Brown v The King

[2025] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Brown v R [2025] NSWCCA 30

Hearing dates:

10 February 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Before:

Bell CJ at [1];
Stern JA at [4];
Yehia J at [54]

Decision:

(1)   Grant leave to extend time to file the notice of appeal.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether each or either verdict of guilty in relation to two counts of sexual intercourse without consent cannot be supported having regard to evidence

CRIME — appeals — appeal against sentence — application for leave to appeal out of time — application not opposed

CRIME — appeals — appeal against sentence —miscarriage of justice — whether discrepancies between the sentencing judge’s findings and evidence — where no objection taken at trial — whether errors of fact capable of influencing sentencing discretion — whether lesser sentence warranted in law

Legislation Cited:

Crimes Act 1900 (NSW) ss 61HA, 61I, 61L

Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 5(1)(c)

Cases Cited:

AS v R [2022] NSWCCA 291

Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80

Bolton v R [2023] NSWCCA 211

Cabot (a pseudonym) v R [2018] NSWCCA 265

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

M v The Queen (1994) 181 CLR 487

Newman (a pseudonym) v R [2019] NSWCCA 157

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Aiken (2005) 63 NSWLR 719; [2005] NSWCCA 328

R v XHR [2012] NSWCCA 247

Reed v R [2006] NSWCCA 314

Sabapathy v R [2008] NSWCCA 82

Shortland v R [2024] NSWCCA 174

SKA v R (2011) 243 CLR 400; [2011] HCA 13

Slater v R [2024] NSWCCA 210

Texts Cited:

E McDonald and others, Rape Myths as Barriers to Fair Trial Process: Comparing Adult Rape Trials with those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, 2020)

New South Wales Law Reform Commission, Consent in Relation to Sexual Offences Report (Report 148, September 2020)

Category:

Principal judgment

Parties:

Brown (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
K Jeffreys (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Officer of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/00383847

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) there is to be no publication of any matter which is likely to lead to the identification of the complainant.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 June 2023

Before:

Pickering DCJ

File Number(s):

2018/00383847

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 February 2023 a jury unanimously found the applicant guilty on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Both counts involved the same complainant and occurred during what was essentially one incident in the early hours of 20 July 2017. Count 2 (using the numbering on the indictment) involved penile vaginal intercourse. Count 3 involved the complainant performing oral sex on the applicant.

On 16 June 2023 the applicant was sentenced to two wholly concurrent terms of imprisonment of six years with a non-parole period of four years. In the remarks on sentence, the sentencing judge relied upon an annexure to the Crown’s submissions on sentence (Annexure A), which reflected the Crown case as put in opening but contained facts which in some respects differed from the evidence given by the complainant at trial.

The applicant relied on two grounds of appeal (leave was not opposed):

(1) The verdict of the jury in relation to each (or either) count was unreasonable, or could not be supported, having regard to the evidence (ground 1); and

(2) The sentencing judge made findings of fact for which there was no evidence, leading to a miscarriage of justice (ground 2).

Held, granting leave to appeal but dismissing the appeal:

As to ground 1:

(1) The verdict of guilty on both counts was well open to the jury. The actual sequence of events was important. There were clear protestations to the penile vaginal intercourse, and the oral sex which followed had to be understood in this context: Bell CJ at [1]; Stern JA at [26]-[30]; Yehia J at [54].

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v R (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited.

As to ground 2:

Per Stern JA (Bell CJ agreeing at [2] and Yehia J agreeing at [55])

(2) In adopting Annexure A the sentencing judge made findings which constituted errors of fact. These were matters that were capable of influencing the sentencing decision: [7]-[9], [37]-[38].

(3) Exercising the sentencing decision afresh, taking into account all of the material before the sentencing judge and the affidavit of the applicant affirmed on 23 January 2025, no lesser sentence was warranted: [10], [52].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Slater v R [2024] NSWCCA 210; Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, cited; Sabapathy v R [2008] NSWCCA 82, distinguished.

Per Stern JA

(4) This appeal illustrates the very real importance of great care being taken when presenting a sentencing court with submissions, summaries, or aide-mémoires identifying the facts upon which an offender should be sentenced without carefully sourcing those ‘facts’ in the evidence actually adduced at trial. Unless such a process is undertaken, there is a real risk that courts, who are entitled to, and do, rely upon such accounts (particularly where, as here, the sentencing hearing is some months after the trial), will inadvertently be misled: [11].

JUDGMENT

1. BELL CJ: Based upon my own review of the record of the trial, I would reject the appeal against conviction.  Mr Ramrakha, who appeared for the applicant, structured his submissions by focussing first on count 3, which involved the complainant performing oral sex on the applicant, before turning to count 2 which involved penile vaginal intercourse.  While the reason for so structuring his submissions was forensically understandable, the actual sequence in which the physical events comprising the two counts occurred was important, as Stern JA has carefully explained.  There were clear protestations to the penile vaginal intercourse which was also accompanied by some force, with the complainant being held down by her wrists.  The oral sex which followed had to be understood in this context, and the verdict of guilty on both counts was well open to the jury.

2. In relation to the sentence appeal, I agree with Stern JA that, while error has been established insofar as, when the matter came on for sentencing some time after the trial, the judge was presented with an inaccurate statement of facts based upon the Crown’s opening rather than the evidence in fact given during the trial, on a Kentwell resentencing, no lesser sentence than that imposed by the sentencing judge is warranted.

3. For these reasons, I agree with the orders proposed by Stern JA.

4. STERN JA: On 10 February 2023 a jury unanimously found the applicant guilty on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Both counts involved the same complainant and occurred during what was essentially one incident in the early hours of 20 July 2017 in Jindabyne, New South Wales. Count 2 (using the numbering on the indictment) involved penile vaginal intercourse. Count 3 involved the complainant performing oral sex on the applicant. The jury was unable to reach a verdict as to two further charges against the applicant under s 61I and one charge of indecent assault contrary to s 61L of the Crimes Act, involving separate incidents and two different complainants (a further trial of those counts later in 2023 also resulted in a hung jury). On 16 June 2023 the applicant was sentenced to two wholly concurrent terms of imprisonment of six years, to date from 6 September 2021, expiring on 5 September 2027, with a non-parole period of four years expiring on 5 September 2025.

5. The applicant also requires leave to appeal out of time. That leave is not opposed and should be granted. In the circumstances set out below, leave to appeal against conviction and sentence, as required under ss 5(1)(b) and (c) of the Criminal Appeal Act 1912 (NSW), should also be granted.

6. The applicant contends that the verdict of the jury in relation to each (or either) count is unreasonable, or cannot be supported, having regard to the evidence (ground 1). For the reasons set out below, that contention must be rejected. The jury’s verdicts were clearly open on the evidence adduced at trial.

7. As regards sentence, the applicant contends that the sentencing judge made findings of fact for which there was no evidence and that this led to a miscarriage of justice (ground 2). The genesis of this ground is the Crown’s reliance, for the purpose of sentencing, upon an annexure to its written submissions on sentence (Annexure A). Annexure A was described by the Crown as being “consistent with the Crown case put to the jury in the trial” and was said to detail facts upon which the Crown contended the Court “would sentence the [applicant].” Whilst the applicant’s written submissions on sentence sought to clarify those facts “in relation to the [applicant]’s knowledge”, submitting that he should not be sentenced on the basis that he had actual knowledge of a lack of consent, those written submissions did not otherwise dispute that the Court could rely upon the facts in Annexure A on sentence. In oral submissions on sentence, the solicitor advocate for the Crown agreed with the sentencing judge’s observation that the “submissions, from annexure A, paragraph 4 through to 16” were based on the transcript, and counsel for the applicant did not in any way correct or qualify this submission.

8. Whilst Annexure A did reflect the Crown case as put in opening, in some respects the facts as set out in Annexure A differed from the evidence given by the complainant at trial. Notwithstanding this, in his remarks on sentence, the sentencing judge, who had earlier directed himself that “the facts should be found consistent with the evidence [the complainant] gave in court”, said:

“… dealing with the facts I find they are very consistent with the Crown’s written submissions in annexure A from 1 through to 16. The Crown’s submissions reflect evidence called in the trial and I accept it really without reservation.”

9. In his remarks on sentence, the sentencing judge then went on to recount what Annexure A “showed”. In doing so, the sentencing judge made findings which, in some respects, did not reflect the complainant’s evidence at trial. These errors of fact were matters which were capable of influencing the sentencing discretion.

10. Notwithstanding this somewhat unfortunate background, the appeal against sentence should also be dismissed. Having exercised the sentencing discretion afresh as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ), I would conclude that no lesser sentence is warranted.

11. There is no suggestion here that the solicitor advocate for the Crown in any way intended that the Court would not be accurately informed as to the evidence given by the complainant at trial. Indeed, at the sentencing hearing, he offered to take the sentencing judge “to the transcript references as to the victim’s evidence”. However, this appeal illustrates the very real importance of great care being taken when presenting a sentencing court with submissions, summaries, or aide-mémoires identifying the facts upon which an offender should be sentenced without carefully sourcing those ‘facts’ in the evidence actually adduced at trial. Unless such a process is undertaken, there is a real risk that courts, who are entitled to, and do, rely upon such accounts (particularly where, as here, the sentencing hearing is some months after the trial), will inadvertently be misled.

Ground 1 – the appeal against the convictions

12. As the applicant’s counsel submitted, the primary focus of ground 1 is the applicant’s contention that the verdicts of guilty on both counts were unreasonable in light of the evidence which the complainant gave at trial. More particularly, the applicant contends that the evidence of the complainant left open the possibility that the complainant consented to both the penile vaginal intercourse and to performing oral sex on the applicant, that such consent had been “obtained by persuasion”, and that there were reasonable grounds for the applicant to believe that the complainant consented to both acts.

13. The applicant does not contend that the complainant’s evidence was not credible. Rather, his contention is that her evidence was insufficient to prove these key elements of the offences. In support of this contention, the applicant places considerable weight on discrepancies between the Crown’s opening statement and the evidence given by the complainant at trial. When considering this contention, however, it is necessary to bear in mind that the jury clearly accepted the key thrust of the complainant’s evidence. Their verdict is only explicable on that basis. It must also be borne in mind that the complainant was giving evidence in February 2023 about an event that occurred in July 2017, some five and a half years earlier. Moreover, that event (if it occurred as described) was manifestly traumatic to the complainant, which itself might be expected to impact upon her recollection of tangential details: Reed v R [2006] NSWCCA 314 at [64] (Spigelman CJ, McClellan CJ at CL agreeing and Sully J agreeing in general but with further observations), as set out below at [14]; AS v R [2022] NSWCCA 291 at [108], [137] (Adamson J).

14. The applicant also submits that the complainant’s evidence was inconsistent with that of her friend, whom I will refer to as MB, as regards details such as why it was that the complainant went to sleep in the applicant’s room rather than elsewhere, whether MB woke the complainant on the morning of 20 July 2017, and why the complainant stayed overnight at the applicant’s house on the evening of 19-20 July 2017. However, resolution of these matters was, as the applicant accepts, a matter for the jury: Cabot (a pseudonym) v R [2018] NSWCCA 265 at [59]-[64] (Leeming JA, McCallum and Bellew JJ agreeing); Bolton v R [2023] NSWCCA 211 at [46] (Harrison J, as his Honour then was, Wilson and N Adams JJ agreeing). None of the matters raised by the applicant as “inconsistencies” necessarily casts any doubt upon the material parts of the complainant’s evidence or provides any support for the contention that the verdicts were unreasonable. As was recognised by Spigelman CJ in Reed v R at [64]:

“Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See e.g. Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp. at pp48–62.)”

Count 2 – penile vaginal intercourse

15. The complainant’s evidence was that she went to the applicant’s house in Jindabyne (where MB was living) after she finished work on 19 July 2017 as she was planning on driving with MB to the Central Coast the following day. The complainant was the designated driver for the night and drove MB and two of her housemates (but not the applicant) to a bar then came back with them to the applicant’s house after midnight. About an hour after the group returned the applicant came home. The complainant had consumed only one or two drinks that night. She wanted to go to bed and was not sure where she was to sleep, thinking she would be “crashing on the lounger”. She asked, “[w]here can I sleep?”, which was “more directed at [MB]”, at which point the applicant offered her his bed upstairs and gave her directions to get to the room. She went up to the room on her own, got into bed fully clothed and tried to go to sleep.

16. The applicant then entered the room, which was dark, but had the door open. The complainant asked what he was doing, and he said he was looking for a lighter. He sat down on the bed, then collapsed back onto it, next to her and then was “just trying to get on – onto me.” As set out in more detail below, after this the applicant first had penile vaginal intercourse with the complainant, followed by the complainant performing oral sex on the applicant.

17. The complainant’s clear evidence in response to questions put to her in cross-examination was that both acts were performed without her consent. The significance of that evidence should not be downplayed. There is clear authority that evidence from a complainant that she did not consent to sexual intercourse can sustain a verdict of guilty even in circumstances (unlike the present case) where the complainant did not communicate that lack of consent provided that an inference as to the offender’s knowledge is available: R v XHR [2012] NSWCCA 247 at [46]-[47] (Beazley JA, Hall J, SG Campbell J agreeing). That must be all the more so where, as was the case here, the complainant did repeatedly communicate her lack of consent to the applicant.

18. As to this, the complainant’s evidence was that, after the applicant lay down on the bed, and having not spoken to her since falling back onto the bed:

“He [the applicant] was saying - well I was saying ‘no’, like, ‘Please don’t’, and he was like ‘come on, I know you want to’, and he was like, you know, trying to, like - I’m sorry, I can’t remember much of that part; I just remember the conversation. I’ll say, ‘No, I don’t want to’, he’s like ‘Come on, I know you do’, and I was like ‘no’, I said, ‘No’, I can’t even tell you how many times I said, ‘No’. And then I tried to make up excuses, like, I’m too drunk, and he said, ‘No, you haven’t been drinking’ …”

19. The complainant explained in her evidence that at the time she was thinking that if she “made an excuse up, like that I was drunk, that he would know that he was taking advantage of me, and he might stop. I thought that would help.” The applicant did not stop. The complainant then told the applicant that she was “on [her] period”. In response to this, the applicant said that he didn’t care.

20. As to what followed, the complainant’s evidence was that the applicant “basically forced me to take my tampon out”, and she “put it on the floor, next to the bed.” Whilst the complainant did not explain what the applicant did to force her to take the tampon out, this evidence was given without objection and no attempt was made by the applicant’s counsel at trial to cross-examine the complainant as to how the applicant “basically forced” her to take her tampon out. The complainant also explained during cross-examination (as to a point of inconsistency as between what the complainant had told the police and her evidence in chief) that the applicant “was going to [remove her tampon] and then I removed it myself”. This evidence does not suggest a voluntary decision to remove her tampon or that the removal of her tampon could reasonably be understood in the circumstances as a willing act to facilitate consensual sexual intercourse.

21. Further, to the extent that the applicant complains that this evidence was conclusory and suffered from a lack of substantiating detail, it was evidence that was not objected to by the applicant’s counsel at trial. Nor, as already noted, was the complainant cross-examined as to this. In the context of the evidence as a whole, the jury was entitled to accept the complainant’s evidence that she was “basically forced” to remove her tampon.

19. The complainant’s candid evidence was that she did not remember taking her pants off, but that they were off by this stage, while her other items of clothing were still on. She said that she could not remember if she took her pants off or if they were forced off. The applicant contended that this, together with the removal of the tampon:

“[L]eft open the possibility that, at the very least, the applicant thought that she was consenting, in what was a sort of fluid episode of her potentially saying ‘no’ and then being potentially convinced, at least in his mind, that she had consented, she had ultimately consented to the act.”

23. That submission should be rejected. In the context of the complainant’s evidence more broadly, no such possibility arises. Her evidence was that she repeatedly said “no” to the applicant’s advances. There was nothing “potential” about this. Nor was there anything that indicated that she was “potentially convinced” so as to make the sexual intercourse consensual. She clearly communicated her lack of consent. She then tried other tactics which were patently directed at stopping the applicant from having sex with her, then removed her tampon because he was going to do it himself and he “basically forced” her to do so. Neither the possibility that the complainant removed her own pants nor the act of the complainant removing her tampon in the circumstances set out above suggests a reasonable possibility that the complainant had changed her mind about having sexual intercourse with the applicant or that the applicant thought that she had done so. Contrary to the applicant’s contention, there is nothing in the matters recounted by the complainant in her evidence which could have been seen as an “invitation” to the applicant to have sexual intercourse with her.

24. This conclusion is reinforced by the complainant’s evidence that, after she removed her tampon, her wrists were pinned down by the applicant whilst she was on her back and the applicant was on top of her, adding that she could just remember “how tight his hands felt around my wrist”. Again, in context, the applicant’s actions as recounted by the complainant in her evidence leave no doubt that this was a non-consensual sexual encounter and that this was readily apparent to the applicant. Further, the jury might reasonably have inferred from this evidence that the complainant’s wrists were being pinned down by the applicant for a reason, most likely because the applicant perceived the complainant to be physically resisting sexual intercourse or that she was likely to do so if her wrists were not held down.

25. The complainant’s evidence was that the applicant stopped holding her wrists but that he was on top of her having sex and that she was “just looking at the wall the whole time” as she “just gave up”. Again, in circumstances where the applicant was “on top of” the complainant and had, moments before, been pinning her wrists down, the lack of ongoing violent struggle does not suggest the possibility that this was consensual sex or that it could reasonably have appeared so to the applicant. A lack of consent does not require violent resistance, nor is it necessary that initial verbal refusals of consent be repeated throughout the sexual encounter. There is a well-established distinction between consent and submission: R v Aiken (2005) 63 NSWLR 719; [2005] NSWCCA 328 at [12] (Studdert J, Kirby and Howie JJ agreeing), and a lack of resistance is a well-recognised physiological and psychological response to sexual offending: see eg E McDonald and others, Rape Myths as Barriers to Fair Trial Process: Comparing Adult Rape Trials with those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, 2020) at 283. Indeed, it has been noted that “many people who experience sexual assault do not physically or verbally resist” and “a common and recognised response to a traumatic situation, including sexual assault, is to ‘freeze’”: New South Wales Law Reform Commission, Consent in Relation to Sexual Offences Report (Report 148, September 2020) at [2.42] (references omitted).

26. In light of the matters set out above, and having assessed the evidence as a whole, it was open to the jury to be satisfied of the applicant’s guilt on Count 2 beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45]. The jury’s verdict on this count was not unreasonable. Irrespective of the fact that additional matters were relied upon by the Crown in its opening statement, the jury’s verdict was amply supported by the complainant’s evidence.

Count 3 – the complainant performing oral sex on the applicant

27. Turning to Count 3, the oral sex, the complainant’s evidence was that after the applicant had removed his penis from her vagina “[h]e asked [her] to give him oral [sex]” and she “did what he said”. She then gave the following evidence:

“Q. Why was it that you performed oral sex on him?

A. I just did what he said.

Q. Why was that?

A. Cause I was scared.”

28. Later in her evidence, the complainant answered “no” when asked whether she performed oral sex on the applicant voluntarily. She then explained that she did it “because I felt like I was made to”. Given that the applicant had used force to pin down her wrists and had persisted in penile vaginal intercourse that she had told him she did not want, there was plainly good reason for the complainant to feel fear and to consider that she had no real choice whether or not to do what the applicant asked. Contrary to the applicant’s submission, in these circumstances it was not necessary for the complainant to explain in her evidence why it was that she felt “scared” or felt that she was made to perform oral sex on the applicant. In any event, it was not put to her in cross-examination that she was not genuinely fearful or that there was no proper basis for her fear.

29. Whilst the complainant’s evidence was that the applicant “asked” her to perform oral sex, and she agreed in cross-examination that she was not “physically force[d]” to do so nor held down during that act, the jury was entitled to find that she felt compelled to do what the applicant asked, in the sense that she had no true choice. The complainant’s evidence, together with the context of the acts the subject of Count 2 which immediately preceded Count 3, provided a clear basis for the jury to find that this was a non-consensual act.

30. Nor, in my judgment, should the jury have entertained a reasonable doubt that the applicant either knew the complainant was not consenting, was reckless as to whether she consented, or that there were no reasonable grounds for the applicant to believe that she was consenting, to performing oral sex on him: s 61HA, Crimes Act (as that section provided at the relevant time). It is artificial to see Counts 2 and 3 as anything other than one continuing incident of sexual activity. The evidence considered in relation to Count 2 made it very clear that the complainant was not consenting to sexual activity. Nothing that occurred subsequently altered that.

Conclusion on Ground 1

31. The applicant’s contention that the evidence was insufficient to exclude the possibility that the complainant freely and voluntarily consented to the acts founding Counts 2 and 3, or that the applicant held an honest and reasonable belief that the complainant was consenting, should be rejected. It ignores the complainant’s clear evidence both as to the acts being non-consensual and as to the circumstances in which those acts occurred. The jury clearly accepted her evidence. They were entitled to do so, and, having done so, to convict the applicant.

32. The appeal against conviction should be dismissed.

Ground 2 – the appeal against sentence

33. As already noted, ground 2 derives from discrepancies between the sentencing judge’s findings, based as they were on Annexure A, and the evidence given by the complainant at trial. The Crown concedes that “the factual matters that were recited by his Honour were based on the Crown’s written submissions which appear to have come perhaps from the Crown case statement rather than being entirely based on the evidence in the trial.”

34. The applicant contends that the failure of his counsel to object to this before the sentencing judge “led to a material irregularity” and meant that the applicant was sentenced “upon an erroneous factual basis”. He submits that this constituted a miscarriage of justice. As regards this complaint, the relevant principles were recently set out in Shortland v R [2024] NSWCCA 174 at [45] (Stern JA, Cavanagh and Sweeney JJ agreeing).

35. The applicant also contends that the errors of the sentencing judge were errors of fact, requiring that the Court re-exercise the sentencing discretion: Kentwell v R at [42]. As this Court recognised in Newman (a pseudonym) v R [2019] NSWCCA 157 at [8]-[15] (Basten JA, Hamill and Lonergan JJ agreeing), whilst Kentwell v R established that the sentencing discretion must be re-exercised irrespective of whether the identified error had an actual effect on the sentence imposed, this does not mean that “the error did not need to have the capacity to influence the sentence”: at [11]. As Basten JA explained, this is because “[a]n immaterial error does not lead to a conclusion that the exercise of the discretion has miscarried”: at [11].

36. For its part, the Crown contends that none of the errors in the sentencing judge’s recitation of the facts had the capacity to influence the sentences, submitting that “[t]he gravamen of his Honour’s findings was consistent with [the complainant]’s evidence”, namely that “[the complainant] said ‘no’ to the applicant and that she had a ‘freeze’ response”, which was then reflected by the finding of the applicant’s recklessness as to consent being on par with actual knowledge. In the alternative, the Crown contends that even if this Court finds that ground 2 is made out, no lesser sentence is warranted.

Did the sentencing discretion miscarry?

37. With some hesitation, I have concluded that the errors of fact made by the sentencing judge were capable of influencing the sentencing discretion. The sentencing judge set out a number of factual findings, which were clearly based upon Annexure A, and which were not reflected in the complainant’s evidence. These were not matters that were necessarily peripheral or of no consequence in the sentencing exercise. Four examples show the capacity of these errors to influence sentence.

1. The sentencing judge found that it was the applicant who “began undoing [the complainant’s] buttons”, that “[t]he [complainant] was trying to make the [applicant] realise that she did not want to do this”, and that she “tried to stop her clothes being removed and tried to resist in a small physical way”. However, the complainant did not give any evidence of the applicant undressing her or of physically resisting.

2. The sentencing judge found that the applicant “became a bit more physical with [the complainant] and he pushed her wrists down before moving his hand down taking her jeans off.” However, the complainant’s evidence was that she could not remember who took her jeans off and that the applicant pinned her wrists down after they had been removed.

3. The sentencing judge found that the applicant “reached down and started to pull the string of her tampon” and she then removed it herself “as she was scared he would hurt her by pulling at it.” That contrasts with the complainant’s evidence that he “basically forced” her to remove her tampon and that he was “going to” remove it.

4. The sentencing judge found that the applicant “told [the complainant] to perform oral sex on him” and “[s]he did this out of fear of what he would do if she did not do so.” That contrasts with the complainant’s evidence that the applicant “asked [her] to give him oral [sex]” and her more general evidence that she did so because she “was scared”.

38. The facts as found by the sentencing judge provided the factual context for the sentencing judge’s conclusion as to the objective seriousness of the offending. Taken together, the matters set out above were capable of influencing the sentencing judge’s assessment in this regard. It would be inconsistent with Kentwell v R for this Court to determine whether there was error so as to vitiate the sentencing discretion by a detailed analysis of how the erroneous findings influenced the reasoning of the sentencing judge as reflected in his Honour’s remarks on sentence. The question is whether they were capable of influencing the sentencing discretion and, for the reasons set out above, I am satisfied that they were. It is therefore unnecessary to consider the applicant’s contentions as to miscarriage of justice, relying upon Shortland v R.

Is a lesser sentence warranted in law?

39. The applicant was sentenced to two wholly concurrent terms of imprisonment of six years, to date from 6 September 2021, expiring on 5 September 2027, with a non-parole period of four years expiring on 5 September 2025. The maximum penalty for each of the offences was 14 years and the standard non-parole period was 7 years. The applicant was not entitled to any discount for a guilty plea. Given the error identified above, this Court must re-exercise the sentencing discretion and consider whether or not a lesser sentence is warranted in law. In doing so, I have taken into account all of the material before the sentencing judge and also the affidavit of the applicant affirmed on 23 January 2025.

40. The applicant contends that this Court would form a positive view that a lesser sentence is warranted, relying by way of comparator upon Sabapathy v R [2008] NSWCCA 82 at [70] (Giles J, Adams and Latham JJ agreeing), where the offender was found to be reckless as to whether the victim was consenting and this Court found that it had been open to the sentencing judge to characterise the sexual intercourse without consent in that case as being in the low to mid-range of seriousness. The Crown contends otherwise.

41. The Crown does not seek to disturb the sentencing judge’s finding that the applicant was reckless but that he did not have actual knowledge that the complainant was not consenting. Having considered the evidence that I have summarised above, I am satisfied beyond reasonable doubt that the applicant was reckless as to whether or not she was consenting. I would also agree with the sentencing judge that, on the facts here, this does not diminish the objective seriousness of the offending. The three relevant methods of proof of knowledge of absence of consent are not invariably to be seen as decreasing in seriousness: Slater v R [2024] NSWCCA 210 at [68] (Rigg J, Harrison CJ at CL and Davies J agreeing).

42. The evidence I have already noted shows that the complainant clearly and repeatedly indicated her lack of consent to the applicant’s sexual advances. She then came up with excuses as to why sexual intercourse should not take place. He was determined to have penile vaginal intercourse with her irrespective of this and he effectively forced her to remove her tampon to facilitate this. He pinned her wrists down and then subjected her to penile vaginal intercourse whilst he was on top of her. After all of that had taken place, he subjected her to the degradation of performing oral sex on him. He was clearly well aware of the (very real) possibility of the absence of consent and proceeded anyway: Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 at [16], [35] (Gummow, Hayne and Heydon JJ).

43. Like the sentencing judge, I would characterise the objective seriousness of both offences as being around the mid-range of seriousness. As already noted, the two offences occurred in what was, in effect, a continuum and there is no distinction to be made between them as regards objective seriousness.

44. As the sentencing judge noted, the applicant had no history of sexual offending prior to July 2017 when the offences took place. Subsequently, in 2021 he was convicted of the following offences:

1. one offence of sexually touching another person without consent on 26 October 2019 (for which he received a $2,000 fine and a 12 month community correction order);

2. one offence of using a carriage service to procure a person under 16 years of age for sexual activity on 13 November 2019 (for which he was sentenced to 1 year and 4 months of imprisonment of which he served 11 months, commencing 7 June 2021 and being released on 6 May 2022); and

3. one offence of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive on 1 March 2020 (for which he was sentenced to 6 months imprisonment commencing 7 April 2021 and concluding 6 October 2021).

All of this offending occurred after 23 January 2019, when the applicant was placed under arrest for the index offences before the Court.

45. Whilst these matters are not aggravating, they demonstrate that the applicant could not be said to be unlikely to reoffend in the future, which may be a mitigating factor on sentence.

46. The applicant’s prospects of rehabilitation are not good. As is apparent from the applicant’s affidavit of 23 January 2025, the applicant has completed the EQUIPS Foundation general therapeutic program. He also participated in the Moderate Intensity Sex Offender Program, until his place was terminated upon him filing an appeal against his conviction. Whilst it was not his decision to cease participating in this, he nonetheless has not had the benefit that completion of that program may afford. He has shown no insight into his offending, nor shown any remorse, and has perpetrated offences of a sexual nature subsequent to his arrest for the index offences. Consistent with my own view, according to the sentencing assessment report of Miduren Narendiran, Community Corrections Officer, dated 29 May 2023, the applicant has been assessed as having a medium-high risk of reoffending according to the Level of Service Inventory – Revised.

47. Both general and specific deterrence are significant factors on re-sentence.

48. I have had regard to the applicant’s evidence that he suffers from depression and anxiety for which he is on medication, and sees a mental health nurse from time to time. I have also taken into account the evidence of Mr Luke Brabant, senior clinician at LSC Psychology, including by reference to his case note report dated 26 May 2023, that the applicant had stated that he had self-admitted to Goulburn Mental Health Hospital in 2020 in the context of him suffering from suicidal ideation and that he had sought out psychological treatment “in the past” but was “unable to access it”. There is no evidence that the applicant suffered from mental illness at the time of the index offences.

49. I have also had regard to the victim impact statement which shows the significant ways in which these offences have affected the complainant and, at the time of sentencing, continued to do so.

50. I agree with the sentencing judge that there should be no accumulation.

51. As to the applicant’s reliance upon Sabapathy v R, where a sentence of 3 years with a non-parole period of 18 months was imposed, according to the agreed facts as recounted in the judgment of Giles JA at [2], that case involved very different circumstances from those in this case. Just by way of example, in that case, there were no verbal refusals of consent by the victim, there was no use of force, and no forced removal of a tampon in order to facilitate the sexual intercourse. It therefore does not assist the applicant’s contention that this Court should be satisfied that a lesser sentence is warranted.

52. In the circumstances, I am satisfied that no lesser sentence than that imposed by the sentencing judge is warranted. In these circumstances, the appeal against sentence should be dismissed.

Conclusion

53. I propose the following orders:

1. Grant leave to extend time to file the notice of appeal.

2. Grant leave to appeal.

3. Dismiss the appeal.

54. YEHIA J: I have had the considerable advantage of reading the draft judgment of Stern JA. I agree that the appeal against conviction should be dismissed. The jury had the advantage of observing the complainant give evidence and, in my view, gave careful consideration to questions about her credibility and reliability. Having conducted an independent assessment of the trial evidence, I do not accept that the jury verdicts on either count 2 or 3 (or both) were unreasonable.

55. In respect of the sentence appeal, I agree that the sentencing discretion miscarried for the reasons provided by Stern JA. However, like her Honour I am satisfied that no lesser sentence than that imposed by the sentencing judge is warranted. I therefore agree with the orders proposed by her Honour.

Decision last updated: 07 March 2025