R v Brannen - [2023] NSWDC 356

District Court

New South Wales

Medium Neutral Citation: R v Brannen [2023] NSWDC 356
Hearing dates: 29 March, 31 August 2023
Decision date: 04 September 2023
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
(1) The offender is convicted.
(2) The offender is sentenced to a Community Corrections Order for a period of 2 years commencing 4 September 2023.
(3) The standard conditions of the order apply.
(4) The offender is to accept supervision from Community Corrections for as long as deemed necessary by them.
(5) The offender is to report to Cooma Community Corrections no later than 5:00pm on 8 September 2023.

Catchwords:
CRIME – sentence – one offence – sexual intercourse without consent – s61I Crimes Act 1900 – maximum penalty 14 years imprisonment – standard non-parole period 7 years – EAGP scheme – 25% discount on sentence – offender aged 20 and victim aged 16 – met through mutual friend – offender asked victim to be his girlfriend over FaceTime and they moved in together – engaged in consensual sexual intercourse on several occasions throughout course of relationship
OFFENCE – continuation of penile/vaginal intercourse for about 1-2 minutes after initial consensual penile/vaginal intercourse – no force – offender wearing condom and ejaculated – victim said stop – admitted by offender in agreed facts that victim was not consenting and offender knew that she was not consenting – agreed fact that victim was not sure offender had heard her when she said stop – snapchat exchange day following offence indicated offender initially misunderstood reason for victim saying stop but then admitted fault and said that he had accidentally been caught up in the moment
OBJECTIVE SERIOUSNESS – low – increased slightly by admission of actual knowledge – plea of guilty of high utilitarian value in addition to EAGP discount – victim spared cross examination and conviction ensured – reference to Court’s experience that similar trials often lead to acquittals – age difference found not significant and Crown submission that it increased objective seriousness rejected – offender and victim were equals – no evidence of vulnerability or naivety of the victim but offender somewhat naïve and unsophisticated
FACTORS – no aggravating factors – several mitigating factors – no prior criminal convictions – early plea – not planned – genuine remorse – demonstrated prospects of rehabilitation – on bail 15 months without breach – any gaol term would be onerous because of family law enforcement connection
SENTENCE – s3A purposes of sentencing addressed – s5 threshold not crossed – falls into category of rare case for S61I offence

Legislation Cited:
Crimes Act 1900 (NSW): s 61I
Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases Cited:
Bellchambers v R [2011] NSWCCA 131
Kramer v R; R v Kramer [2023] NSWCCA 152
NM v R [2012] NSWCCA 215
R v Cortese [2013] NSWCCA 148
Stewart v R [2012] NSWCCA 183

Category: Sentence
Parties: Rex (Crown)
Christian Memphis Brannen (Offender)
Representation:
Counsel:
J Moffett (Offender)
Solicitors:
North Herring Lawyers (Offender)
Solicitor for…

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 Brannen

Details

AGLC: R v Brannen [2023] NSWDC 356
Case: [2023] NSWDC 356
Decision Date: 04 September 2023

CaseChat Overview and Summary

In the case of R v Brannen, the defendant was convicted and sentenced by the Supreme Court of New South Wales for engaging in sexual intercourse without the consent of the victim, an offence under section 61I of the Crimes Act 1900. The offender, who was 20 years old at the time, continued to have intercourse with the 16-year-old victim for about one to two minutes after she expressed her lack of consent, despite knowing she was not consenting. The maximum penalty for this offence is 14 years imprisonment, with a standard non-parole period of seven years. However, due to the Early Accepted Guilty Plea (EAGP) scheme, a 25% discount was applied to the sentence.

The court had to determine the appropriate sentence for the offence, considering the low objective seriousness of the crime, the offender's genuine remorse, and the lack of any aggravating factors. The court also noted the high utilitarian value of the plea of guilty, which spared the victim from cross-examination and ensured a conviction. Additionally, the court acknowledged the mitigating factors such as the offender's early plea, lack of prior criminal convictions, and demonstrated prospects of rehabilitation. The court found that the age difference between the offender and the victim was not significant and rejected the Crown's submission that it increased the objective seriousness of the offence.

After considering all the factors, the court concluded that the case fell into the category of a rare case for a s61I offence. The offender was sentenced to a Community Corrections Order for a period of two years, commencing on 4 September 2023, with the standard conditions of the order applying. The offender was also required to accept supervision from Community Corrections for as long as deemed necessary by them and to report to Cooma Community Corrections no later than 5:00pm on 8 September 2023.

Orders

Orders of the court

(1) The offender is convicted.

(2) The offender is sentenced to a Community Corrections Order for a period of 2 years commencing 4 September 2023.

(3) The standard conditions of the order apply.

(4) The offender is to accept supervision from Community Corrections for as long as deemed necessary by them.

(5) The offender is to report to Cooma Community Corrections no later than 5:00pm on 8 September 2023.

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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Medium Neutral Citation:	R v Brannen [2023] NSWDC 356
Hearing dates:	29 March, 31 August 2023
Decision date:	04 September 2023
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	(1) The offender is convicted. (2) The offender is sentenced to a Community Corrections Order for a period of 2 years commencing 4 September 2023. (3) The standard conditions of the order apply. (4) The offender is to accept supervision from Community Corrections for as long as deemed necessary by them. (5) The offender is to report to Cooma Community Corrections no later than 5:00pm on 8 September 2023.
Catchwords:	CRIME – sentence – one offence – sexual intercourse without consent – s61I Crimes Act 1900 – maximum penalty 14 years imprisonment – standard non-parole period 7 years – EAGP scheme – 25% discount on sentence – offender aged 20 and victim aged 16 – met through mutual friend – offender asked victim to be his girlfriend over FaceTime and they moved in together – engaged in consensual sexual intercourse on several occasions throughout course of relationship OFFENCE – continuation of penile/vaginal intercourse for about 1-2 minutes after initial consensual penile/vaginal intercourse – no force – offender wearing condom and ejaculated – victim said stop – admitted by offender in agreed facts that victim was not consenting and offender knew that she was not consenting – agreed fact that victim was not sure offender had heard her when she said stop – snapchat exchange day following offence indicated offender initially misunderstood reason for victim saying stop but then admitted fault and said that he had accidentally been caught up in the moment OBJECTIVE SERIOUSNESS – low – increased slightly by admission of actual knowledge – plea of guilty of high utilitarian value in addition to EAGP discount – victim spared cross examination and conviction ensured – reference to Court’s experience that similar trials often lead to acquittals – age difference found not significant and Crown submission that it increased objective seriousness rejected – offender and victim were equals – no evidence of vulnerability or naivety of the victim but offender somewhat naïve and unsophisticated FACTORS – no aggravating factors – several mitigating factors – no prior criminal convictions – early plea – not planned – genuine remorse – demonstrated prospects of rehabilitation – on bail 15 months without breach – any gaol term would be onerous because of family law enforcement connection SENTENCE – s3A purposes of sentencing addressed – s5 threshold not crossed – falls into category of rare case for S61I offence
Legislation Cited:	Crimes Act 1900 (NSW): s 61I Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A
Cases Cited:	Bellchambers v R [2011] NSWCCA 131 Kramer v R; R v Kramer [2023] NSWCCA 152 NM v R [2012] NSWCCA 215 R v Cortese [2013] NSWCCA 148 Stewart v R [2012] NSWCCA 183
Category:	Sentence
Parties:	Rex (Crown) Christian Memphis Brannen (Offender)
Representation:	Counsel: J Moffett (Offender) Solicitors: North Herring Lawyers (Offender) Solicitor for…