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Brown v The King

Brown v The King

Case [2023] NSWCCA 330 20 December 2023

Appeal

Sentencing

Criminal Law

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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…

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 Brown v The King

Details

AGLC: Brown v The King [2023] NSWCCA 330
Case: [2023] NSWCCA 330
Decision Date: 20 December 2023

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