Legal Research
Cases
R v Brand (a pseudonym)

R v Brand (a pseudonym)

Case [2025] SASCA 17 27 February 2025

Statutory Interpretation

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BRAND (A PSEUDONYM)
[2025] SASCA 17
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
27 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The respondent, aged 41, first met the victim, aged 14, when she purchased cannabis from him. The victim began to regularly visit the respondent at his home to purchase cannabis, and an unlawful sexual relationship developed thereafter.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child (Count 1), and one count of supplying a controlled drug to a child (Count 2). In respect of Count 1, the sentencing judge commenced with a starting point of five years imprisonment, reduced by five per cent to four years and nine months. In respect of Count 2, the sentencing judge commenced with a starting point of 12 months imprisonment, reduced by five per cent to 11 months and 13 days. The sentencing judge ordered that these sentences be served cumulatively, resulting in a head sentence of imprisonment of five years, eight months and 13 days, with a non-parole period of three years.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed for both counts on the ground of manifest inadequacy. The respondent submits that even if permission to appeal is granted, the Court has a “residual discretion” to dismiss the appeal.
Held, allowing the appeal and resentencing the respondent on Count 1:
1.The sentence imposed was manifestly inadequate, as the offending was protracted and the age disparity between the respondent and victim significant.
2.Having regard to the context and purpose of the Criminal Procedure Act 1921 (SA), the Court does not have a residual discretion to dismiss an appeal against sentence where permission to appeal has been granted.
3. The respondent is resentenced to a head sentence of 11 years, four months and 25 days with a non-parole period of six years and 10 months.

Controlled Substances Act 1984 (SA) s 33F; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 150, 157, 158; Legislation Interpretation Act 2021 (SA) s 16, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Fox v Percy (2003) 214 CLR 118; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v A2 (2019) 269 CLR 507; R v Buttigieg (2020) 352 FLR 170; R v D (1997) 69 SASR 413; R v Drewett (1983) 35 SASR 344; R v Dyett

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 R v Brand (a pseudonym)

Details

AGLC: R v Brand (a pseudonym) [2025] SASCA 17
Case: [2025] SASCA 17
Decision Date: 27 February 2025

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Brand (a pseudonym), who had pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of persistent sexual abuse of a child. The appeal concerned the exercise of the sentencing judge's discretion and whether the sentence was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the original sentence of 18 months imprisonment, suspended upon the respondent entering into a recognisance of $1000 to be of good behaviour for two years, was demonstrably inadequate, thereby justifying the Crown's appeal. The Court was required to consider the principles governing appeals against sentence, particularly when the Crown contends that the sentence is too lenient.

The Court acknowledged the sentencing judge's careful consideration of the respondent's personal circumstances, including his age, lack of prior convictions, and the impact of the offending on his mental health. However, the Court found that insufficient weight had been given to the gravity of the offences, the vulnerability of the child victim, and the need for general deterrence. The Court emphasised that while rehabilitation and individual circumstances are important, they must be balanced against the seriousness of the offending and the community's interest in denunciation and deterrence, especially in cases involving sexual abuse of children. The Court concluded that the original sentence failed to adequately reflect these considerations.

Consequently, the Full Court allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent to two years imprisonment, with a non-parole period of 12 months.

Orders