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R v Brownlowe

R v Brownlowe

Case [2004] NSWCCA 465 20 December 2004

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CITATION: R v Brownlowe [2004] NSWCCA 465

HEARING DATE(S): 14 December 2004

JUDGMENT DATE:
20 December 2004

JUDGMENT OF: Wood CJ at CL at 1; Simpson J at 2; Barr J at 46

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: application for leave to appeal against sentences - detaining for advantage - aggravated sexual assault - indecent assault - total accumulation of sentences imposed in respect of rape offences on the sentence imposed in respect of detention offence - common elements between offences - relevance of sentencing patterns from foreign jurisdictions - synchronicity with English guidelines - parity - whether overall sentence imposed has been shown to be manifestly excessive

LEGISLATION CITED: Crimes Act 1900, s61J, s61L, s90A

CASES CITED: Lowe v The Queen [1984] HCA 46; 154 CLR 606
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Billam [1986] 1 All ER 985; 1 WLR 349
R v Millbery; R v Morgan; R v Lackenby [2002] EWCA Crim 2891; [2003] 2 All ER 939
Siganto v The Queen [1998] HCA 74; 194 CLR 656

PARTIES :
Crown - Respondent
Raymond Brownlowe - Applicant

FILE NUMBER(S): CCA 2002/2507

COUNSEL: DC Frearson SC - Crown
P Byrne SC/ I McLachlan - Applicant

SOLICITORS: SE O'Connor - Crown
Ross Hill & Associates - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/51/0054

LOWER COURT
JUDICIAL OFFICER : Job ADCJ

2002/2507

WOOD CJ at CL
SIMPSON J
BARR J
Monday 20 December 2004

REGINA v Raymond BROWNLOWE

Judgment

1 WOOD CJ at CL: I agree with Simpson J, and also with the observations of Barr J, save for one minor reservation. I can see a limited role for a reference to authorities, including guideline judgments from other jurisdictions, when this Court is itself considering an application for a guideline judgment. Otherwise, however, I do not consider that such judgments are of any assistance and I would seriously discourage their use.

2 SIMPSON J: On 13 March 2002, following a trial which had commenced on 18 February, the applicant was found by a jury in the District Court at Parramatta to be guilty of all counts on an indictment which charged the applicant with one count of detaining for advantage, five counts of aggravated sexual assault and one count of indecent assault. Pursuant to s90A of the Crimes Act 1900 (the section applicable at the time the offences were committed), the charge of detaining for advantage carried a maximum term of imprisonment for 20 years (or if it were proved to the satisfaction of the sentencing judge that the victim had been liberated without substantial injury) 14 years; pursuant to s61J, the offences of aggravated sexual assault each carried a maximum penalty of 25 years’ imprisonment; and pursuant to s61L the charge of indecent assault carried a maximum term of imprisonment for five years.

3 On 6 June 2002 Acting Judge Job sentenced…

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 Brownlowe

Details

AGLC: R v Brownlowe [2004] NSWCCA 465
Case: [2004] NSWCCA 465
Decision Date: 20 December 2004

CaseChat Overview and Summary

The parties involved in the case were the Crown, acting on behalf of the State, and the respondent, Brownlowe, who was the accused. Brownlowe was convicted of multiple serious offences, including detaining for advantage, aggravated sexual assault, and indecent assault. The dispute centred on the sentences imposed by the court and whether they were excessive. The matter was heard in the Court of Appeal, where Brownlowe sought leave to appeal against the sentences.

The legal issues before the Court of Appeal revolved around the total accumulation of sentences for the rape offences in relation to the sentence for the detention offence, the presence of common elements between the offences, and the relevance of sentencing patterns from foreign jurisdictions. The Court also considered whether the overall sentence imposed was manifestly excessive, taking into account synchronicity with English sentencing guidelines and the principle of parity.

In delivering the judgment, the Court of Appeal noted that while the overall sentence imposed on Brownlowe was indeed lengthy, it was not manifestly excessive. The Court found that the trial judge had adequately considered the principles of synchronicity and parity, and had taken into account the severity of the offences and the need for deterrence and denunciation. The Court held that the sentences imposed were within the range of appropriate penalties for the crimes committed and were not disproportionate or excessive.

The Court of Appeal dismissed the application for leave to appeal against the sentences, confirming the sentences imposed by the trial judge. The Court found that the trial judge had properly exercised their discretion in determining the appropriate sentences for the offences committed by Brownlowe, and that the sentences were not manifestly excessive.

Orders