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Court of Criminal Appeal 13 August 2025

Brown (a pseudonym) v R

[2025] NSWCCA 124

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS FINDING NOT INEVITABLE MISCARRIAGE OF JUSTICE SENTENCING

Citation: Brown (a pseudonym) v R [2025] NSWCCA 124
Court: Court of Criminal Appeal, New South Wales
Date: 13 August 2025
Judges: Hamill J, Chen J, McNaughton J

Background

The applicant (referred to by the pseudonym "Brown") was convicted by a jury in the District Court of 16 counts of sexual offending against a complainant who was between 6 and 18 years of age at the time. The offences spanned more than a decade, from January 1992 to November 2003. The sentencing judge imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 11 years.

At sentencing, the Crown identified specific aggravating factors it relied upon. The sentencing judge then found, without the parties having addressed it, that the offences were further aggravated because the injury, emotional harm, loss or damage caused was "substantial" within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant was not given the opportunity to make submissions on that finding. In reaching the finding, the sentencing judge also used the word "significant" rather than "substantial," raising a question about whether the correct legal test had been applied.

The applicant sought leave to appeal on four grounds: denial of procedural fairness in finding the aggravating factor; application of the wrong test when assessing harm; manifest excess in the aggregate sentence; and an error in the commencement date of the sentence.

  • Whether the sentencing judge denied the applicant procedural fairness by finding a harm-based aggravating factor that had not been raised or identified at the sentencing hearing
  • Whether the sentencing judge applied the incorrect legal test by finding "significant" rather than "substantial" harm when determining whether s 21A(2)(g) of the Sentencing Act was made out
  • Whether the aggregate sentence of 16 years with an 11-year non-parole period was manifestly excessive
  • Whether the sentencing judge erred in setting the commencement date for the sentence, by failing to account for four days of pre-sentence custody

Decision

Ground 1: Procedural fairness. The Court held that the way the sentencing proceedings were conducted led the applicant to believe that only the aggravating factors identified by the Crown would be considered. The applicant was therefore deprived of the opportunity to make submissions on whether the s 21A(2)(g) aggravating factor was established. The Court found this constituted a miscarriage of justice.

Ground 2: Incorrect test. The Court confirmed that for the s 21A(2)(g) aggravating factor to be established, the sentencing court must be satisfied beyond reasonable doubt that the harm caused extended beyond what is ordinarily encompassed in offences of the kind in question. By referring to "significant" rather than "substantial" harm, and given the absence of submissions on the point, the Court could not assume the sentencing judge had simply misspoken. This ground was made out.

Ground 3: Manifest excess. Despite the errors on Grounds 1 and 2, the Court conducted the re-sentencing exercise itself and was satisfied, on the basis of the victim impact statement, that the emotional harm suffered was properly characterised as substantial. McNaughton J found the harm was not merely inherent in the nature of the offences: the abuse was committed by a close family member over many years, within a manipulative and isolating religious environment, and the offending escalated over time. The Court concluded that no lesser indicative sentence for any individual count, and no lesser aggregate sentence, was warranted in law. Hamill J reached the same conclusion on the aggregate sentence but took a different path, declining to apply the s 21A(2)(g) aggravating factor and instead treating the victim impact statement as relevant to the objective seriousness of the offending under s 25AA(3) of the Sentencing Act.

Ground 4: Commencement date. The respondent accepted that the sentencing judge had not accounted for four days the applicant spent in pre-sentence custody. The Court adjusted the commencement date of the sentence accordingly.

Orders Made

  • Time to file the notice of appeal extended
  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentence of 16 years' imprisonment with a non-parole period of 11 years, as imposed in the District Court, confirmed
  • Sentence commences 1 September 2023 and concludes 31 August 2039, with the applicant eligible for parole on 1 September 2034

Key Takeaways

  • A sentencing court that finds an aggravating factor not identified or relied upon by the Crown during the sentencing hearing, without inviting submissions from the parties, may deny the offender procedural fairness and produce a miscarriage of justice, even where the finding might ultimately have been open on the evidence.

  • Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the test for the harm-based aggravating factor requires proof beyond reasonable doubt that the injury, emotional harm, loss or damage caused by the offence extended beyond what is ordinarily encompassed in offences of that kind. Using the word "significant" instead of "substantial" was not treated as an obvious slip where no submissions had been made on the point.

  • Procedural error in finding an aggravating factor does not automatically result in a reduced sentence. The Court of Criminal Appeal may itself undertake the re-sentencing exercise and, where the victim impact statement independently supports a finding of substantial harm, may confirm the original aggregate sentence.

  • Victim impact statements can constitute evidence capable of satisfying the "substantial harm" threshold under s 21A(2)(g), particularly where the statements describe harm arising from offending that was prolonged, escalating, and committed within a context of manipulation and trust.

  • Where a sentencing judge fails to account for pre-sentence custody in setting a commencement date, the Court of Criminal Appeal may simply adjust the start date rather than vary the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61O
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 30B, 53A

Cases:
- Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
- Culbert v R [2021] NSWCCA 38
- Da Silva v R [2024] NSWCCA 216
- Dent v R [2025] NSWCCA 43
- DL v The Queen (2018) 265 CLR 215
- Fuller v R [2024] NSWCCA 106
- HT v R (2019) 269 CLR 403
- Lehn v R (2016) 93 NSWLR 205
- Muggleton v R (2015) 250 A Crim R 180
- Pantorno v R (1989) 166 CLR 466
- R v Packer [2023] NSWCCA 87
- Stokes v R (2008) 185 A Crim R 74
- Weir v R [2011] NSWCCA 123