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District Court 20 May 2022

R v Simon BRANDT

[2022] NSWDC 469

Sexual offences
CRIME SEXUAL OFFENCES SEXUAL ASSAULT CONSENT

Citation: R v Simon Brandt [2022] NSWDC 469
Court: District Court of New South Wales
Date: 20 May 2022
Judge: Buscombe DCJ

Background

The offender was tried before a judge and jury at Newcastle District Court on a single count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The complainant and the offender had met online through a Facebook group and, prior to the events in question, had communicated by Facebook Messenger, including in some sexually explicit exchanges. They had not met in person before the night of the offence.

On New Year's Eve 2018, both attended a camping trip at Nine Mile Beach in the Lake Macquarie area. In the early hours of 1 January 2019, the offender and the complainant entered her tent and commenced consensual penile/vaginal intercourse. The offender then digitally penetrated the complainant's anus without her consent on two separate occasions during the same encounter, continuing after she had expressly told him to stop.

The jury returned a verdict of guilty on 2 February 2022. The judgment reported here concerns the sentencing proceedings that followed.

  • What facts could be found for sentencing purposes, consistent with the jury's verdict?
  • What was the objective seriousness of the offence?
  • What weight should be given to the offender's subjective circumstances, including his prospects of rehabilitation and the conditions of custody during the COVID-19 pandemic?
  • Whether a non-custodial sentence was appropriate, and whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Facts for sentencing: Buscombe DCJ found the facts consistent with the jury's verdict, which implicitly accepted the complainant as an honest and reliable witness and rejected the offender's account that he had stopped when asked. The judge found that the offender, after an initial digital anal penetration during which the complainant expressly said "Stop, no, I don't want you to do that," then used his body weight to pin her leg and forcibly inserted two fingers into her anus. The complainant had to kick him in the chest to free herself. It was this second act that constituted the charged offence.

Objective seriousness: The judge assessed the offence as serious, though not at the highest end of the range. While digital penetration is generally considered less serious than penile penetration, the court emphasised that the offender acted with actual knowledge of the complainant's non-consent, having been expressly told twice that she did not want anal intercourse. Force was used to pin the complainant's leg, and there was a clear element of violation in the conduct.

Custodial sentence: The District Court rejected the submission that a community correction order was appropriate. The court observed that, while no rule requires exceptional or unusual circumstances before a non-custodial sentence can be imposed, it is very rare for an offender convicted after trial for sexual intercourse without consent to receive a non-custodial penalty. The limited cases where this had occurred generally involved young adult offenders or those with significant mental health issues, neither of which applied here.

Special circumstances: The court found special circumstances justifying a departure from the standard non-parole period ratio, citing the offender's reasonable to good prospects of rehabilitation, the fact that this was his first time in custody, and the more onerous conditions of imprisonment during the COVID-19 pandemic. A longer parole period was considered appropriate to support rehabilitation.

Orders Made

  • The offender was convicted of sexual intercourse without consent.
  • Sentenced to imprisonment for a total term of two years and two months.
  • Non-parole period of 14 months, commencing 20 May 2022 and expiring 19 July 2023.
  • Balance of term of 12 months, with the total sentence expiring 19 July 2024.

Key Takeaways

  • The District Court confirmed that, for sentencing purposes, facts adverse to an offender must be established beyond reasonable doubt, and a jury's guilty verdict can indicate acceptance of the complainant's account over the offender's.
  • Actual knowledge of non-consent, as distinct from recklessness, is a more serious fault element: the court treated it as a significant factor in assessing objective seriousness where the Crown case was confined to that higher fault level.
  • A conviction after trial for sexual intercourse without consent will very rarely attract a non-custodial sentence; the court's survey of comparable cases found non-custodial outcomes were largely confined to young adult offenders or those with significant mental health issues.
  • Special circumstances under the sentencing regime can be established by a combination of factors including first-time imprisonment, good rehabilitation prospects, and the additional hardship of custody during the COVID-19 pandemic.
  • Under s 61I of the Crimes Act 1900, the offence carries a maximum of 14 years' imprisonment and a standard non-parole period of seven years, both of which serve as legislative guideposts rather than automatic outcomes.

Legislation and Cases Referenced

Legislation
- s 61I Crimes Act 1900 (NSW): sexual intercourse without consent
- s 21A Crimes (Sentencing Procedure) Act 1999 (NSW): aggravating and mitigating factors

Cases
- Bussey v R [2020] NSWCCA 280
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194