Cornish v The King

Case [2024] NSWCCA 177


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Cornish v R [2024] NSWCCA 177
Hearing dates: 9 September 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Before: Stern JA at [1]
Davies J at [2]
Ierace J at [63]
Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – misapplication of principle – where applicant pleaded guilty to multiple counts of sexual intercourse without consent and common assault – where parties had been in intimate relationship – offending occurred as a result of victim terminating relationship - whether sentencing judge erred by failing to give full effect to the findings in relation to Bugmy – where applicant was found to have mental health conditions and a very harsh background – where applicant’s moral culpability was reduced as a result of Bugmy factors but weight still given to specific and general deterrence – challenge to assessment of objective seriousness - where sentencing judge increased sentence but not objective seriousness (as applicant asserted) by reason of Form 1 matters – where applicant’s knowledge of lack of consent arose from unreasonable belief in victim’s consent – no error in assessment of objective seriousness – sentence not manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW) ss 33, 61, 61HA (repealed), 61HK, 61I

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Cases Cited:

Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

House v King (1936) 55 CLR 499; [1936] HCA 40

Lloyd v R [2022] NSWCCA 18

MF v R [2024] NSWCCA 42

Moore v R [2024] NSWCCA 115

Mulato v R [2006] NSWCCA 282

R v Cook [2023] NSWCCA 9; (2023) 103 MVR 285

Saffin v R [2020] NSWCCA 246

Sypher v R [2020] NSWCCA 336

Texts Cited:

Nil

Category:Principal judgment
Parties: Jarrod Alan Cornish (Applicant)
Crown (Respondent)
Representation:

Counsel:
K Hogan (Applicant)
E Wilkins SC (Respondent)

Solicitors:
National Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2022/303582
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

Nil

Date of Decision:
6 December 2023
Before:
Payne DCJ
File Number(s):
2022/303582

HEADNOTE

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

The applicant, Jarrod Alan Cornish, pleaded guilty in the Local Court to two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (sequences 4 and 8) and one count of common assault contrary to s 61 of the Crimes Act (sequence 6). The applicant asked the sentencing judge to take into account two offences on a Form 1 in relation to sequence 4, being intimidate intending fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal…

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Cornish v The King [2024] NSWCCA 177
Case
[2024] NSWCCA 177
Decision Date

CaseChat Overview and Summary

The case of Cornish v The King involved the appellant, who had pleaded guilty to multiple counts of sexual intercourse without consent and common assault. The court was required to determine whether the sentencing judge had erred in the sentence imposed. The appellant argued that the judge misapplied the principles set out in the Bugmy case, particularly in relation to the consideration of mitigating factors arising from the appellant's mental health conditions and difficult background. The appellant's counsel contended that the sentencing judge failed to give full effect to these factors, resulting in a sentence that did not properly account for the reduced moral culpability.

The High Court examined the sentencing principles applicable in cases involving sexual offences, focusing on the balance between specific and general deterrence and the impact of mitigating factors. The court considered whether the sentencing judge had appropriately assessed the objective seriousness of the offences and whether the sentence was manifestly excessive. The Court found that the sentencing judge had correctly applied the principles, taking into account the Bugmy factors but also the need for general deterrence. The Court held that there was no error in the assessment of the objective seriousness of the offences, as the sentence was not increased beyond what was warranted by the Form 1 matters. The Court concluded that the sentence was not manifestly excessive, given the nature and circumstances of the offences.

The Court further clarified that the appellant's knowledge of the lack of consent arose from an unreasonable belief in the victim's consent, which did not warrant a significant reduction in the sentence. The Court held that the sentencing judge had appropriately balanced the various considerations and that the sentence imposed was just and appropriate under the circumstances. The appeal was ultimately dismissed, with the Court affirming the sentence handed down by the lower court. The Court's decision underscored the importance of a balanced approach in sentencing, taking into account both the mitigating factors and the need for general deterrence in cases of sexual offences.

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Background

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Evidence

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Ratio Decidendi

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