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Court of Criminal Appeal 20 December 2023

Brown v R

[2023] NSWCCA 330

Sexual offences
CRIMES APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE RANGE SENTENCE IS MANIFESTLY EXCESSIVE

Citation: Brown v R [2023] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 20 December 2023
Judges: Leeming JA, Garling J, Cavanagh J (Cavanagh J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court to two offences of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offending occurred on a single occasion in January 2022, when the applicant, then aged 54, arranged to meet a 14-year-old victim through the online platform Flingster and engaged in sexual activity with him in a public toilet over approximately one hour. Two further related offences were taken into account on a Form 1 (a mechanism by which additional, uncharged offences are formally noted at sentencing and may influence the sentence imposed).

The District Court sentenced the applicant to an aggregate term of 4 years and 9 months' imprisonment with a 3-year non-parole period, commencing 10 February 2022. The applicant had received a 25 percent discount for his early guilty plea, and the sentencing judge had identified several relevant subjective factors, including psychiatric evidence.

The applicant sought leave to appeal to the Court of Criminal Appeal on three grounds, contending that the sentencing judge erred in assessing the objective seriousness of the offending, erred in assessing his rehabilitative prospects, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offending by placing excessive weight on the age difference between the applicant and the victim
  • Whether the sentencing judge erred in her assessment of the applicant's prospects of rehabilitation, particularly by not accepting the opinion of the psychiatrist who gave evidence
  • Whether the aggregate sentence of 4 years and 9 months was manifestly excessive having regard to comparable cases and the circumstances of the offending

Decision

Ground 1: Objective seriousness. The Court dismissed this ground. A sentencing judge is not obliged to classify relevant factors according to any particular scale or to enumerate the weight given to each individual factor. The sentencing judge had identified all relevant considerations, and the applicant failed to identify any specific error in how they were weighed. The Court found no demonstrated error in the assessment of objective seriousness.

Ground 2: Rehabilitative prospects. The Court also dismissed this ground. When a party challenges a sentencing judge's finding of fact, the question is whether that finding was open on the material before the court. The Court confirmed, drawing on DS v R; DM v R (2022) 109 NSWLR 82, that a sentencing judge is not bound to accept a psychiatrist's opinion on rehabilitation prospects. The sentencing judge and a medical expert perform different roles, and rehabilitation involves a broader range of considerations beyond expert opinion alone. The applicant had not established that the finding was not open to the sentencing judge.

Ground 3: Manifest excess. This ground succeeded. The Court compared the sentence against those imposed in cases with similar fact patterns and found the aggregate term was obviously high. The original sentence was more consistent with cases involving multiple offences committed on separate occasions or offences accompanied by violence, neither of which applied here. The Court was satisfied the sentence was not merely stern but was so high as to be plainly unjust.

On resentencing, Cavanagh J adopted the original sentencing judge's findings on objective seriousness and the agreed facts, but departed on one point: he found the applicant's prospects of rehabilitation to be good, taking into account his continuing community support, good behaviour in custody, active engagement in education and vocational training, and willingness to pursue counselling and criminogenic coursework.

Orders Made

  • Leave to appeal granted
  • Grounds 1 and 2 dismissed
  • Ground 3 upheld; applicant resentenced
  • Aggregate sentence of imprisonment of 3 years and 3 months, commencing 10 February 2022 and expiring 9 May 2025
  • Non-parole period of 2 years, expiring 9 February 2024

Key Takeaways

  • A sentencing judge is not required to assign explicit weight to each individual sentencing factor; failure to do so does not constitute a reviewable error on appeal.
  • Where rehabilitation prospects are challenged as a finding of fact, the appellate question is whether that finding was open on the material before the sentencing court, not whether the appellate court would have reached a different conclusion.
  • A sentencing judge is not bound to accept expert psychiatric evidence on rehabilitation; the assessment of rehabilitative prospects involves a broader enquiry than medical opinion alone.
  • In dismissing the first two grounds but upholding manifest excess, the Court of Criminal Appeal reduced an aggregate sentence from 4 years and 9 months to 3 years and 3 months, reflecting the importance of comparing sentences against cases with genuinely comparable fact patterns.
  • Offences committed in a single, continuous course of conduct without violence are, on the Court's analysis, distinguishable from offences occurring on multiple occasions or involving physical force, and sentences should reflect that distinction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 66C(3), 61M(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)

Cases
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Alarcon v The Queen [2018] NSWCCA 298
- Azzopardi v R [2019] NSWCCA 306
- Beavis v The Queen [2018] NSWCCA 248
- Bell v R [2019] NSWCCA 251
- Blackett v The Queen [2021] NSWCCA 210
- Hurmz v R [2017] NSWCCA 235
- Kenny v The Queen [2010] NSWCCA 6
- Kirby v R [2021] NSWCCA 162
- McDowall v R [2019] NSWCCA 29
- Mulato v R [2006] NSWCCA 282
- Muniandy v R [2021] NSWCCA 305
- O'Brien v The Queen [2013] NSWCCA 197
- Pleasance v R [2016] NSWCCA 113
- R v Dagwell [2006] NSWCCA 98
- R v RD [2014] NSWCCA 103
- R v Wright [2017] NSWCCA 102