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Court of Criminal Appeal 13 July 2020

Branagan v R

[2020] NSWCCA 158

Sexual offencesTheft & property
CRIME APPEALS APPEAL AGAINST AGGREGATE SENTENCE LIMITATIONS OF SENTENCING STATISTICS

Citation: Branagan v R [2020] NSWCCA 158
Court: Court of Criminal Appeal, New South Wales
Date: 13 July 2020
Judge(s): Bathurst CJ, Price J (principal judgment), N Adams J

Background

The applicant was convicted by a jury in the District Court at Sydney of three offences against a single victim: aggravated break, enter and commit a serious indictable offence (sexual intercourse without consent, contrary to s 112(2) of the Crimes Act 1900 (NSW)); indecent assault (s 61L); and committing an act of indecency (s 61N(2)). All offences occurred in the victim's bedroom in her inner-city home in the early hours of 8 October 2017.

The circumstances were that the applicant had accompanied the victim's housemate home that evening and was present when the housemate assisted the victim, who had fallen asleep on the toilet, to her bedroom. Before 6:00am, the applicant left the granny flat, climbed onto the roof, and entered the main premises through a closed but unlocked window. He then entered the victim's closed bedroom. The victim woke to find the applicant in her bed with his penis in her mouth.

The District Court sentenced the applicant to an aggregate term of 5 years and 6 months imprisonment with a non-parole period of 3 years and 3 months. The indicative sentence for the principal count (count 1) was 5 years with a non-parole period of 3 years. The applicant sought leave to appeal on two grounds: error in assessing the objective criminality of count 1, and manifest excess in the aggregate sentence.

  • Whether the sentencing judge erred in her assessment of the objective criminality of count 1 (aggravated break, enter and sexual assault) and thereby elevated the indicative sentence
  • Whether the indicative sentence for count 1 was manifestly excessive, having regard to sentencing statistics and comparable cases
  • Whether the aggregate sentence of 5 years and 6 months was manifestly excessive or unreasonable and plainly unjust

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's assessment of objective criminality. The judge had correctly identified both the aggravating and mitigating features of count 1: the applicant had been an invited guest on the property; the specific circumstance of aggravation (awareness of other persons in the premises) was comparatively less serious than others available for the offence type; there was no force, violence, threat or intimidation; and the act of sexual intercourse lasted only seconds. Against those matters, the judge properly weighed that the victim was asleep and thus had no opportunity to express non-consent, and that the applicant had, at some point, formed an intention to engage in sexual activity with her while she slept. The judge placed the objective seriousness at or just under the middle of the range, which the Court of Criminal Appeal found was open.

On the use of sentencing statistics, Price J reiterated the well-established principle that statistics are a tool of limited utility. They may identify a possible range and expose an anomaly warranting further examination, but they cannot displace the need for individualised instinctive synthesis. The Court found that the statistics relied upon by the applicant did not demonstrate error.

On manifest excess, the Court rejected the submission that the aggregate sentence was unreasonable or plainly unjust. The three counts all arose from conduct in a single incident in the victim's own bedroom, a place where she was entitled to feel safe and secure. N Adams J, in a brief concurring judgment, emphasised that the applicant's entry into the victim's bedroom through the roof while she slept meant this was not a minor example of the offence, notwithstanding the absence of a pre-formed intention to commit a sexual offence when the break and enter began.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's characterisation of the objective criminality of aggravated break, enter and sexual assault where the victim was asleep and thus deprived of any opportunity to express non-consent, even absent force or premeditation.
  • A comparatively less serious circumstance of aggravation under s 112(2) (knowledge that persons were in the premises) does not automatically reduce objective seriousness to the lower end of the range when the substantive offending is itself serious.
  • Sentencing statistics remain an instrument of limited value: the Court of Criminal Appeal reaffirmed that they may identify an anomaly for closer scrutiny but cannot substitute for individualised sentencing by instinctive synthesis.
  • In dismissing the appeal, the Court confirmed that the absence of planning to commit the sexual offence at the time of entry does not preclude a finding that the overall conduct constitutes a serious example of the offence.
  • The aggregate sentencing framework operates by reference to an instinctive synthesis of all relevant features; an applicant must demonstrate that the aggregate result is unreasonable or plainly unjust, a threshold the Court found was not met here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61L, 61N(2), 105A, 112(2)

Cases
- Barbaro v The Queen (2014) 253 CLR 58
- BJS v R [2013] NSWCCA 123
- Field v R [2020] NSWCCA 105
- Hili v The Queen (2010) 242 CLR 520
- Ibbs v The Queen (1987) 163 CLR 447
- JM v R [2014] NSWCCA 297
- Lees v R [2019] NSWCCA 65
- Markarian v The Queen (2005) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155
- PD v R [2012] NSWCCA 244
- R v Huynh [2005] NSWCCA 220
- R v PGM [2008] NSWCCA 172
- R v Simpson (1992) 61 A Crim R 58
- Wong v The Queen (2001) 207 CLR 584