Citation: R v Brannen [2023] NSWDC 356
Court: District Court of New South Wales
Date: 4 September 2023
Judge: Tupman DCJ
Background
The offender, a 20-year-old man, appeared for sentence after pleading guilty to one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred on or about 31 August 2021 at a farmhouse in Cootralantra in the Snowy Monaro region. The victim was 16 years old at the time.
The offender and victim had met through a mutual friend and entered a consensual romantic and sexual relationship. They had engaged in consensual sexual intercourse on several occasions in the weeks leading up to the offence. On the occasion charged, sexual intercourse began with the victim's consent. The offence consisted of the offender continuing penile/vaginal intercourse for approximately one to two minutes after the victim said "stop," ultimately ejaculating before ceasing.
The agreed facts included an admission that the victim did not consent to the continuation of the intercourse and that the offender knew she was no longer consenting. The victim's own perception at the time, as recorded in the agreed facts, was that she was not certain the offender had heard her. The offender subsequently acknowledged fault in a Snapchat exchange the following day, indicating he had been "caught up in the moment."
Legal Issues
- Whether the objective seriousness of the offence warranted full-time imprisonment
- Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring a court to impose imprisonment only where no other sentence is appropriate was crossed
- What weight to assign to the early guilty plea under the Early Appropriate Guilty Plea (EAGP) scheme, including its utilitarian value beyond the automatic 25% discount
- Whether the four-year age difference between the offender and victim constituted an aggravating factor
- Whether this case fell within the rare category of s 61I offences where a non-custodial sentence is appropriate
Decision
Tupman DCJ assessed the objective seriousness of the offending as low. The conduct involved no force, no planning, no use of additional violence, and arose within an established consensual relationship. The offending was a continuation of initially consensual intercourse lasting only one to two minutes. Her Honour noted that the admission in the agreed facts of the offender's actual knowledge that the victim was not consenting slightly increased the objective seriousness, but the overall assessment remained at the low end.
Her Honour declined to treat the four-year age gap as an aggravating factor, rejecting the Crown's submission on this point. The court found the parties were social equals who had entered the relationship voluntarily and as equals. There was no evidence of vulnerability or naivety in the victim, while the offender was described as somewhat naive and unsophisticated himself.
The plea of guilty was given significant weight beyond the standard 25% EAGP discount. Her Honour observed, drawing on the court's own experience, that trials involving factual circumstances similar to these frequently result in acquittals, particularly where the issue of reasonable grounds for belief in consent is nuanced. The plea spared the victim from cross-examination and ensured a conviction. Several mitigating factors were also present: no prior criminal history, genuine remorse, early plea, absence of planning, demonstrated rehabilitation prospects, and over 15 months on bail without breach. Her Honour also noted that any term of imprisonment would carry additional onerous consequences for the offender due to a connection to family law enforcement proceedings.
Applying s 5 of the Crimes (Sentencing Procedure) Act 1999, her Honour found the threshold for imprisonment was not crossed. This was characterised as one of the rare cases under s 61I where a non-custodial sentence is appropriate. A Community Corrections Order (CCO) of two years was imposed, with supervision by Community Corrections for as long as deemed necessary.
Orders Made
- The offender was convicted.
- A Community Corrections Order of two years from 4 September 2023 was imposed, subject to standard conditions.
- A condition of supervision by Community Corrections for as long as deemed necessary was attached.
- The offender was directed to report to the Cooma office of Community Corrections no later than 5:00pm on 8 September 2023.
Key Takeaways
- The District Court confirmed that s 61I offences can, in rare cases, be appropriately dealt with by a non-custodial sentence where objective seriousness is low and substantial mitigating factors are present.
- A guilty plea under the EAGP scheme carries utilitarian value beyond the 25% discount, particularly where the facts of the case are such that a contested trial might realistically result in acquittal and where the victim is spared cross-examination.
- An age difference between offender and victim does not automatically constitute an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999; the court must assess whether the circumstances reflect any meaningful disparity in power, vulnerability, or social position.
- Genuine remorse, demonstrated by contemporaneous admissions to the victim and consistent conduct throughout proceedings, can carry significant mitigating weight in sentencing for sexual offences.
- Where agreed facts have been negotiated under the EAGP scheme, sentencing courts may give careful consideration to the context in which those admissions were made, particularly regarding elements such as the offender's state of knowledge.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Cases:
- Bellchambers v R [2011] NSWCCA 131
- Kramer v R; R v Kramer [2023] NSWCCA 152
- NM v R [2012] NSWCCA 215
- R v Cortese [2013] NSWCCA 148
- Stewart v R [2012] NSWCCA 183