R v Simon Brandt

[2022] NSWDC 469

District Court

New South Wales

Medium Neutral Citation:

R v Simon BRANDT [2022] NSWDC 469

Hearing dates:

22 March 2022

Date of orders:

20 May 2022

Decision date:

20 May 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed of two years and two months imprisonment, consisting of a non-parole period of 14 months and a balance of term of 12 months.

Catchwords:

CRIME – Sexual offences – Sexual assault - Consent

Legislation Cited:

S 61I Crimes Act 1900 (NSW)

Cases Cited:

Bussey v R [2020] NSWCCA 280

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Australian Criminal Law Group (Offender)

File Number(s):

2019/00344328

Publication restriction:

Statutory non-publication order re identity of complainant

Judgment

Introduction

1. The offender, Simon Brandt, stood trial before me and a jury at Newcastle between 23 January and 2 February this year on an indictment containing a single count that, on 1 January 2019 at Belmont, he had sexual intercourse with JF without her consent, knowing that she had not consented to the sexual intercourse. On 2 February the jury returned a verdict of guilty. The offence is an offence under s 61I of the Crimes Act 1900 and carries a maximum penalty of 14 years’ imprisonment and there is a standard non‑parole period of seven years’ imprisonment.

The facts

2. These are sentence proceedings after trial and I am required to find the facts, consistent with the jury’s verdict. To the extent that a finding of fact is made adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt. I find the following facts for the purposes of sentencing, consistent with the jury’s verdict, which is an indication the jury found the victim to be an honest and reliable witness, having clearly rejected the offender’s evidence that when the complainant said stop during their sexual encounter, he desisted in any sexual activity with her.

3. The victim, JF, in the latter half of 2018 was a sole parent residing with her two young children in Warners Bay and was 31 years of age. The offender and the victim commenced communicating online through a Facebook group. As at October 2018, the offender was aged 39 years of age, resided in Victoria, but travelled to see his two young sons in the Lake Macquarie area every month. Prior to meeting in person, the offender and the victim communicated regularly over Facebook Messenger. A number of their online exchanges were of an explicit sexual nature, some in which digital penetration of the victim’s anus and vagina were referred to.

4. Through the Facebook group I referred to earlier, the victim received an invitation to a camping trip at Nine Mile Beach to celebrate New Year’s Eve, and the victim extended that invitation to the offender. On 30 December 2018, other members of the Facebook group, which included Luke Parkinson, Tracey Nolan-Petigree and Sylvia Kuijpers, who were friends of the victim, were at the site.…