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R v Geoffrey Brown

R v Geoffrey Brown

Case [2018] NSWDC 146 8 June 2018

Criminal Liability

Sentencing

Victim Impact

Special Circumstances

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Geoffrey Brown [2018] NSWDC 146
Hearing dates: 08 June 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
An aggregate sentence of 2 years imprisonment with a non-parole period 6 months.

Catchwords: CRIMINAL LAW SENTENCING – indecent assault – child victim – long delay – consistent application of sentencing principle – conflicting purposes of sentencing – victim impact – hardship of imprisonment – aged offender – ill health – special circumstances importance of fact of imprisonment.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Evidence Act 1995
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Barbaro v The Queen (2014) 253 CLR 58
Burrell (2000) 114 A Crim R 207
Clarkson [2011] VSCA 152
Devaney [2012] NSWCCA 285
Fisher (1989) 40 A Crim R 42 at 445.
Hili v The Queen (2010) 242 CLR 520
Hopkins [2010] NSWCCA 105
JDX [2017] NSWCCA 9
Kutchera [2007] NSWCCA 121
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59.
Nguyen v The Queen (2016) 256 CLR 656
PH v R [2009] NSWCCA 161
PWB [2011] NSWCCA 84
Queen v Pham, (2015) 265 CLR 55
R v Gavel [2014] NSWCCA 56
R v MAK [2006] NSWCCA 381
R v MJR [2002] NSWCCCA 129; 54 NSWLR 368
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
Rolfe, unreported, CCA NSW, 25/7/1995
Ryan (2001) 206 CLR 267
Sellen (1991) 57 A Crim R 313
Simpson [2001] NSWCCA 534
Smith (1987) 44 SASR 587
Thompson (2000) 49 NSWLR 383 at [3]
Todd (1982) 2 NSWLR 517 at 519
Category: Sentence
Parties: Geoffrey Brown (Accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr A Williams (for the Accused)
Solicitors:
Mr M Ward (for the Accused)
Ms S Knox (for the Director of Public Prosecutions

File Number(s): 2016/00010555
Publication restriction: Non-publication order not to identify the complainant or other child witnesses

Judgment

Pseudonyms

Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s 578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim and because she is a relative, the offender. Identifying information has been removed from this version of the judgment to comply with the statute. Pseudonyms will be used for the names of the offender and the child victim.

Introduction

On 20 November 2017, Geoffrey Brown accepted his guilt for two very serious offences carried out against his granddaughter, Mary, in October 1997. The offences, pursuant to s61M(2) Crimes Act 1900, then carried a maximum penalty of 10 years imprisonment. The aggravated form of offence applied here, as Mary was under 10 years old, namely four years old. The guilty plea came late. Brown had originally been indicted for a more serious offence with one of these offences…

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 Geoffrey Brown

Details

AGLC: R v Geoffrey Brown [2018] NSWDC 146
Case: [2018] NSWDC 146
Decision Date: 08 June 2018

CaseChat Overview and Summary

The appellant, Geoffrey Brown, was convicted of indecent assault against a child victim, with the case being brought before the court following a significant delay in reporting the offence. The dispute primarily revolved around the appropriate sentence to be imposed, considering the various factors pertinent to sentencing in such cases. The court was tasked with determining the appropriate length and conditions of the sentence, balancing the principles of retribution, deterrence, rehabilitation, and protection of society.

The legal issues before the court included the appropriate application of sentencing principles in light of the long delay in reporting, the conflicting purposes of sentencing such as retribution and rehabilitation, the impact on the victim, and the potential hardship of imprisonment for an elderly offender with health issues. The court had to weigh these considerations against the need to ensure that the sentence reflects the seriousness of the offence and the need to protect the community.

In delivering its judgment, the court carefully considered the principles of sentencing and the specific circumstances of the case. It acknowledged the delay in reporting but emphasised the importance of consistent application of sentencing principles. The court noted the conflicting purposes of sentencing, ultimately finding that the need to protect the community and provide retribution outweighed the potential hardship of imprisonment for the offender. The court also considered the special circumstances, including the age and health of the offender, but determined that these factors did not sufficiently mitigate the need for a custodial sentence. The sentence imposed was an aggregate of 2 years imprisonment, with a non-parole period of 6 months.

Orders

Orders of the court

An aggregate sentence of 2 years imprisonment with a non-parole period 6 months.

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

AGLC Citation

R v Geoffrey Brown [2018] NSWDC 146

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

R v Todd
[2024] NZHC 897 Para 16

…for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: R v Todd (1982) 2 NSWLR 517 at 519.…
Nguyen v The Queen
[2020] HCA 23 Para 42

…or two offences is inextricably linked, judges are allowed considerable flexibility in how the aggregate sentence is structured: Nguyen v The Queen (2016) 256 CLR 656, per Bell and Kean JJ at [36] – [40]. As many of matters to be taken into account overlap considerable concurrence is called for.…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 25

…for particular scepticism required. Dr Ashkar does not appear to be merely parroting words at odds with other material tendered, as occurred in JDX [2017] NSWCCA 9. The material tendered is not put forward as evidence going to an assessment of the objective circumstances of the offences, rather, it sets out offend…
Nguyen v The Queen
[2016] HCA 17 Para 42

…ender’s liability for two offences is inextricably linked, judges are allowed considerable flexibility in how the aggregate sentence is structured: Nguyen v The Queen (2016) 256 CLR 656, per Bell and Kean JJ at [36] – [40]. As many of matters to be taken into account overlap considerable concurrence is called for.…
R v Gavel
[2014] NSWCCA 56 Para 9

…he physical and psychological harm taken to be caused by premature sexual activity”: see Clarkson [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56.…
Barbaro v The Queen
[2014] HCA 2 Para 22

…he exercise of my sentencing discretion. However, each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Bell and Gaegler JJ noted in The Queen v Pham , (2015) 265 CLR 55, at [47]. “…sentencing is a discretionary judgment and the mix of facto…
Devaney v R
[2012] NSWCCA 285 Para 27

…As Allsop P, noted in Devaney [2012] NSWCCA 285, at [88], care needs to be taken not to exclude admissible evidence in tendered Reports by a process going beyond an assessment of weight:…
Clarkson v R
[2011] VSCA 152 Para 9

…ith a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: see Clarkson [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56.…
PWB v R
[2011] NSWCCA 84 Para 17

…In PWB [2011] NSWCCA 84, Justice RA Hulme set out some judicial commission statistics and the result of Judicial Commission research about sentencing offences that occurred last century. The statistics cited noted that in 1994 only 39% of offenders for s 61M(2) offences were sentenced to full time custodial sentenc…
Hili v The Queen
[2010] HCA 45 Para 22

…st sentences other cases do help guide the exercise of my sentencing discretion. However, each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Bell and Gaegler JJ noted in The Queen v Pham , (2015) 265 CLR 55, at [47]. “…sentencing is a disc…
Zhang v The Queen
[2010] NSWCCA 105

…arkson [2011] VSCA 152 Devaney [2012] NSWCCA 285 Fisher (1989) 40 A Crim R 42 at 445. Hili v The Queen (2010) 242 CLR 520 Hopkins [2010] NSWCCA 105 JDX [2017] NSWCCA 9 Kutchera [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59. Nguyen v The Queen (2016) 256 CLR 656 PH v R…
PH v R
[2009] NSWCCA 161 Para 19

…ent to the present matter where there had been considerable delay and no re-offending since: AJB v R [2007] NSWCCA 351; R v Moon , at [81] and PH v R [2009] NSWCCA 161. The following citations are pertinent:…
Bryan v The Queen
[2007] NSWCCA 351 Para 19

…reviewed a number of decisions of Howie J pertinent to the present matter where there had been considerable delay and no re-offending since: AJB v R [2007] NSWCCA 351; R v Moon , at [81] and PH v R [2009] NSWCCA 161. The following citations are pertinent:…
Kutchera v R
[2007] NSWCCA 121

…5 Fisher (1989) 40 A Crim R 42 at 445. Hili v The Queen (2010) 242 CLR 520 Hopkins [2010] NSWCCA 105 JDX [2017] NSWCCA 9 Kutchera [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59. Nguyen v The Queen (2016) 256 CLR 656 PH v R [2009] NSWCCA 161 PWB [2011] NSWCCA 84 Queen v…
AJB v R
[2007] NSWCCA 51 Para 11

…to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39].…
R v MAK
[2006] NSWCCA 381 Para 42

…ct . Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381. However, where, as here, the offender’s liability for two offences is inextricably linked, judges are allowed considerable flexibility in how the ag…
Markarian v The Queen
[2005] HCA 25

…ili v The Queen (2010) 242 CLR 520 Hopkins [2010] NSWCCA 105 JDX [2017] NSWCCA 9 Kutchera [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59. Nguyen v The Queen (2016) 256 CLR 656 PH v R [2009] NSWCCA 161 PWB [2011] NSWCCA 84 Queen v Pham, (2015) 265 CLR 55 R v Gavel [2014]…
R v MJR
[2002] NSWCCA 129 Para 11

…or such matters. That said the offender must to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39].…
R v Simpson
[2001] NSWCCA 534 Para 39

…t long I am also cognisant of the requirement must also properly reflect the gravity of his offences and the manifold purposes of sentencing: Simpson [2001] NSWCCA 534.…
Ryan v The Queen
[2001] HCA 21 Para 50

…so demanded for sexual offences against young children. There is a community expectation that crimes such as these will merit severe punishment: Ryan (2001) 206 CLR 267.…
R v Moon
[2000] NSWCCA 534

…v Pham, (2015) 265 CLR 55 R v Gavel [2014] NSWCCA 56 R v MAK [2006] NSWCCA 381 R v MJR [2002] NSWCCCA 129; 54 NSWLR 368 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 Rolfe, unreported, CCA NSW, 25/7/1995 Ryan (2001) 206 CLR 267 Sellen (1991) 57 A Crim R 313 Simpson [2001] NSWCCA 534 Smith (1987) 44 SASR 587 Thompson…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 45

…es and crimes involving children - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson (2000) 49 NSWLR 383 at [3].…
Mill v The Queen
[1988] HCA 70 Para 41

…e and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour : Mill v The Queen (1988) 166 CLR 59.…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 26)

Medium Neutral Citation:	R v Geoffrey Brown [2018] NSWDC 146
Hearing dates:	08 June 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	An aggregate sentence of 2 years imprisonment with a non-parole period 6 months.
Catchwords:	CRIMINAL LAW SENTENCING – indecent assault – child victim – long delay – consistent application of sentencing principle – conflicting purposes of sentencing – victim impact – hardship of imprisonment – aged offender – ill health – special circumstances importance of fact of imprisonment.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Evidence Act 1995
Cases Cited:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Barbaro v The Queen (2014) 253 CLR 58 Burrell (2000) 114 A Crim R 207 Clarkson [2011] VSCA 152 Devaney [2012] NSWCCA 285 Fisher (1989) 40 A Crim R 42 at 445. Hili v The Queen (2010) 242 CLR 520 Hopkins [2010] NSWCCA 105 JDX [2017] NSWCCA 9 Kutchera [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59. Nguyen v The Queen (2016) 256 CLR 656 PH v R [2009] NSWCCA 161 PWB [2011] NSWCCA 84 Queen v Pham, (2015) 265 CLR 55 R v Gavel [2014] NSWCCA 56 R v MAK [2006] NSWCCA 381 R v MJR [2002] NSWCCCA 129; 54 NSWLR 368 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 Rolfe, unreported, CCA NSW, 25/7/1995 Ryan (2001) 206 CLR 267 Sellen (1991) 57 A Crim R 313 Simpson [2001] NSWCCA 534 Smith (1987) 44 SASR 587 Thompson (2000) 49 NSWLR 383 at [3] Todd (1982) 2 NSWLR 517 at 519
Category:	Sentence
Parties:	Geoffrey Brown (Accused) Director of Public Prosecutions
Representation:	Counsel: Mr A Williams (for the Accused) Solicitors: Mr M Ward (for the Accused) Ms S Knox (for the Director of Public Prosecutions
File Number(s):	2016/00010555
Publication restriction:	Non-publication order not to identify the complainant or other child witnesses