Citation: R v Murray & R v Brazier [2022] NSWDC 597
Court: District Court of New South Wales
Date: 18 February 2022
Judge: Judge R Tupman
Background
The offences arose from a drug theft in September 2020 in the Armidale and Uralla area of New South Wales. A group had attended a co-offender's address to purchase drugs, and one member of the group stole methylamphetamine. A violent pursuit followed, involving a car being forced off the road and rolled, and the theft victims being detained at knifepoint.
The complainant, who was a passenger in the fleeing vehicle, became separated from the others and was subsequently taken to a house in Uralla. There, the first offender (Murray, the homeowner) and others formed the view that the complainant had retained some of the stolen drugs concealed within her body. Acting on that suspicion, Murray participated in a joint criminal enterprise that resulted in a cavity search of the complainant and the complainant being compelled by threats to engage in self-manipulation, in an attempt to recover the drugs.
The second offender (Brazier, Murray's daughter) had knowledge of the broader circumstances, including an aggravated kidnapping committed by co-offenders, but failed to report that information to police. Both offenders were sentenced together as their offending arose from the same factual background.
Legal Issues
- Whether Murray's conduct, although motivated by drug recovery rather than sexual gratification, constituted aggravated sexual intercourse without consent and sexual assault by forced self-manipulation under the Crimes Act 1900 (NSW)
- The appropriate sentences for Murray, given her role in a joint criminal enterprise and the nature of her participation (which did not include physical presence during the actual offences)
- The appropriate sentence for Brazier for concealing knowledge of a serious indictable offence (aggravated kidnapping), including the weight to be given to her late guilty plea and her personal circumstances
- The relevance of Bugmy principles and Fernando considerations in assessing the moral culpability of both offenders, given their backgrounds and circumstances
Decision
Judge Tupman confirmed that Murray's conduct fell squarely within the statutory definitions of aggravated sexual intercourse without consent and sexual assault by forced self-manipulation, notwithstanding that the acts carried no sexual connotation. The purpose was to recover concealed drugs, but the legal character of the conduct met the statutory definitions. Murray was not physically present during the cavity search or the forced self-manipulation, but was party to the joint criminal enterprise that produced those acts.
In sentencing Murray, her Honour took into account the serious maximum penalties (life imprisonment for the primary offence under s 61JA(1) and 20 years for the s 80(2A) offence), the circumstances of the enterprise, and Murray's personal history including the Bugmy principle (which recognises that profound disadvantage, particularly childhood deprivation, may reduce moral culpability without diminishing the need for deterrence). The Form 1 offence (the forced self-manipulation count) was taken into account when sentencing for the principal offence.
For Brazier, the concealment offence under s 316(1) carries a maximum of three years' imprisonment. Her Honour found the objective criminality to be relatively low. Brazier was never originally charged with this offence, and she pleaded guilty at the first opportunity once it was put to her. A 25% discount was applied for the guilty plea. Her mental health issues were also taken into account as reducing her suitability as a vehicle for general deterrence. Partial accumulation of the concealment sentence with a separate drug supply sentence was ordered, with a six-month overlap.
Orders Made
- Murray: Convicted and sentenced to a total term of six years' imprisonment, comprising a non-parole period of three years commencing 10 December 2021 and expiring 9 September 2024, with a parole period of three years commencing 10 December 2024 and expiring 9 December 2027. The Form 1 offence (sexual assault by forced self-manipulation) was taken into account.
- Brazier: Convicted and sentenced to a total term of 12 months' imprisonment, comprising a non-parole period of six months commencing 23 March 2022 and expiring 22 September 2022, with a parole period of six months commencing 23 September 2022 and expiring 22 March 2023. Partial accumulation with a pre-existing drug supply sentence, with a six-month overlap.
Key Takeaways
- Conduct that meets the statutory definition of sexual intercourse without consent can constitute an offence under the Crimes Act 1900 even where the act carries no sexual motivation or connotation. The District Court confirmed this in the context of a cavity search conducted solely to recover stolen drugs.
- A participant in a joint criminal enterprise may be convicted of aggravated sexual assault in company without being physically present during the act itself, provided the requisite elements of participation and knowledge are established.
- Under the Bugmy principle, a history of profound personal disadvantage may reduce an offender's moral culpability, though it does not eliminate the sentencing purposes of deterrence and community protection.
- The Fernando principles apply where an offender is Aboriginal and relevant social disadvantage exists, informing but not overriding the sentencing discretion.
- A guilty plea entered at the first available opportunity to a charge not originally prosecuted can attract a meaningful discount, even where the plea comes late in overall proceedings, provided the timing is explained by the circumstances in which the charge emerged.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61JA(1), 80(2A), 316(1)
- Criminal Procedure Act 1986 (NSW)
Cases
- 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