R v Murray & R v Brazier - [2022] NSWDC 597

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Murray & R v Brazier [2022] NSWDC 597
Hearing dates: 17 February 2022; 18 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Criminal
Before: Judge R Tupman
Decision:
Katherine Anne Murray :
Taking into account matter on a Form 1, the offender is sentenced to imprisonment for a term of 6 years with a non-parole period of 3 years.
Montana Pamela-Anne Brazier:
The offender is sentenced to imprisonment for a period of 12 months with a non-parole period of 6 months.

Catchwords:
CRIMINAL LAW – Sentence – Aggravated sexual assault in company – Victim alleged to have stolen drugs and secreted in body – Offender Murray part of joint criminal enterprise with 2 other women – Attempts to recover stolen drugs by cavity search and forced – Offender Murray not physically present during cavity search or forced self-manipulation - No sexual connotation but nonetheless within definition of sexual intercourse without consent – Co offender concealed knowledge of this serious indictable offence but low objective criminality

Legislation Cited:
Crimes Act 1900 (NSW),
Criminal Procedure Act 1986 (NSW).

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
R v Fernando (1992) 76 A Crim R 58
Qoro v R [2008] NSWCCA 220
Weatherall v R [2013] NSWCCA 282

Category: Sentence
Parties: The Crown
Katherine Anne Murray
Montana Pamela-Anne Brazier
Representation:
Counsel:
Mr J Smith for the Crown
Ms S Hall for offender Murray
Mr P Kemp for offender Brazier
Solicitors:
Director of Public Prosecutions

File Number(s): 2021/00091552; 2021/00091563
Publication restriction: There is to be no publication of the name of the complainant or any material which may tend to identify the complainant.

Judgment

HER HONOUR: Each of the offenders is before the Court for sentence charged with different offences but arising out of the same circumstance and as such, the sentences are being heard together.
Katherine Murray pleaded guilty in the Local Court on 8 September 2021 to two offences. One was an offence contrary to s 61JA(1) of the Crimes Act 1900 (NSW), being sequence 16, of aggravated sexual intercourse in company. Specifically, the charge before the Court is that on 5 September 2020 at Uralla, while in company with another person, she had sexual intercourse with the named complainant without her consent knowing that she was not consenting, and for a period before the sexual intercourse deprived the complainant of her liberty. This offence carries a maximum penalty of life imprisonment with a standard non‑parole period of 15 years. She has adhered to that plea of guilty in this Court.
She also pleaded guilty at the same time to an offence which is sequence 10, an offence contrary to s 80(2A) of the Crimes Act 1900, of sexual assault by forced self-manipulation. Specifically, the charge is that on 5 September 2020 at Uralla in company with another person, the offender compelled the complainant by means 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 Murray & R v Brazier

Details

AGLC: R v Murray & R v Brazier [2022] NSWDC 597
Case: [2022] NSWDC 597
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the case of R v Murray and R v Brazier, the defendants were involved in an aggravated sexual assault in company. The victims alleged that they had stolen drugs which were then secreted in their bodies. Murray was part of a joint criminal enterprise with two other women who attempted to recover the stolen drugs by conducting a cavity search and forcing the victims to self-manipulate. Murray did not physically participate in the cavity search or forced self-manipulation, but the act was nonetheless considered sexual intercourse without consent as defined by law. Co-offender Brazier concealed knowledge of this serious indictable offence but was found to have low objective criminality.

The legal issues before the court were the appropriate sentences for Murray and Brazier. The court had to consider the nature and circumstances of the offence, the degree of culpability of each offender, and the need for deterrence and rehabilitation. The court also had to determine whether Murray's actions constituted an aggravated sexual assault in company and whether Brazier's concealment of the offence was indicative of her level of culpability.

The court found that Murray's actions constituted an aggravated sexual assault in company as they were part of a joint criminal enterprise and the forced self-manipulation fell within the definition of sexual intercourse without consent. The court considered the low objective criminality of Brazier but found that her concealment of the offence was indicative of her level of culpability. The court sentenced Murray to imprisonment for a term of 6 years with a non-parole period of 3 years and Brazier to imprisonment for a period of 12 months with a non-parole period of 6 months. The court found that the sentences were appropriate given the nature and circumstances of the offence and the degree of culpability of each offender.

In conclusion, the court found that Murray's actions constituted an aggravated sexual assault in company and sentenced her to imprisonment for 6 years with a non-parole period of 3 years. The court found that Brazier's concealment of the offence was indicative of her level of culpability and sentenced her to imprisonment for 12 months with a non-parole period of 6 months. The sentences reflect the appropriate balance between punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Katherine Anne Murray :

Taking into account matter on a Form 1, the offender is sentenced to imprisonment for a term of 6 years with a non-parole period of 3 years.

Montana Pamela-Anne Brazier:

The offender is sentenced to imprisonment for a period of 12 months with a non-parole period of 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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Medium Neutral Citation:	R v Murray & R v Brazier [2022] NSWDC 597
Hearing dates:	17 February 2022; 18 February 2022
Date of orders:	18 February 2022
Decision date:	18 February 2022
Jurisdiction:	Criminal
Before:	Judge R Tupman
Decision:	Katherine Anne Murray : Taking into account matter on a Form 1, the offender is sentenced to imprisonment for a term of 6 years with a non-parole period of 3 years. Montana Pamela-Anne Brazier: The offender is sentenced to imprisonment for a period of 12 months with a non-parole period of 6 months.
Catchwords:	CRIMINAL LAW – Sentence – Aggravated sexual assault in company – Victim alleged to have stolen drugs and secreted in body – Offender Murray part of joint criminal enterprise with 2 other women – Attempts to recover stolen drugs by cavity search and forced – Offender Murray not physically present during cavity search or forced self-manipulation - No sexual connotation but nonetheless within definition of sexual intercourse without consent – Co offender concealed knowledge of this serious indictable offence but low objective criminality
Legislation Cited:	Crimes Act 1900 (NSW), Criminal Procedure Act 1986 (NSW).
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 Qoro v R [2008] NSWCCA 220 Weatherall v R [2013] NSWCCA 282
Category:	Sentence
Parties:	The Crown Katherine Anne Murray Montana Pamela-Anne Brazier
Representation:	Counsel: Mr J Smith for the Crown Ms S Hall for offender Murray Mr P Kemp for offender Brazier Solicitors: Director of Public Prosecutions
File Number(s):	2021/00091552; 2021/00091563
Publication restriction:	There is to be no publication of the name of the complainant or any material which may tend to identify the complainant.