Medium Neutral Citation: R v Brown [2023] NSWDC 477
Hearing dates: 19 October 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1) The offender, having pleaded guilty, is convicted of the offences.
(2) I impose a total aggregate sentence of imprisonment 4 years 6 months to date from 1 February 2023 and to expire on 31 July 2027.
(3) I impose a non-parole period of 3 years 4 months to date from 1 February 2023 and expiring on 31 May 2026.
(4) The earliest date the offender is eligible to be released on parole is 31 May 2026.

Catchwords:
CRIME – sentencing – attempt steal motor vehicle - aggravated enter dwelling house with intent to commit serious indictable offence – larceny - demand property with menaces with intent to steal - intentionally destroy property by fire – possess prohibited drug – Form 1 offences - multiple offences – principle of totality - offences committed whilst on parole – lengthy criminal record - Bugmy principles – guilty plea

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985

Cases Cited:
Alkanaan v R [2017] NSWCCA 56
Bugmy v The Queen [2013] 249 CLR 571
DC v R [2023] NSWCCA 82
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Field v R [2020] NSWCCA 105
Hall v R [2021] NSWCCA 220
Hesketh v R [2021] NSWCCA 262
Hoskins v R [2016] NSWCCA 157
Hoskins v R [2021] NSWCCA 169
Imbornone v R [2017] NSWCCA 144
Lloyd v R [2022] NSWCCA 18
Muldrock v R (2011) 244 CLR 120
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353
Regina v Fidow [2004] NSWCCA 172

Category: Sentence
Parties: Rex (Crown)
Zarad Brown (Offender)
Representation:
Counsel:
Mr Williams (Offender)
Solicitors:
Department of Public Prosecution (DPP) (Crown)
Ross Hill & Associate Solicitors (Offender)

File Number(s): 2022/00150068
Publication restriction: None

Judgment

The offender appeared at Campbelltown Local Court on 21 December 2022, pleading guilty to the following offences: –

Sequence 10 – Attempt steal motor vehicle contrary to s 154F of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment with no standard non-parole period.

Sequence 14 - Aggravated enter dwelling house with intent to commit serious indictable offence, namely, larceny, contrary to s 111(2) of the Crimes Act 1900 carrying a maximum penalty of 14 years imprisonment with no standard non-parole period.

Sequence 15 - Demand property with menaces with intent to steal contrary to s 99(1) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment with no standard non-parole period.

Sequence 7 - Larceny contrary to s 117 of the Crimes Act 1900 carrying a maximum penalty of 5 years…

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 Zarad Brown

Details

AGLC: R v Zarad Brown [2023] NSWDC 477
Case: [2023] NSWDC 477
Decision Date: 03 November 2023

CaseChat Overview and Summary

The defendant, Zarad Brown, faced the court on multiple charges, including the attempted theft of a motor vehicle, aggravated entering of a dwelling with intent to commit a serious indictable offence, larceny, demanding property with menaces with intent to steal, intentionally destroying property by fire, and possession of a prohibited drug. These charges arose from a series of incidents occurring while Brown was on parole, and his extensive criminal history was a significant factor in the court's deliberations.

The court had to determine an appropriate sentence for Brown, considering the principle of totality, the Bugmy principles, and the need to balance the deterrence and denunciation aspects of sentencing with the rehabilitative potential. Given Brown's guilty plea, the court was also required to assess the discount for a plea of guilty, as well as the impact of his actions while on parole. The court needed to weigh the seriousness of the individual offences, their cumulative effect, and the overall impact on the community.

The sentencing judge acknowledged the seriousness of the offences and the need for significant punishment and deterrence. The court recognised Brown's guilty plea and the potential for rehabilitation, but also emphasised the need for denunciation and protection of the community. After considering all relevant factors, the judge imposed a total aggregate sentence of imprisonment for 4 years and 6 months, with a non-parole period of 3 years and 4 months. The earliest date for parole eligibility was set as 31 May 2026. This sentence aimed to reflect the gravity of the offences, provide appropriate punishment, and offer an opportunity for Brown to address his offending behaviour and reintegrate into society.

Orders

Orders of the court

(1) The offender, having pleaded guilty, is convicted of the offences.

(2) I impose a total aggregate sentence of imprisonment 4 years 6 months to date from 1 February 2023 and to expire on 31 July 2027.

(3) I impose a non-parole period of 3 years 4 months to date from 1 February 2023 and expiring on 31 May 2026.

(4) The earliest date the offender is eligible to be released on parole is 31 May 2026.

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 Zarad Brown [2023] NSWDC 477

Most Recent Citation

R v Wong [2025] NSWDC 146

Cases citing this decision · 7 of 7 shown

R v WS
[2025] NSWDC 463 Para 55

…ful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].…
R v BL
[2025] NSWDC 315 Para 61

…ul life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ); R v Brown [2023] NSWDC 477 at [90]).…
R v JH
[2025] NSWDC 314 Para 135

…ful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].…
R v Loo
[2025] NSWDC 267 Para 61

…ul life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ); R v Brown [2023] NSWDC 477 at [90]).…
R v Am
[2025] NSWDC 296 Para 73

…ful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].…
R v Kishinscand
[2025] NSWDC 167 Para 98

…ul life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].…
R v Wong
[2025] NSWDC 146 Para 65

…ul life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].…

View all 7 citing cases →

Cases cited in this decision · 19 of 19 shown

DC v R
[2023] NSWCCA 82 Para 67

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
Director of Public Prosecutions (NSW) v TH
[2023] NSWCCA 81 Para 85

…In respect to the Form 1 offences, as Beech-Jones CJ at CL observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:…
Lloyd v R
[2022] NSWCCA 18 Para 64

…to expert opinion based upon untested history provided by an offender, it is also necessary to consider the observations of McCallum JA in Lloyd v R [2022] NSWCCA 18. The observations from cases such as Qutami are sometimes mistaken for principal, and that the weight and cogency of such evidence is a matter for th…
Hesketh v R
[2021] NSWCCA 262 Para 91

…short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose pun…
Hall v R
[2021] NSWCCA 220 Para 90

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] – [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the “crushing” effect of a long total senten…
Hoskins v R
[2021] NSWCCA 169 Para 66

…I am satisfied that the offenders’ moral culpability is reduced: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169. However as was observed by the High Court in Bugmy this does not detract from the importance of protection of the community depending upon the circumstances. In this case, the offende…
Field v R
[2020] NSWCCA 105 Para 69

…oes not elevate the objective seriousness of the offences, it has an aggravating effect on the imposition of the sentence as explained in Field v R [2020] NSWCCA 105 in so far as it aggravates the sentence by affecting considerations of punishment, deterrence and protection of the community.…
Luque v R
[2017] NSWCCA 226 Para 114

…e significance in his offending. [75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in…
Ryan v Regina
[2017] NSWCCA 209 Para 15

…be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).…
Imbornone v R
[2017] NSWCCA 144 Para 64

…Whilst mindful of authorities such as R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144 as to the approach to expert opinion based upon untested history provided by an offender, it is also necessary to consider the observations of McCallum JA in Lloyd v R [2022] NSWCCA 1…
Alkanaan v R
[2017] NSWCCA 56 Para 79

…that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –…
Hoskins v R
[2016] NSWCCA 157 Para 95

…In Hoskins v R [2016] NSWCCA 157 the Court (Payne JA, McCallum and Wilson JJ) said the following at [88]:-…
Bugmy v The Queen
[2013] HCA 37 Para 66

…I am satisfied that the offenders’ moral culpability is reduced: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169. However as was observed by the High Court in Bugmy this does not detract from the importance of protection of the community depending upon the circumstances. In this case, the o…
Muldrock v The Queen
[2011] HCA 39 Para 79

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposi…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 79

…Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the propos…
R v MAK
[2006] NSWCCA 381 Para 90

…of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] – [17] per Spigelman CJ, Whealy J and Howie JJ).…
R v Fidow
[2004] NSWCCA 172 Para 94

…As Spigelman CJ (with whom Hulme and Adams JJ agreed) in Regina v Fidow [2004] NSWCCA 172 at [22]: –…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 3

…nunciated by the Court of Criminal Appeal in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.…
R v Qutami
[2001] NSWCCA 353 Para 64

…Whilst mindful of authorities such as R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144 as to the approach to expert opinion based upon untested history provided by an offender, it is also necessary to consider the observations of McCallum JA in Lloyd v R [2022] NSWCCA 1…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Brown [2023] NSWDC 477
Hearing dates:	19 October 2023
Date of orders:	3 November 2023
Decision date:	03 November 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender, having pleaded guilty, is convicted of the offences. (2) I impose a total aggregate sentence of imprisonment 4 years 6 months to date from 1 February 2023 and to expire on 31 July 2027. (3) I impose a non-parole period of 3 years 4 months to date from 1 February 2023 and expiring on 31 May 2026. (4) The earliest date the offender is eligible to be released on parole is 31 May 2026.
Catchwords:	CRIME – sentencing – attempt steal motor vehicle - aggravated enter dwelling house with intent to commit serious indictable offence – larceny - demand property with menaces with intent to steal - intentionally destroy property by fire – possess prohibited drug – Form 1 offences - multiple offences – principle of totality - offences committed whilst on parole – lengthy criminal record - Bugmy principles – guilty plea
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	Alkanaan v R [2017] NSWCCA 56 Bugmy v The Queen [2013] 249 CLR 571 DC v R [2023] NSWCCA 82 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Field v R [2020] NSWCCA 105 Hall v R [2021] NSWCCA 220 Hesketh v R [2021] NSWCCA 262 Hoskins v R [2016] NSWCCA 157 Hoskins v R [2021] NSWCCA 169 Imbornone v R [2017] NSWCCA 144 Lloyd v R [2022] NSWCCA 18 Muldrock v R (2011) 244 CLR 120 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353 Regina v Fidow [2004] NSWCCA 172
Category:	Sentence
Parties:	Rex (Crown) Zarad Brown (Offender)
Representation:	Counsel: Mr Williams (Offender) Solicitors: Department of Public Prosecution (DPP) (Crown) Ross Hill & Associate Solicitors (Offender)
File Number(s):	2022/00150068
Publication restriction:	None