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R v Brennan (a pseudonym)

R v Brennan (a pseudonym)

Case [2023] NSWDC 328 13 April 2023

Aggravated & Exemplary Damages

Sentencing

Vicarious Liability

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Brennan (a pseudonym) [2023] NSWDC 328
Hearing dates: 13 April 2023
Date of orders: 13 April 2023
Decision date: 13 April 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years

Catchwords:
CRIME — aggravated breaking into the dwelling house and committing the serious indictable offence of robbery armed with a dangerous weapon — Deal with the proceeds of crime
SENTENCING — Relevant factors on sentence — guilty plea — factual dispute - role of offender — evidence contrary to the agreed facts tendered — a grave offence — victim impact — complicated history involving domestic violence trauma mental illness and substance use — demonstrated progress to rehabilitation — offender vulnerable in prison

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
Bugmy v The Queen [(2013) CLR 42; [2013] HCA 37
Burns v R [2010] NSWCCA 279
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Moodie v R [2020] NSWCCA 160
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Olbrich v The Queen (1999)199 CLR 270; [1999] HCA 54
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Alcock [2023] NSWDC 326
R v Gee NSWDC 327
R v Millwood [2012] NSWCCA 2
R v Munn [2022] NSWDC 264
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Ramos v R [2018] NSWCCA 206

Category: Sentence
Parties: Charlie Brennan (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
J Hibbard (for the offender)
N Keay (Director of Public Prosecutions) (the Crown)
Solicitors:
Maguire & McInerney Lawyers (for the offender)
Solicitor for Public Prosecutions (for the Crown)

File Number(s): 2022/207654
Publication restriction: Order that the name of the offender, Brennan, is suppressed and any identifying features removed. A non-publication order is applied in relation to anything that identifies, or may identify, the offender. The suppression order is has an exception allowing for full publication to the legal advisers for the purposes of proceedings in relation to the co-accused. This judgment has been redacted: Court Suppression and Non-publication Orders Act 2010 (NSW)

sentence – ex tempore revised

Introduction – a violent robbery

In the early hours of the morning of 10 February there was a violent robbery at a home in Southern Wollongong.
Signed Agreed Facts were put before the Court. They note that four men…

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 Brennan (a pseudonym)

Details

AGLC: R v Brennan (a pseudonym) [2023] NSWDC 328
Case: [2023] NSWDC 328
Decision Date: 13 April 2023

CaseChat Overview and Summary

The case of R v Brennan involved an individual charged with aggravated breaking into a dwelling house and committing the serious indictable offence of robbery armed with a dangerous weapon, along with dealing with the proceeds of crime. The case was heard in the Supreme Court, where the sentencing of the defendant was the primary focus. The court was tasked with determining an appropriate sentence considering several complex factors.

The legal issues the court had to address included the defendant's guilty plea, the role they played in the crime, and the impact of the offence on the victim. Additionally, the court considered the defendant's complicated personal history, which included domestic violence, mental illness, and substance use, alongside evidence that was contrary to the agreed facts. The court also evaluated the offender's demonstrated progress towards rehabilitation and their vulnerability in prison.

The court weighed the gravity of the offence against the defendant's personal circumstances and the mitigating factors presented. The judge acknowledged the serious nature of the crimes but also recognised the defendant's efforts towards rehabilitation and their vulnerable position in prison. The court ultimately decided on an aggregate imprisonment sentence of 4 years with a non-parole period of 2 years, reflecting a balanced approach to the sentencing considerations presented.

Orders

Orders of the court

Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years

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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Citations

R v Brennan (a pseudonym) [2023] NSWDC 328

Most Recent Citation

R v Alcock [2023] NSWDC 326

Cases Citing This Decision

R v Kominkovski [2023] NSWDC 511
Citation 1 (Para 45)

…layton Love’s mother). Clayton Love’s matter was stood over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamberlain unreported NSWDC 25 May 2022.…
R v Alcock [2023] NSWDC 326
Citation 2 (Para 33)

…recruited them into, and significant penalties were imposed upon them: R v Munn [2023] NSWDC 264; R v Gee [2023] NSWDC 327; R v Brennan (a pseudonym) [2023] NSWDC 328.…

See all citing cases →

Cases Cited

R v Alcock [2023] NSWDC 326
Citation 1 (Para 45)

…eriously as I did when I dealt with Alcock, although that matter was on a Form 1, or with other people who dealt with Alcock’s proceeds: R v Alcock [2023] NSWDC 326. Those men, Munn and Gee, have previously been sentenced: R v Munn [2022] NSWDC 264; R v Gee NSWDC 327.…
R v Munn [2022] NSWDC 264
Citation 2 (Para 45)

…with other people who dealt with Alcock’s proceeds: R v Alcock [2023] NSWDC 326. Those men, Munn and Gee, have previously been sentenced: R v Munn [2022] NSWDC 264; R v Gee NSWDC 327.…
Moodie v R [2020] NSWCCA 160
Citation 3 (Para 47)

…ordinary case of armed robbery. While not prescriptive that guideline must be taken into account: s 42A Crimes (Sentencing Procedure) Act; Moodie v R [2020] NSWCCA 160.…
Ramos v R [2018] NSWCCA 206
Citation 4

…v Gee NSWDC 327 R v Millwood [2012] NSWCCA 2 R v Munn [2022] NSWDC 264 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Ramos v R [2018] NSWCCA 206 Category: Sentence Parties: Charlie Brennan (the offender) Director of Public Prosecutions (the Crown) Representation: Counsel: J Hibbard (for the offender) N Keay (Director…
R v Simpson [2016] SASCFC 83
Citation 5 (Para 64)

…t be the minimum period necessary, taking into account all relevant factors, that reflects the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
The Queen v Putra Hendra [2014] ACTSC 102
Citation 6 (Para 48)

…bjective seriousness without reference to matters personal to the defendant, solely by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 ; [2011] HCA 39 at [27]. I do not engage in a staged approach to sentencing nor am I required to fix this matter on some notional scale.…
R v Camilla Krutsky [2013] ACTSC 297
Citation 7 (Para 23)

…As the High Court explained in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, while there may be an understanding, between the prosecutor and the defendant, as to the evidence that will be led, including agreed facts, that does not necessarily bind the judge. Except in the practical sense that the judge’s capacit…
Magaming v The Queen [2013] HCA 40
Citation 8 (Para 53)

…e a person will serve in prison, regardless of whether they are party to a joint criminal enterprise or not: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.…
Bugmy v The Queen [2013] HCA 37
Citation 9 (Para 55)

…Alcock’s personal history required the application of the principles discussed in R v Millwood [2012] NSWCCA 2 and Bugmy v The Queen (2013) CLR 42; [2013] HCA 37. My starting point for him was a sentence of 9 years, before the plea of guilty, but that took into account the Form 1.…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 10 (Para 54)

…nt, the Form 1 can lead to a greater sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146.…
R v Millwood [2012] NSWCCA 2
Citation 11 (Para 55)

…Alcock’s personal history required the application of the principles discussed in R v Millwood [2012] NSWCCA 2 and Bugmy v The Queen (2013) CLR 42; [2013] HCA 37. My starting point for him was a sentence of 9 years, before the plea of guilty, but that took into account the Form 1.…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 12 (Para 53)

…The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.…
Muldrock v The Queen [2011] HCA 39
Citation 13 (Para 48)

…without reference to matters personal to the defendant, solely by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 ; [2011] HCA 39 at [27]. I do not engage in a staged approach to sentencing nor am I required to fix this matter on some notional scale.…
Burns v R [2010] NSWCCA 279
Citation 14 (Para 44)

…ispose of the proceeds of crime. There is a need to punish offenders for the individual criminality involved with the dealing of the goods: Burns v R [2010] NSWCCA 279.…
R v Mark Thomas Garvin [2009] ACTSC 87
Citation 15 (Para 24)

…s not circumscribed by the conduct of counsel, “It is for the sentencing judge alone to decide the sentence to be imposed”: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.…
GAS v The Queen [2004] HCA 22
Citation 16 (Para 23)

…As the High Court explained in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, while there may be an understanding, between the prosecutor and the defendant, as to the evidence that will be led, including agreed facts, that does not necessarily bind the judge. Except in the practical sense that the judge’s ca…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 17 (Para 54)

…lead to a greater sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146.…
R v Simpson [2001] NSWCCA 534
Citation 18 (Para 64)

…That period must be the minimum period necessary, taking into account all relevant factors, that reflects the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Cheung v The Queen [2001] HCA 67
Citation 19 (Para 24)

…h v The Queen (1999) 199 CLR 270; [1999] HCA 54. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.…
R v Olbrich [1999] HCA 54
Citation 20

…[2013] HCA 40 Moodie v R [2020] NSWCCA 160 Muldrock v The Queen (2011) 244 CLR 120 ; [2011] HCA 39 Olbrich v The Queen (1999)199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Alcock [2023] NSWDC 326 R v Gee NSWDC 327 R v Millwood [2012] NSWCCA 2 R v Munn [2022] NSWDC 264…
R v Henry [1999] NSWCCA 111
Citation 21 (Para 47)

…I also have to take into account the Court of Criminal Appeal decision and guideline judgment in Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346. That guideline referred to what the Court there said was an ordinary case of armed robbery. While not prescriptive that guideline must be taken into account: s 42A Crimes…
R v Henry [1999] NSWCA 111
Citation 22 (Para 47)

…I also have to take into account the Court of Criminal Appeal decision and guideline judgment in Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346. That guideline referred to what the Court there said was an ordinary case of armed robbery. While not prescriptive that guideline must be taken into account: s 42A Crimes (…
Postiglione v the Queen [1997] HCA 26
Citation 23 (Para 53)

…ty to a joint criminal enterprise or not: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49.…

Legislation Cited

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 54)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Brennan (a pseudonym) [2023] NSWDC 328
Hearing dates:	13 April 2023
Date of orders:	13 April 2023
Decision date:	13 April 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years
Catchwords:	CRIME — aggravated breaking into the dwelling house and committing the serious indictable offence of robbery armed with a dangerous weapon — Deal with the proceeds of crime SENTENCING — Relevant factors on sentence — guilty plea — factual dispute - role of offender — evidence contrary to the agreed facts tendered — a grave offence — victim impact — complicated history involving domestic violence trauma mental illness and substance use — demonstrated progress to rehabilitation — offender vulnerable in prison
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146 Bugmy v The Queen [(2013) CLR 42; [2013] HCA 37 Burns v R [2010] NSWCCA 279 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Moodie v R [2020] NSWCCA 160 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Olbrich v The Queen (1999)199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Alcock [2023] NSWDC 326 R v Gee NSWDC 327 R v Millwood [2012] NSWCCA 2 R v Munn [2022] NSWDC 264 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Ramos v R [2018] NSWCCA 206
Category:	Sentence
Parties:	Charlie Brennan (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: J Hibbard (for the offender) N Keay (Director of Public Prosecutions) (the Crown) Solicitors: Maguire & McInerney Lawyers (for the offender) Solicitor for Public Prosecutions (for the Crown)
File Number(s):	2022/207654
Publication restriction:	Order that the name of the offender, Brennan, is suppressed and any identifying features removed. A non-publication order is applied in relation to anything that identifies, or may identify, the offender. The suppression order is has an exception allowing for full publication to the legal advisers for the purposes of proceedings in relation to the co-accused. This judgment has been redacted: Court Suppression and Non-publication Orders Act 2010 (NSW)