R v Brunker - [2021] NSWDC 301

District Court

New South Wales

Medium Neutral Citation: R v Brunker [2021] NSWDC 301
Hearing dates: 29 January 2021
Decision date: 29 January 2021
Jurisdiction: Criminal
Before: Haesler DC DCJ
Decision:
Aggregate sentence of 4 years with a non-parole period of 2 years.

Catchwords:
CRIME – Aggravated indecent assault victim under the age of 16 years - Aggravated sexual assault victim under the age of 16 years
SENTENCING — Relevant factors on sentence — long delay in reporting – vulnerable victim - abuse of trust – immediate acceptance of responsibility- one off offence by person of otherwise good character- need for care not to double count aggravating matters- victim impact- victim forgiveness for sparing her the ordeal of a trial- delay in sentencing- harsh background- intellectual disability – retribution- victim vindication- no option but a custodial sentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Anderson v R [1981] VR 155
DPP v De La Rosa [2010] NSWCCA 155
Munda v Western Australia (2013) 249 CLR 600 [2013] HCA 38
R v Herring (1956) 73 WN (NSW) 203

Texts Cited:
Royal Commission into Institutional Responses of Sexual Abuse; Commonwealth of Australia (2017)

Category: Sentence
Parties: Brett Lee Brunker (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr G Morrison, Morrisons Law (for the offender)
Ms N Olender (for Director of Public Prosecutions)

File Number(s): 2020/00120092
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.

SENTENCE – EX TEMPORE REVISED

Non-publication

When this judgment is taken out a pseudonym will be used for the name of the complainant. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and the provisions of the Crimes Act1900 there is to be no publication of any information or any other material that identifies or is likely to lead to the complainant’s identity.

Introduction

Brett Bunker was born in 1966. In 1987 he was living and caring for his mother in a northern suburb of Wollongong. The complainant was his friend’s eldest daughter. She was aged 15 and in Year 10 at school. She regarded the offender effectively as her uncle. As is commonly the case in Year 10 the school had a program where a student could have work experience. That work experience took place at the nursery where the offender then worked. It was also arranged that the complainant would stay with the offender overnight so that she could go straight to his work place in the morning. The arrangement was that she was to stay for five days and sleep in his bed and he would sleep on the lounge. His mother would be at the home.
The offender picked the complainant up the evening before her first day of work experience and took her to his home. That first night the…

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 Brunker

Details

AGLC: R v Brunker [2021] NSWDC 301
Case: [2021] NSWDC 301
Decision Date: 29 January 2021

CaseChat Overview and Summary

The defendant, Brunker, was charged with aggravated indecent assault and aggravated sexual assault against a victim under the age of 16 years. The case was heard by the court of appeal in Australia. The primary issue for the court was to determine an appropriate sentence for the defendant, considering the severity of the crimes committed and various factors that could either aggravate or mitigate the sentence.

The court had to weigh several considerations, including the long delay in the reporting of the crime, the vulnerability of the victim, the defendant's abuse of trust, and the immediate acceptance of responsibility. The defendant was of otherwise good character, and this was considered a one-off offence. The court also needed to consider the need for care not to double count aggravating matters, the impact on the victim, and the victim's forgiveness for sparing her the ordeal of a trial. Additionally, the court had to take into account the delay in sentencing, the defendant's harsh background, intellectual disability, retribution, and victim vindication.

After considering all the relevant factors, the court determined that a custodial sentence was necessary. The court imposed an aggregate sentence of 4 years, with a non-parole period of 2 years. The court recognised the severity of the crimes but also considered the mitigating factors and the need for appropriate punishment and rehabilitation for the defendant. The court's decision aimed to balance the need for retribution and victim vindication with the potential for rehabilitation and reintegration into society.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Brunker [2021] NSWDC 301
Hearing dates:	29 January 2021
Decision date:	29 January 2021
Jurisdiction:	Criminal
Before:	Haesler DC DCJ
Decision:	Aggregate sentence of 4 years with a non-parole period of 2 years.
Catchwords:	CRIME – Aggravated indecent assault victim under the age of 16 years - Aggravated sexual assault victim under the age of 16 years SENTENCING — Relevant factors on sentence — long delay in reporting – vulnerable victim - abuse of trust – immediate acceptance of responsibility- one off offence by person of otherwise good character- need for care not to double count aggravating matters- victim impact- victim forgiveness for sparing her the ordeal of a trial- delay in sentencing- harsh background- intellectual disability – retribution- victim vindication- no option but a custodial sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Anderson v R [1981] VR 155 DPP v De La Rosa [2010] NSWCCA 155 Munda v Western Australia (2013) 249 CLR 600 [2013] HCA 38 R v Herring (1956) 73 WN (NSW) 203
Texts Cited:	Royal Commission into Institutional Responses of Sexual Abuse; Commonwealth of Australia (2017)
Category:	Sentence
Parties:	Brett Lee Brunker (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr G Morrison, Morrisons Law (for the offender) Ms N Olender (for Director of Public Prosecutions)
File Number(s):	2020/00120092
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.