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Court of Criminal Appeal 7 March 2025

Brown v R

[2025] NSWCCA 30

Sexual offences

Citation: Brown v R [2025] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 7 March 2025
Judges: Bell CJ; Stern JA; Yehia J

Background

A jury unanimously convicted the applicant on two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from a single incident in Jindabyne in the early hours of 20 July 2017. Count 2 involved penile vaginal intercourse; Count 3 involved the complainant performing oral sex on the applicant. Both counts concerned the same complainant.

On 16 June 2023, the sentencing judge imposed two wholly concurrent terms of six years' imprisonment with a non-parole period of four years. When sentencing, the judge relied substantially on an annexure to the Crown's written submissions on sentence (Annexure A), which had been described as reflecting the Crown case as put in opening. However, Annexure A contained facts that in some respects diverged from the evidence the complainant actually gave at trial.

The applicant sought leave to appeal both conviction and sentence. Leave to appeal out of time was not opposed and was granted.

  • Whether the guilty verdicts on either or both counts were unreasonable, or could not be supported, having regard to the evidence (ground 1)
  • Whether the sentencing judge made findings of fact for which there was no evidence, and whether those errors constituted a miscarriage of justice requiring a lesser sentence (ground 2)

Decision

Ground 1: Unreasonable verdict

The Court of Criminal Appeal unanimously rejected the conviction appeal. Each member of the Court conducted an independent assessment of the trial evidence and concluded that verdicts of guilty on both counts were clearly open to the jury. The Court emphasised that the sequence of events mattered: there were clear protestations by the complainant to the penile vaginal intercourse, which was also accompanied by some force. The oral sex that followed had to be understood in that context, and the jury was entitled to find that count 3 also occurred without consent. Yehia J noted that the jury had observed the complainant give evidence and gave careful consideration to questions of her credibility and reliability.

Ground 2: Sentencing error

The Court accepted that error was established. When the matter came on for sentencing some months after the trial, the Crown presented Annexure A as though its contents were drawn from the trial transcript. The sentencing judge, relying on that annexure, made findings that in some respects did not reflect the complainant's actual evidence. Those errors were matters capable of influencing the sentencing discretion, and no objection was taken at the time by either party.

Stern JA (with Bell CJ and Yehia J agreeing) exercised the sentencing discretion afresh, as required by Kentwell v The Queen (2014) 252 CLR 601. After considering all material before the original sentencing judge, together with a further affidavit filed by the applicant in January 2025, the Court concluded that no lesser sentence was warranted. The sentence appeal was accordingly dismissed.

Stern JA added a note of caution about the preparation of sentencing submissions. Her Honour observed that the appeal illustrated the importance of care being taken when presenting sentencing courts with factual summaries or aide-mémoires, and the real risk of inadvertently misleading a court where those documents are not carefully sourced against the evidence actually adduced at trial.

Orders Made

  • Leave granted to extend time to file the notice of appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the sequence of events across multiple counts is a material consideration when assessing whether a verdict is unreasonable: the context established by an earlier act can bear directly on the question of consent in a later act.
  • Where a sentencing judge relies on a Crown factual summary that diverges from the evidence actually given at trial, that reliance can constitute error even where neither party objected at the hearing.
  • Establishing a factual error in the sentencing process does not automatically produce a different outcome: where the Court of Criminal Appeal exercises the sentencing discretion afresh under Kentwell, it will dismiss the sentence appeal if no lesser sentence is warranted on the correct facts.
  • No error was attributed to the Crown advocate's intentions; the Court accepted there was no deliberate attempt to mislead, but that did not prevent the error from constituting a miscarriage of the sentencing discretion.
  • Stern JA's remarks signal that courts regard factual annexures or summaries presented at sentencing as a genuine risk point when they are compiled from opening addresses rather than verified against transcript evidence, particularly where sentencing occurs some time after trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61I, 61L
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c)

Cases
- M v The Queen (1994) 181 CLR 487
- SKA v R (2011) 243 CLR 400
- Pell v The Queen (2020) 268 CLR 123
- Kentwell v The Queen (2014) 252 CLR 601
- Banditt v The Queen (2005) 224 CLR 262
- Sabapathy v R [2008] NSWCCA 82 (distinguished)
- Slater v R [2024] NSWCCA 210
- AS v R [2022] NSWCCA 291
- Bolton v R [2023] NSWCCA 211
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Newman (a pseudonym) v R [2019] NSWCCA 157
- R v Aiken (2005) 63 NSWLR 719
- R v XHR [2012] NSWCCA 247
- Reed v R [2006] NSWCCA 314
- Shortland v R [2024] NSWCCA 174