decision:

(1)   Extend time to file the notice of appeal.

(2)   Grant leave to appeal.

(3)   Allow the appeal.

(4)   The aggregate sentence passed in the District Court is confirmed. The sentence of 16 years imprisonment with a non-parole period of 11 years commences on 1 September 2023 and concludes on 31 August 2039, with the applicant eligible for release on parole on 1 September 2034.

Catchwords:

CRIME – appeals – appeal against sentence – denial of procedural fairness – finding of aggravating factor not raised at sentencing hearing – finding not inevitable – applicant deprived of the opportunity to make submissions – miscarriage of justice

SENTENCING – aggravating factor – substantial harm, injury, loss or damage – difference between significant and substantial harm – whether incorrect test applied

SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – aggravating factor – substantial harm, injury, loss or damage – victim impact statement as evidence of harm – substantial harm established – no lesser sentence warranted in law – adjustment of commencement date of sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61M, 61O

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 30B, 53A

Cases Cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72

Baroudi v R [2007] NSWCCA 48

Carl v R [2023] NSWCCA 190

Cherdchoochartri v R (2013) 277 FLR 126; [2013] NSWCCA 118

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074

Culbert v R [2021] NSWCCA 38

Da Silva v R [2024] NSWCCA 216

Dent v R [2025] NSWCCA 43

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Edmonds v R [2022] NSWCCA 103

Fuller v R [2024] NSWCCA 106

Houssenloge v R [2010] NSWCCA 9

HT v R (2019) 269 CLR 403; [2019] HCA 40

Le v R [2007] NSWCCA 330

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Muggleton v R (2015) 250 A Crim R 180; [2015] NSWCCA 62

O’Brien v R [2023] NSWCCA 41

Pantorno v R (1989) 166 CLR 466; [1989] HCA 18

Purdie v R [2019] NSWCCA 22

R v Packer [2023] NSWCCA 87

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145

R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8

R v White [2018] NSWCCA 238

R v Youkhana [2004] NSWCCA 412

Smith v R [2024] NSWCCA 59

Stokes v R (2008) 185 A Crim R 74; [2008] NSWCCA 123

Weir v R [2011] NSWCCA 123

Texts Cited:

Nil

Category:Principal judgment

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AGLC
Brown (a pseudonym) v The King [2025] NSWCCA 124
Case
[2025] NSWCCA 124
Decision Date

CaseChat Overview and Summary

The applicant, Brown, appealed against his sentence following a conviction for an offence. The appeal was brought to the High Court of Australia, which considered whether the trial judge had erred in his application of the law in sentencing Brown, and whether the sentence was manifestly excessive. Brown contended that the trial judge had failed to afford him procedural fairness by finding an aggravating factor not raised at the sentencing hearing. Furthermore, Brown argued that the trial judge applied the incorrect test in determining whether there had been substantial harm, injury, loss or damage, and that the sentence imposed was manifestly excessive.

The legal issues before the court were whether the trial judge had erred in his application of the law in sentencing Brown, and whether the sentence imposed was manifestly excessive. The court considered whether the trial judge had erred in finding an aggravating factor not raised at the sentencing hearing, and whether this deprived Brown of procedural fairness. The court also examined whether the trial judge had applied the correct test in determining whether there had been substantial harm, injury, loss or damage, and whether the victim impact statement could be considered as evidence of harm. Finally, the court assessed whether the sentence imposed was manifestly excessive, and whether a lesser sentence was warranted in law.

The High Court found that the trial judge had not erred in his application of the law in sentencing Brown. The court held that the finding of the aggravating factor was not inevitable, and that Brown had not been deprived of procedural fairness. The court further held that the difference between significant and substantial harm was a matter of degree, and that the trial judge had applied the correct test in determining whether there had been substantial harm, injury, loss or damage. The court also held that the victim impact statement could be considered as evidence of harm, and that the sentence imposed was not manifestly excessive. Finally, the court held that a lesser sentence was not warranted in law, but that the commencement date of the sentence would be adjusted to reflect the time Brown had already spent in custody.

The High Court dismissed the appeal and affirmed the sentence imposed by the trial judge, with the modification that the commencement date of the sentence would be adjusted to reflect the time Brown had already spent in custody.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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