R v Brannen [2023] NSWDC 356

District Court New South Wales

Medium Neutral Citation: R v Brannen [2023] NSWDC 356 Hearing dates: 29 March, 31 August 2023 Decision date: 04 September 2023 Jurisdiction: Criminal Before: Tupman DCJ Decision: (1) The offender is convicted. (2) The offender is sentenced to a Community Corrections Order for a period of 2 years commencing 4 September 2023. (3) The standard conditions of the order apply. (4) The offender is to accept supervision from Community Corrections for as long as deemed necessary by them. (5) The offender is to report to Cooma Community Corrections no later than 5:00pm on 8 September 2023. Catchwords: CRIME – sentence – one offence – sexual intercourse without consent – s61I Crimes Act 1900 – maximum penalty 14 years imprisonment – standard non-parole period 7 years – EAGP scheme – 25% discount on sentence – offender aged 20 and victim aged 16 – met through mutual friend – offender asked victim to be his girlfriend over FaceTime and they moved in together – engaged in consensual sexual intercourse on several occasions throughout course of relationship OFFENCE – continuation of penile/vaginal intercourse for about 1-2 minutes after initial consensual penile/vaginal intercourse – no force – offender wearing condom and ejaculated – victim said stop – admitted by offender in agreed facts that victim was not consenting and offender knew that she was not consenting – agreed fact that victim was not sure offender had heard her when she said stop – snapchat exchange day following offence indicated offender initially misunderstood reason for victim saying stop but then admitted fault and said that he had accidentally been caught up in the moment OBJECTIVE SERIOUSNESS – low – increased slightly by admission of actual knowledge – plea of guilty of high utilitarian value in addition to EAGP discount – victim spared cross examination and conviction ensured – reference to Court's experience that similar trials often lead to acquittals – age difference found not significant and Crown submission that it increased objective seriousness rejected – offender and victim were equals – no evidence of vulnerability or naivety of the victim but offender somewhat naïve and unsophisticated FACTORS – no aggravating factors – several mitigating factors – no prior criminal convictions – early plea – not planned – genuine remorse – demonstrated prospects of rehabilitation – on bail 15 months without breach – any gaol term would be onerous because of family law enforcement connection SENTENCE – s3A purposes of sentencing addressed – s5 threshold not crossed – falls into category of rare case for S61I offence Legislation Cited: Crimes Act 1900 (NSW): s 61I Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A Cases Cited: 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 Category: Sentence Parties: Rex (Crown) Christian Memphis Brannen (Offender) Representation: Counsel: J Moffett (Offender)