R v Simon BRANDT [2022] NSWDC 469

District Court New South Wales

Medium Neutral Citation: R v Simon BRANDT [2022] NSWDC 469 Hearing dates: 22 March 2022 Date of orders: 20 May 2022 Decision date: 20 May 2022 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Sentence imposed of two years and two months imprisonment, consisting of a non-parole period of 14 months and a balance of term of 12 months. Catchwords: CRIME – Sexual offences – Sexual assault - Consent Legislation Cited: S 61I Crimes Act 1900 (NSW) Cases Cited: Bussey v R [2020] NSWCCA 280 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Category: Sentence Parties: Director of Public Prosecutions (Crown)

Australian Criminal Law Group (Offender) File Number(s): 2019/00344328 Publication restriction: Statutory non-publication order re identity of complainant

Judgment

Introduction 1. The offender, Simon Brandt, stood trial before me and a jury at Newcastle between 23 January and 2 February this year on an indictment containing a single count that, on 1 January 2019 at Belmont, he had sexual intercourse with JF without her consent, knowing that she had not consented to the sexual intercourse. On 2 February the jury returned a verdict of guilty. The offence is an offence under s 61I of the Crimes Act 1900 and carries a maximum penalty of 14 years' imprisonment and there is a standard non‑parole period of seven years' imprisonment.

The facts 1. These are sentence proceedings after trial and I am required to find the facts, consistent with the jury's verdict. To the extent that a finding of fact is made adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt. I find the following facts for the purposes of sentencing, consistent with the jury's verdict, which is an indication the jury found the victim to be an honest and reliable witness, having clearly rejected the offender's evidence that when the complainant said stop during their sexual encounter, he desisted in any sexual activity with her. 2. The victim, JF, in the latter half of 2018 was a sole parent residing with her two young children in Warners Bay and was 31 years of age. The offender and the victim commenced communicating online through a Facebook group. As at October 2018, the offender was aged 39 years of age, resided in Victoria, but travelled to see his two young sons in the Lake Macquarie area every month. Prior to meeting in person, the offender and the victim communicated regularly over Facebook Messenger. A number of their online exchanges were of an explicit sexual nature, some in which digital penetration of the victim's anus and vagina were referred to. 3. Through the Facebook group I referred to earlier, the victim received an invitation to a camping trip at Nine Mile Beach to celebrate New Year's Eve, and the victim extended that invitation to the offender. On 30 December 2018, other members of the Facebook group, which included Luke Parkinson, Tracey Nolan-Petigree and Sylvia Kuijpers, who were friends of the victim, were at the site. The following day was New Year's Eve. At 4.30pm on New Year's Eve, Ms Kuijpers collected the offender and his two children from an entrance point to the beach, his car having become bogged, and drove them to the campsite. The offender set up his tent next to the victim's tent. Prior to that day the offender and the victim had not met in person and had only communicated with online messages. 4. From approximately 5pm to midnight, the victim consumed approximately four large bottles of cider, two mixed vodka and lemonades and half a glass of champagne. The offender consumed about three Lemon Ruskis, seven mid‑strength beers and a glass of champagne. The evidence does not support a finding the victim or the offender were significantly affected by alcohol that night. The offender's children went to bed around 10pm, after which time the victim and the offender spent more time together. The victim was in the communal area getting a drink when the offender came up behind her and said words to the effect of, "I'm going to fuck you in the arse later." The victim replied, "No, you're not." At about 10.30, the victim and the offender kissed and the victim and the offender danced. 5. At approximately 1.30am on 1 January 2019, the offender and the victim proceeded to the victim's tent. The victim and offender commenced penile/vaginal intercourse in the missionary position. The offender withdrew his penis, shuffled down the mattress and kneeled between the victim's legs, stimulating the outside of her vagina. The offender fully inserted one finger inside the victim's anus. The victim said, "Stop, no, I don't want you to do that," physically pushing his hand away. That act of digital/anal penetration was not relied upon for the count on the indictment, but the evidence was relied upon by the Crown at trial as evidence of the victim having expressly said to the offender that she did not consent to him digitally penetrating her anus from that point. 6. The offender then leaned his body onto the victim's right leg, pinning it over the side. He fully inserted two fingers into her anus. The victim told him to stop, that it hurt, while she tried to push him off her. He told her to calm down. The victim managed to free her right leg and kicked him in the chest down the tent, causing him to remove his two fingers from her anus. It is the insertion of the offender's two fingers into the victim's anus which is the act of intercourse that constitutes the offence. The offender knew the victim was not consenting to the sexual intercourse. I note the Crown did not go to the jury on recklessness in terms of the element of knowledge and only went to the jury on actual knowledge of lack of consent. 7. The offender started touching her vagina again. The victim pushed his hand away. The offender said angrily, "That's right, it's all about you," to which she responded, "Well, when you hurt me and you're not listening to me then, no, I don't want to." The victim was shocked and scared the offender would continue touching her. She got dressed and she said she needed to go to the toilet. The offender suggested she go outside the tent. He pulled her in for a kiss and she complied in order to placate him. The offender asked the victim to "give him a kiss", indicating to his penis. She replied, "No, how would you like it if I shoved something up your arse?" He said, "For fuck sake, we're not going to talk about this." He let her arm go and she exited the tent. 8. The victim, having left the tent, first complained to Ms Kuijpers. She knocked on her car window, entered and disclosed the offending and was distressed when she did so. Shortly thereafter she disclosed the offending to Ms Debbie Hansen via a Facebook Messenger call. Later that morning she told Mr Parkinson when he approached her. The victim was upset and crying when she made her various complaints that morning. Later that morning, the offender approached the victim and said to her, "Wait, can we talk? I thought we were having fun last night." The victim responded, "Yes, we were until I told you no. I asked you to stop and you didn't." 9. The offender also asked the victim if they could "just forget it ever happened" and the victim responded, "There's no way I'll ever be able to forget what you did to me, how you made me feel." Shortly after that, the offender asked, "Would it be better if we left the campsite?" She said, "Yes, it would." At about 12.30pm police called the victim to speak with her, having been contacted by Mr Parkinson. The victim detailed the offending. On 4 January 2019 the victim made a statement to police and returned several days later to complete it. 10. Police attempted to retrieve the Facebook messages between the victim and offender by way of a Facebook preservation order. They were ultimately unable to obtain them, but the messages were introduced into the trial by the counsel for the offender. On 16 August 2019, the offender was contacted in relation to the allegation by the police. On 1 November 2019, he was effectively charged by way of a future court attendance notice. 11. There was a moving victim impact statement before me, which was bravely read by the victim, indicating the adverse impact the offence has had on her over a significant period. The Crown did not submit that there were any aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 here.