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. Objective seriousness 1. Turning then to my assessment of the objective seriousness of this offence; there is no general hierarchy of seriousness in relation to acts of sexual intercourse without consent. Generally speaking, digital penetration of the anus is less serious than penile penetration. Here, two fingers were inserted into the victim's anus forcefully after the victim had expressly told the offender she did into want him to digitally penetrate her. The offender used the weight of his body and force to pin the victim's leg in order to achieve penetration. Clearly, the victim was shocked and distressed by what occurred and there was an element of violation in the conduct that constitutes the offence. 2. The offender, as reflected in the jury's verdict, given how the Crown case was put to the jury, committed that offence with actual knowledge that the victim was not consenting to that intercourse. This was not a case of recklessness as to lack of consent. Here, prior to going into the tent, the victim had expressly indicated she was not interested in anal intercourse. She again made it expressly clear after the first digital penetration of her anus that she did not consent to that occurring. The offence does appear to be of relatively short duration but this seems to be because the victim, in effect, fought the offender off. 3. In these circumstances, the fact that the offence appears to have been of relatively short duration does not significantly reduce its objective seriousness, in my opinion. I note that in Bussey v R [2020] NSWCCA 280 Harrison J, with whom the other members of the Court agreed, has said in relation to this category of offence, "violation and defilement of the victim are quintessential aspects of the offence", irrespective of whether the offender and the victim have been in a prior relationship. I note that here, while there had been a so-called online relationship, the victim and the offender had not met prior to the day of the offence. 4. A written submission was made on behalf of the offender that "The motivation for the offending was to sexually pleasure the victim as opposed to being only for the offender's own sexual gratification." There is, in my opinion, no basis for that submission. It completely ignores the fact that the victim had expressly told the offender she was not interested in anal intercourse before they went to the tent and not to digitally penetrate her anus, he having already done so, and he went ahead and did it again with two fingers. 5. I assess the objective seriousness of this offence as being below a notional midrange offence but above the bottom of the range of objective seriousness. The Offender's subjective case 1. Turning then to the offender's subjective case, he is currently 42 years of age and was 39 as at the date of the offence. He has little by way of a criminal history. In this State he was dealt with in 2004 by way of a non‑conviction bond for a low range drink driving offence. He has a number of convictions in Western Australia for traffic offences that post-date that matter but none of them are for serious traffic offences. I do not consider that his criminal record disentitles him to leniency in this sentence. 2. He raised his good character during the trial and there are testimonials before me and two other character witnesses gave evidence. I find that he is a person of general good character and that also is a factor supporting leniency in the sentence. 3. In terms of the material before me, I have before me a psychiatric report of Dr Stephen Allnutt dated 4 May 2022, a psychological report of Eirini Lammi dated 18 March 2022, a sentencing assessment report conducted by Community Corrections on 18 May this year. I also have had regard to the character references of Arani Duggan and Sarah Di Judisobis and Joy Brandt, and a letter dated today's date from the offender was also put before me. 4. The offender's current partner gave evidence before me as to the offender's conduct towards her and their relationship and his relationship with his children and the fact that he maintains his innocence. Ms Duffy, who gave character evidence at the trial, gave evidence on sentence, in particular as to the offender's relationship with his son, Lachlan, who has autism. I accept both witnesses' evidence, there essentially being no challenge to it. The offender did not give evidence on sentence. 5. Turning then to the offender's family background, the offender was born in Melbourne. At 18 months old he was adopted after being in foster care. He reported to the psychiatrist, Dr Allnutt, that he had never seen his biological parents. He grew up with his adoptive family and described the environment to Dr Allnutt as good and supportive. The family situation altered somewhat when his adoptive father died when the offender was 17 years of age. Despite a generally positive home environment, the offender described feeling "odd", which he reported to the psychiatrist as leading to questions about his identity. The offender's adoptive mother had several miscarriages and had told him she did not really want to have children, but the offender said he had always felt loved by his adoptive parents. He was not exposed to domestic violence, sexual abuse or physical abuse. 6. I note much of the information given by the offender to Dr Allnutt was verified in a call to his mother, whose comments were essentially consistent. 7. The offender was in a committed relationship with a de facto partner between 2006 and 2010. He is a father to two children aged 14 and 12, although, as I understand it, they do not live with him. His eldest son requires a high level of support due to a neurodevelopmental disorder, autism spectrum disorder, and the offender provides respite support when he takes the children on outings. The reports before me suggest that the offender sees his children on a weekly basis; however, his current partner suggested he sees Lachlan on a fortnightly basis. I have noted the offender is currently now in another relationship. 8. The offender's mother is now 80 years of age and has a number of medical issues. As I understand it, the offender provides support to his mother in relation to those issues when he can, although I note he now resides a considerable distance from her. He retains the support of his mother and family. 9. In terms of his education and employment history, he completed Year 12 and reported to Dr Allnutt that he did not suffer from any learning problems. He reported some social difficulties at school and that he did not make friends easily. His behaviour at school was relatively unproblematic and he reported having no significant difficulties with teachers, though he was suspended on one occasion. 10. There was no evidence presented to Dr Allnutt that the offender suffered from a conduct disorder or juvenile delinquency in childhood. He entered university but did not complete it. According to what is contained in Dr Allnutt's report, the offender initially was employed in a landscaping supply business and in retail and telemarketing. Currently he is working as a concreter and form worker and has worked in that industry for some time. 11. The offender reported a limited involvement with alcohol and substance misuse. He first drank alcohol at age 14 and used cannabis heavily between 15 and 19 years of age. He discontinued cannabis use after 19 years of age. He appears to have had no problem with alcohol or cannabis since then. 12. Turning then to his psychiatric history, the offender reported to the psychiatrist that there was a family history of mental illness. He described intermittent depression throughout his adult life, dating back to when he was 18. At the time he presented to the psychiatrist, he was experiencing "several depressive symptoms" as well as "significant stress, anxiety and depression related to delays in the court proceedings." Dr Allnutt concluded in his diagnosis that the offender suffers from a "recurrent depressive disorder" with his current episode "secondary to the conviction and the charges(sic)." To the extent his current symptoms are related to these proceedings, that is a circumstance that is not unusual for individuals facing serious criminal allegations. 13. It does appear on the evidence that he has suffered from depression and anxiety in the past. The psychiatrist also found the offender "presented as an anxious person, manifesting a mild tremor during the interview." The psychiatrist was satisfied the offender had an "underlying propensity to anxiety, consistent with a probably generalised anxiety disorder." The psychiatrist's report on the offender's mental state at the time of the offending concluded that there is no evidence of a diagnosable psychiatric condition as at the time of the offence. 14. The psychologist, Ms Lammi, conducted a personality assessment inventory to test for any recognised mental disorders. She concluded that the offender's symptoms were consistent with generalised anxiety disorder, moderate recurrent episode and a comorbid diagnosis of persistent depressive disorder. 15. It was not suggested in submissions that the well-known principles concerning the relevance of mental health to sentencing expressed in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 were engaged here. I have, however, considered in the general mix of factors to be considered when imposing sentence, the evidence concerning the mental health of the offender. 16. In terms of the offender's attitude to the offence, the psychiatrist reported that the offender "maintained his view that he did engage sexually with the victim in the manner described in the facts but continues to believe he discontinued when she did not consent." The psychiatrist was of the view, however, that the offender "was nonetheless remorseful for having caused the victim distress." The sentencing assessment report records that the offender "takes responsibility for his actions." That comment must be seen in the context of the offender continuing to protest his innocence. His current partner gave evidence that the offender, while maintaining his innocence, in effect, apologises for how he spoke to the victim during the incident. 17. The clinical assessment of Dr Allnutt recorded the offender as having a "relatively low loading of risk factors", which led him to the conclusion of him "falling into a group of sexual offenders at low risk of future sexual recidivism." The Static-99R instrument, designed for the estimation of risk of sexual recidivism in sex offenders, placed the offender in the below average category as compared to the average sex offender. 18. In terms of remorse, the offender presents a somewhat difficult picture in assessing his remorse and insight into the offending. He maintains his innocence, which is his right, but appears to show some remorse for the fact that he caused the victim distress and for what he said to her. This is not remorse in the sense of the mitigating factor in s 21A of the Crimes (Sentencing Procedure) Act. Clearly, the offender has no insight into the serious nature of his conduct, but seems to be sorry for the distress he caused the victim. That cannot, to any significant degree, mitigate the sentence. 19. He has no substantial criminal record and he has support in the community and a history of employment. He was assessed by Dr Allnutt as having a low risk of re-offending and there is a similar assessment in the sentencing assessment report. He has reasonable to good prospects of rehabilitation. I consider he is unlikely to reoffend. 20. In arriving at the sentence to be imposed, I have had regard to the likely impact on the offender's son, Lachlan, if the offender is incarcerated, along with the impact on his ageing mother as general factors to weigh up in determining the appropriate sentence. 21. There has been some delay in the proceedings coming to trial due to the police's failure to promptly speak to the offender after the allegation and the impact of the COVID-19 pandemic. I have had some regard to that delay, although it cannot be said to have been overly significant. In coming to my conclusion about the appropriate sentence to impose, I have had regard to the fact that it is well known that inmates in custody spend more time in their cells, still have no in-person visits, and the number of rehabilitation programs that are available is limited due to the impact of the pandemic. 22. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Offences of sexual intercourse without consent are always serious offences. That is because of the very nature of the offence. They involve the sexual violation of a person, knowing that that person has not consented to the sexual act. Men must understand that when a woman clearly says, "No, stop," they must stop. General deterrence, that is, the need to send the message to the community that such offences will receive significant sentences from the courts is paramount when sentencing for such offending. I accept that specific deterrence has little role to play here, given my findings that the offender has reasonable to good prospects of rehabilitation and is unlikely to reoffend. 23. The maximum penalty and the standard non-parole period have been taken into account as legislative guideposts. Submissions were advanced on the offender's behalf that an appropriate sentence was one of a community correction order. Reference was made to a number of cases and to the statistics kept by the Judicial Commission, and I have considered all the cases and the statistics referred to both by Mr Correy and Madam Crown. While it might not be correct to say that a case needs to be unusual or exceptional before a noncustodial sentence can be imposed, what is clear, in my opinion, from the material that has been placed before me, is that it is very rare for an offender convicted after trial for such an offence to receive a noncustodial penalty. 24. Those few cases where such a penalty has been imposed were cases, in the main, where the offender was a young adult offender when normally greater emphasis is placed on rehabilitation or the offender was a person with significant mental health issues. This is not such a case. 25. Sentencing remains a process of instinctive synthesis of a number of often competing factors. In my opinion, when I have regard to the serious nature of the offence and having proper regard to the somewhat strong subjective case, the only appropriate sentence is one of imprisonment. 26. I am satisfied on the evidence, as I say, the offender has reasonable to good prospects of rehabilitation. His prospects of rehabilitation will be assisted if he has a longer period on parole. This will be his first time in custody. I am also sentencing him during the pandemic when, as I say, conditions in custody are more onerous. For all of those reasons, in combination, I make a finding of special circumstances when fixing the non-parole period. Imposition of sentence 1. The offender is convicted of the offence of sexual intercourse without consent. On that offence I impose a sentence consisting of a non-parole period of 14 months and a balance of terms of 12 months. That is a total sentence of two years and two months. It commences today, 20 May 2022, and expires on 19 July 2024. The non-parole period expires on 19 July 2023, which is the date that you can currently expect to be released to parole. Orders 1. Impose a sentence of imprisonment of two years and two months. Consisting of a non-parole period of 14 months and a balance of term of 12 months. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2022