Brown v The King

Case [2023] NSWCCA 330


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Brown v R [2023] NSWCCA 330
Hearing dates: 22 November 2023
Date of orders: 20 December 2023
Decision date: 20 December 2023
Before: Leeming JA at [1];
Garling J at [2];
Cavanagh J at [3]
Decision:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of Judge G O’Rourke SC of 16 March 2023 is quashed.

4. The applicant is sentenced to a term of imprisonment of 3 years and 3 months commencing on 10 February 2022 and expiring on 9 May 2025 with a non-parole period of 2 years. The non-parole period will expire on 9 February 2024.

Catchwords:

CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness

CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of the applicant’s rehabilitative prospects

CRIMES – Appeal against sentence – where offending was assessed to be within the mid-range – where offences occurred within a short period in a single course of conduct – where applicant had strong subjective case – consideration of sentences imposed in cases with similar fact patterns – sentence is manifestly excessive – applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW) ss 66C(3), 61M(2)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)

Cases Cited:

Alarcon v The Queen [2018] NSWCCA 298

Azzopardi v R [2019] NSWCCA 306

Beavis v The Queen [2018] NSWCCA 248

Bell v R [2019] NSWCCA 251

Blackett v The Queen [2021] NSWCCA 210

Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

Hurmz v R [2017] NSWCCA 235

Kenny v The Queen [2010] NSWCCA 6

Kirby v R [2021] NSWCCA 162

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

McDowall v R [2019] NSWCCA 29

Mulato v R [2006] NSWCCA 282

Muniandy v R [2021] NSWCCA 305

O’Brien v The Queen [2013] NSWCCA 197

Pleasance v R [2016] NSWCCA 113

R v Dagwell [2006] NSWCCA 98

R v RD [2014] NSWCCA 103

R v Wright [2017] NSWCCA 102

Sharma v R [2017] NSWCCA 85

Stoeski v R [2014] NSWCCA 161

Category:Principal judgment
Parties: Michael George Brown (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:

Counsel:
M Higgins (Applicant)
J Styles (Respondent)

Solicitors:
Nikola Velcic & Associates (Applicant)
NSW Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2022/00039711
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
16 March 2023
Before:
Judge G O’Rourke SC
File Number(s):
2022/00039711

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to two offences of sexual intercourse with a child between the ages of 14 and 16 contrary to s 66C(3) of the Crimes Act 1900 (NSW). On…

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Brown v The King [2023] NSWCCA 330
Case
[2023] NSWCCA 330
Decision Date

CaseChat Overview and Summary

The case of Brown v The King involved an appeal by the applicant, Brown, against his sentence. The offences in question were committed within a short period as part of a single course of conduct. The applicant argued that the sentencing judge had erred in the assessment of both the objective seriousness of the crimes and his rehabilitative prospects. The appeal was heard by the High Court of Australia.

The central legal issues revolved around whether the sentencing judge had made errors in evaluating the objective seriousness of the crimes and the applicant's rehabilitative prospects. The applicant contended that the sentencing judge had overlooked significant mitigating factors and that the sentence imposed was manifestly excessive when compared to sentences in similar cases. The court was required to determine whether the sentence was appropriate and whether any errors in the assessment of the relevant factors warranted a reduction in the sentence.

In its decision, the court examined the sentencing judge's assessment of the objective seriousness of the crimes and the applicant's rehabilitative prospects. The court found that the sentencing judge had erred in the assessment of the objective seriousness and that the applicant's rehabilitative prospects were stronger than originally considered. The court noted that the sentence imposed was manifestly excessive when compared to sentences in similar cases. Consequently, the court allowed the appeal, quashed the original sentence, and resentenced the applicant. The new sentence reflected the court's assessment of the appropriate punishment for the crimes committed, taking into account all relevant factors.

Orders

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Background

Background to the litigation

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