R v Brace

The appeal concerned a sentence imposed by a judge on the appellant, who had pleaded guilty to inciting an act of gross indecency and unlawful sexual intercourse. The judge imposed cumulative sentences of three years imprisonment for unlawful sexual intercourse and three months imprisonment for incitement, before accounting for time already spent in custody. The appellant argued that the judge failed to consider the sentence of a co-accused, that the sentence was manifestly excessive, and that the judge erred in not suspending the sentence.

The central legal issues before the appellate court were whether the sentencing judge had erred by failing to apply the principle of parity with a co-accused, whether the imposed sentence was manifestly excessive, and whether the judge was correct in refusing to suspend the sentence of imprisonment.

The court, comprising White, Kelly, and Peek JJ, found that the principle of parity did not apply. While both the appellant and the co-accused were charged with unlawful sexual intercourse on the same occasion, their specific offences and the circumstances surrounding them differed. Furthermore, the co-accused had been sentenced for additional offences for which the appellant was not charged. Consequently, the court held that the sentence was not manifestly excessive and that the judge had not erred in refusing to suspend the sentence.

The appeal was dismissed. However, the court remitted the matter to the sentencing judge to correct the recording of the sentences to accurately reflect the two separate sentences, their cumulative nature, and the calculation of the non-parole period.