R v Michael Brown* - [2010] NSWDC 344

CITATION: R v Michael BROWN* [2010] NSWDC 344
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE:
17 September 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: A non-parole period of 2 years and a balance of the term of 2 years.

CATCHWORDS: CRIME - sentence - conviction after jury trial - sexual intercourse without consent - victim is ex-girlfriend of offender - victim and offender have young child - offence lies in the lower range of objective seriousness - relatively short duration and unplanned - penile/vaginal intercourse involving ejaculation - breach of trust - threat - victim impact statement - no relevant criminal record - pre-sentence report - character references - unlikely to re-offend - good prospects of rehabilitation

LEGISLATION CITED: Crimes Act 1900 s 61I
Crimes (Sentencing Procedure) Act 1999 s21A

PARTIES: Regina
Michael Brown

FILE NUMBER(S): 2009/1939

COUNSEL: Mr FDL Holles for the Director of Public Prosecutions
Mr G Scragg for the offender

JUDGMENT

1. Things became too much for Michael Brown on the early morning of 3 August 2008. His relationship with Julie White was over. His unfounded jealously regarding another man spiked the night before when all three happened to be together at a hotel. Mr Brown was permitted to share the bed of his former girlfriend Julie White on trust. She even permitted him to share the shower with her that morning.

2. When she refused him a cuddle, that became not acceptable to Mr Brown who stepped in that moment from being a young man highly regarded in his local [place] community to being a criminal. He raped Julie White. He inflicted on his former girlfriend a very serious form of violence.

3. This morning I have to sentence Mr Brown, who has been found guilty by a jury of the crime of sexual intercourse without consent of Julie White.

4. I pause here to say to any members of the public that the name Julie White, or any means of identifying her, is not to be published outside this courtroom. It is an offence to do so. One means of identifying her is to refer to Michael Brown because his name is readily connected with hers.

5. The crime of sexual intercourse without consent is an offence against s 61 I of the Crimes Act 1900. It carries a maximum penalty of fourteen years imprisonment. Not only that, Parliament regards the offence as so serious that it has provided for a standard non-parole period of seven years, as well as the maximum sentence.

6 It is important in sentencing anyone, for the judge to set out briefly what happened in the crime so that the offender and the public are aware of the facts on which the judge has based his or her decision. Also the judge needs to make an assessment of how serious an example the particular crime is of the sort of…

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 Michael Brown*

Details

AGLC: R v Michael Brown* [2010] NSWDC 344
Case: [2010] NSWDC 344
Decision Date: 17 September 2010

CaseChat Overview and Summary

Michael Brown was charged with engaging in sexual intercourse without the consent of the victim, his ex-girlfriend, who was also the mother of his child. The case was heard by the Supreme Court of Victoria. The central issue before the court was to determine the appropriate sentence for Brown, taking into account the various mitigating and aggravating factors. The court was required to consider the nature of the offence, the impact on the victim, the character of the offender, and the likelihood of rehabilitation.

In addressing the sentencing, the court evaluated the offence's severity, noting that while it was serious, it lay in the lower range due to its relatively short duration and unplanned nature. The court highlighted the breach of trust and the threat involved in the offence. It also considered the victim's impact statement, which detailed the emotional and psychological harm suffered. The court took into account Brown's lack of a criminal record and the positive character references provided. The pre-sentence report indicated that Brown had good prospects of rehabilitation and was unlikely to re-offend. Based on these factors, the court determined a non-parole period of two years and a total sentence of four years, with the balance of the term being two years.

The court issued a final order for Brown to serve a total sentence of four years, with a non-parole period of two years. This decision reflects the court's balanced approach in considering both the gravity of the offence and the mitigating factors presented.

Orders

Orders of the court

A non-parole period of 2 years and a balance of the term 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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CITATION:	*R v Michael BROWN [2010] NSWDC 344 This decision has been amended. Please see the end of the judgment for a list of the amendments.**
JUDGMENT DATE:	17 September 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	A non-parole period of 2 years and a balance of the term of 2 years.
CATCHWORDS:	CRIME - sentence - conviction after jury trial - sexual intercourse without consent - victim is ex-girlfriend of offender - victim and offender have young child - offence lies in the lower range of objective seriousness - relatively short duration and unplanned - penile/vaginal intercourse involving ejaculation - breach of trust - threat - victim impact statement - no relevant criminal record - pre-sentence report - character references - unlikely to re-offend - good prospects of rehabilitation
LEGISLATION CITED:	Crimes Act 1900 s 61I Crimes (Sentencing Procedure) Act 1999 s21A
PARTIES:	Regina Michael Brown
FILE NUMBER(S):	2009/1939
COUNSEL:	Mr FDL Holles for the Director of Public Prosecutions Mr G Scragg for the offender