R v Brown (No 3) - [2022] ACTSC 180

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Brown (No 3)
Citation:	[2022] ACTSC 180
Hearing Dates:	15 October 2021, 25 February 2022, 18 July 2022
DecisionDate:	20 July 2022
Before:	Elkaim J
Decision:	(i) The conviction is confirmed. (ii) For the offence of engaging in a sexual relationship with a young person the offender is sentenced to a term of imprisonment of two years six months and 14 days to commence today and end on 2 February 2025. (iii) I set a non-parole period of 17 months to commence today and end on 19 December 2023.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – engaging in a sexual relationship with a young person – mental impairment – Verdins principles – whether an Intensive Corrections Order is appropriate – whether a term of imprisonment is suitable – conviction confirmed – term of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT) s 55A, 56 Crimes (Sentencing) Act 2005 (ACT) ss 6,7, 10, 33 Criminal Code 2002 (ACT) s 33 Corrections Management Act 2007 (ACT) s 53
Cases Cited:	Meissner v Queen (1995) 184 CLR 132 R v Brown [2021] ACTSC 274 R v Brown (No 2) [2022] ACTSC 179 R v DU (No 4) [2020] ACTSC 174 R v Michalopoulos [2020] ACTSC 27 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Srna [2018] ACTSC 337 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 240 R v Whittaker [2021] ACTSC 189
Parties:	The Queen (Crown) John Ronald Brown (Offender)
Representation:	Counsel T Hickey and A Williamson (Crown) J Purnell SC (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender)
File Numbers:	SCC 84 of 2021

ELKAIM J:

On 25 August 2021 the offender pleaded guilty to one count, in an indictment dated 4 May 2021, of engaging in a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) (SCCAN2021/65). The maximum penalty is 25 years’ imprisonment.

This matter originally came before me on 15 October 2021. The offender sought an adjournment which was opposed by the Crown. I granted the adjournment for the reasons that are set out in a separate decision (R v Brown [2021] ACTSC 274).

The matter came before me again on 25 February 2022 (R v Brown (No 2) [2022] ACTSC 179). By that date the Crown had gathered some further evidence, a pre-sentence report had been prepared and the offender had obtained further medical evidence.

The facts behind the offending are set out in detail in the Agreed Statement of Facts. The following is a summary. The offensive relationship occurred over a period of about six weeks stretching from late December 2019 to early February 2020. The victim was 15 years old, but had only just reached this age.

The offender was born in 1972. He was…

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 Brown (No 3)

Details

AGLC: R v Brown (No 3) [2022] ACTSC 180
Case: [2022] ACTSC 180
Decision Date: 20 July 2022

CaseChat Overview and Summary

The case before the court involved the defendant, Brown, who had been convicted of engaging in a sexual relationship with a young person, a crime under Australian criminal law. The case was heard in the higher court on appeal from a lower court's sentencing decision, where Brown's appeal against his sentence was considered. The court had to decide whether the sentence imposed by the lower court was appropriate, taking into account the principles of Verdins and the offender's mental impairment. The primary legal issues were whether an Intensive Corrections Order would be suitable for Brown, or if a term of imprisonment would be more appropriate.

The court considered the principles set out in Verdins, which require the court to consider the offender's mental state and the nature of the offence in determining an appropriate sentence. The court found that Brown's mental impairment was a significant factor in his offending behaviour, but this did not excuse his actions. The court also considered the principles of deterrence, denunciation, and rehabilitation in determining the appropriate sentence. Ultimately, the court found that an Intensive Corrections Order would not be suitable for Brown, as it would not adequately address the risks he posed to the community. Instead, the court imposed a term of imprisonment, taking into account the offender's mental impairment and the need to protect the community.

The court confirmed the conviction and imposed a sentence of imprisonment for two years, six months, and 14 days, with a non-parole period of 17 months. The court found that this sentence was appropriate given the seriousness of the offence and the need to protect the community. The court also noted that Brown's mental impairment was a significant factor in his offending behaviour, but this did not excuse his actions. The court's decision was based on a careful consideration of the principles of sentencing and the facts of the case. The final orders of the court confirmed the conviction and imposed the sentence of imprisonment as outlined above.

Orders

Orders of the court

(i) The conviction is confirmed.

(ii) For the offence of engaging in a sexual relationship with a young person the offender is sentenced to a term of imprisonment of two years six months and 14 days to commence today and end on 2 February 2025.

(iii) I set a non-parole period of 17 months to commence today and end on 19 December 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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