Cornish v The King

[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Crimes Act 1900 (NSW) ss 33, 61, 61HA (repealed), 61HK, 61I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 Violence) Act 2007 (NSW) (sequence 2) and sexual intercourse without consent (sequence 3). The applicant also asked the sentencing judge to take into account two further offences on another Form 1 in relation to sequence 8, being intimidate intending fear of physical or mental harm (sequence 5) and sexual intercourse without consent (sequence 7).

The applicant was sentenced to an aggregate sentence of imprisonment for 6 years commencing 11 October 2022 and expiring 10 October 2028 with a non-parole period of 3 years expiring 10 October 2025.

Sequence 6 occurred on about 9 October 2022. The applicant was sitting on the lounge with the complainant, LM, when he stood up and grabbed and squeezed the complainant’s throat, forced her to stand up and pushed her into the middle of the lounge. This grabbing of the throat lasted for about 15 seconds whilst the applicant threatened the complainant. Sequence 2 occurred the following day, at about 12:30pm. The applicant pulled his vehicle up directly in front of the complainant’s car as she was leaving a medical centre. He wound down his window and said, “Get the fuck out of the car now”, and “Get the fuck out, you don’t want to make things worse for yourself”.

The next day, 11 October 2022, the applicant attended at the complainant’s premises by agreement to collect his belongings. The complainant recorded the whole encounter on her mobile phone. The applicant, despite being told no by the complainant, penetrated LM’s vagina with his fingers (sequence 3). The applicant then continued by licking LM’s vagina during which time the complainant continued to say, “Stop, no” (sequence 4). The applicant then again pushed his fingers into the complainant’s vagina while still being told to stop more than once (sequence 7). The applicant then inserted his penis into the vagina despite further protests and continued until he ejaculated inside the complainant’s vagina (sequence 8). Later that day the applicant sent a screen shot of a message to the complainant in which the complainant had previously revealed the pin code of her apartment to the applicant (sequence 5).

The sentencing judge reduced the applicant’s moral culpability in relation to the offending due to his mental health conditions and harsh upbringing. However, his Honour said that moral culpability was not entirely reduced, and neither was the need for specific and general deterrence. Separately, the sentencing judge found that the applicant’s belief of consent was found to be completely unreasonable.

The applicant sought leave to appeal against his sentence on three grounds:

Ground 1:   The sentence was manifestly excessive in the circumstance of the matter.

Ground 2:   The sentencing judge erred by failing to give effect to the findings in relation to Bugmy.

Ground 3:   The sentencing judge erred in the assessment of the objective seriousness of counts 4 and 8.

The Court (per Davies J, Stern JA and Ierace J agreeing) held, dismissing the appeal:

As to Ground 1:

1. The applicant’s submission that the sentence was manifestly excessive relied chiefly on his success in relation to grounds 2 and 3. Both of these grounds failed: [1] (Stern JA), [55] (Davies J), [63] (Ierace J).

2. The applicant’s comparison with Moore v R failed to show that the present indicative sentences were not open to the sentencing judge and there was nothing to suggest that the aggregate sentence imposed was manifestly excessive. Any reduction to the non-parole period if the head sentence had been reduced would not have been commensurate with the seriousness of the offending. The sentence was not manifestly excessive: [1] (Stern JA), [57]-[60] (Davies J), [63] (Ierace J).

   Moore v R [2024] NSWCCA 282, cited.

As to Ground 2:

1. The sentencing judge accepted the submissions of the applicant in finding that the applicant’s mental health conditions and harsh background were factors in the commission of the offences and lessened his moral culpability. The sentencing judge found a casual link to have been established. The sentencing judge still gave weight to general deterrence and did not completely extinguish the applicant’s moral culpability. These were the determinations that the applicant had sought. The sentencing judge gave full effect to the Bugmy findings: [1] (Stern JA), [32]-[34] (Davies J), [63] (Ierace J).

   Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Lloyd v R [2022] NSWCCA 18; MF v R [2024] NSWCCA 42; Sypher v R [2020] NSWCCA 336, cited.

As to Ground 3:

1. Nowhere did the sentencing judge suggest that the objective seriousness of counts 4 and 8 was increased by regard being given to the offences on the Form 1 documents. Rather, the reference to the offences on the Form 1 documents was in regard to increasing the penalty: [1] (Stern JA), [42]-[43] (Davies J), [63] (Ierace J).

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

2. The sentencing judge found that the applicant had a completely unreasonable belief in the consent of the complainant. The agreed facts demonstrated this finding. Moreover, no House v King error was shown. The applicant failed to show that the determination made by the sentencing judge of the objective seriousness of counts 4 and 8 was not open him: [1] (Stern JA), [51]-[53] (Davies J), [63] (Ierace J).

   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; House v King (1936) 55 CLR 499; [1936] HCA 40; Mulatto v R [2006], Saffin v R [2020] NSWCCA 246, cited.

JUDGMENT

1. STERN JA:   I agree with Davies J for the reasons given by his Honour.

2. DAVIES J:   The applicant pleaded guilty in the Local Court to the following offences:

Sequences 4 and 8: sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for these offences is imprisonment for 14 years and there is a standard non-parole period of 7 years.

Sequence 6: common assault contrary to s 61 of the Crimes Act. The maximum penalty is imprisonment for 2 years and there is no standard non-parole period.

3. The applicant asked the sentencing judge to take into account two offences on a Form 1 in relation to sequence 4. Those offences were:

Sequence 2: intimidate intending fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Sequence 3: sexual intercourse without consent.

4. The applicant also asked the sentencing judge to take into account two further offences on another Form 1 in relation to sequence 8 as follows:

Sequence 5: intimidate intending fear of physical or mental harm.

Sequence 7: sexual intercourse without consent.

5. On 6 December 2023 Judge Payne sentenced the applicant to an aggregate sentence of imprisonment for 6 years commencing 11 October 2022 and expiring 10 October 2028 with a non-parole period of 3 years expiring 10 October 2025. I will set out the indicative sentences when detailing the offending.

6. The applicant now seeks leave to appeal against the sentence on the following grounds:

1. The sentence was manifestly excessive in the circumstance of the matter.

2. The sentencing judge erred by failing to give effect to the findings in relation to Bugmy [Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37].

3. The sentencing judge erred in the assessment of the objective seriousness of counts 4 and 8.

The offending

7. The applicant was in an intimate relationship with LM, the complainant, for approximately two to three months prior to the offending.

8. The relationship was said by the complainant to be perfect at the beginning, but the applicant became jealous and possessive of the complainant, questioning her about contact that he believed she had with other men.

9. On about 9 October 2022 the complainant posted a Facebook photo of her son which was “liked” by another man. The applicant challenged the complainant about the complainant’s relationship with the man who “liked” the Facebook post. The complainant and the applicant were sitting in the lounge in the living room when the applicant stood up and grabbed and squeezed the complainant’s throat, forcing her to stand up and pushed her into the middle of the lounge. This grabbing of the throat lasted for about 15 seconds whilst the applicant threatened the complainant. This constituted sequence 6 being the common assault. The sentencing judge found that the offence was below the midrange towards the lower end of the range and indicated a sentence of 6 months’ imprisonment after a discount of 25% for the applicant’s early plea.

10. On the following day, 10 October 2022, the parties exchanged text messages in which the complainant expressed her dismay at what had occurred on the previous day. Thereafter the applicant attempted to call the complainant on a number of occasions but she did not answer.

11. At about 12:30pm on that day the complainant was at a medical centre. She went outside and entered her vehicle. The applicant pulled his vehicle up directly in front of her car, wound down the passenger window and said, “Get the fuck out of the car now”, and “Get the fuck out, you don’t want to make things worse for yourself”. The applicant then demanded to know who she was on the phone to when he was ringing her. The applicant followed the complainant back into the medical centre where they had a further discussion before he left.

12. This conduct constituted sequence 2 on the Form 1 of intimidation.

13. The following day, on 11 October 2022, after a number of discussions between the applicant and the complainant, the applicant attended at the complainant’s premises by agreement to collect his belongings from her apartment. The complainant recorded the encounter on her mobile phone as she was worried about what the applicant may do to her.

14. At one point the applicant tried to kiss the complainant but the complainant said “Stop please”. The applicant said, “No”, and pushed the complainant onto the bed. The complainant again said, “please stop”. The applicant positioned himself on top of the complainant and pleaded with her that he would not hurt her again and that he could fix the situation. The complainant said that it could not be fixed. The applicant then kissed the complainant again and the complainant said, “please stop”. He again then forcibly kissed the complainant, put his hands down her pants and pushed his finger into her vagina. The complainant was telling him to stop and that she did not want it anymore. This offence constituted Sequence 3 on the Form 1 of sexual intercourse without consent (digital penetration).

15. The applicant, whilst still on top of the complainant, then twice asked the complainant if he was forcing her, to which the complainant answered twice in the affirmative. After further conversation the applicant asked if he could “lick you out” and “kiss you” to which the complainant responded “No”. Notwithstanding, the applicant proceeded to kiss the complainant, placing his tongue in her mouth. He then began grinding his body against her and pulled her pants back down. He started rubbing her vagina. The complainant said that she did not want to do it. The applicant then pulled her legs up in the air and began licking her vagina during which time the complainant continued to say, “Stop, no”. This conduct constituted sequence 4 of sexual intercourse without consent (cunnilingus). The sentencing judge found that this offence was just below the midrange and indicated a discounted sentence (for the early plea) of imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months.

16. The complainant repeatedly told the applicant to stop. The applicant then pushed his finger inside the complainant’s vagina saying that he just wanted sex one more time. The complainant again told the applicant to stop more than once. This offence constituted sequence 7 on the Form 1 of sexual intercourse without consent (digital penetration).

17. The applicant then removed his fingers from the complainant’s vagina and inserted his penis into her vagina without a condom. The complainant continued to tell him to stop, to get off and said that she did not want it. The applicant continued until he ejaculated inside the complainant’s vagina. This offence constituted sequence 8 sexual intercourse without consent (penile/vaginal). The sentencing judge found that the objective seriousness was in the midrange and indicated a discounted sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months.

18. The complainant then told the applicant to take his things and leave. She pointed out to him that he had had sexual intercourse with her without her consent and that when he first tried on that day she did not give her consent to him to do it.

19. The 36-minute recording made by the complainant demonstrated that the complainant told the applicant to stop his conduct towards her no less than 133 times by saying “no” or “stop”.

20. Later that day at 9:55pm, the applicant sent a screen shot of a message to the complainant. The screen shot was a message thread between the applicant and the complainant where the complainant had previously informed the applicant of the pin code to her apartment building. In the circumstances, the receipt of that screen shot caused the complainant to fear for her safety. This constituted the offence of intimidation on the Form 1 (sequence 5).

21. At approximately 4pm on 11 October 2022 the complainant reported what had occurred that day to the police. She also reported the assault two days earlier. The applicant was arrested shortly after he sent the text message of the screen shot to the complainant.

Grounds of appeal

22. It is convenient to deal with ground 1 last because counsel for the applicant made clear that the complaint on the appeal was that it was the failure of the sentencing judge to have proper regard to Bugmy and to the objective seriousness of the offending in sequences 4 and 8 that resulted in a manifestly excessive sentence.

Ground 2: The sentencing judge erred by failing to give effect to the findings in relation to Bugmy

Submissions

23. The applicant submitted that the sentencing judge found him to have mental health conditions, and that there was a lessening of moral culpability in that regard. Further, the sentencing judge found that the applicant had a very harsh background, but her Honour found that his moral culpability was not completely extinguished. The applicant noted that the sentencing judge also found that denunciation and the protection of the community could not be overlooked and that it did not follow that no weight was to be given to general deterrence.

24. The applicant submitted that the sentencing judge failed properly to analyse the tension between the competing purposes of punishment in light of her Honour's findings in relation to Bugmy and the applicant’s overall compelling subjective case as it appeared in the report of Dr Donald Rowe. The applicant submitted that whilst Bugmy factors were found to be enlivened, when one considered the overall sentence imposed, full effect does not appear to have been given to those findings. That was submitted not to be in keeping with the principles in Lloyd v R [2022] NSWCCA 18.

Consideration

25. The sentencing judge relevantly said this:

The Court was assisted by the cross-examination of the psychologist Dr Donald Rowe and the expert report is found in the sentence bundle. I accept that he has a persistent depressive disorder with clinical depression, borderline personality disorder with features of complex PTSD and prior substance abuse disorder. Because of this, I accept that there is a lessoning of his moral culpability in relation to this offending.

I note that COVID-19 is still in the - as I understand it, is still in the community and still in the jail system and that he has been in custody back to October last year. Unfortunately, he had a very harsh background. As Ms Hogan notes, referring back to those matters I stated, these mental health conditions were considerable factors in the commission of the offences and further that he had experienced considerable deprivation in his childhood that had rendered him vulnerable.

The deprived background is not only contained within the report of Dr Rowe but it is contained within the reference letter from his maternal aunt, which is adopted in her affidavit dated 6 November 2023. The offender has and totally had an upbringing marked by serious instability and numerous traumatic events. As observed by Dr Rowe, at least to his credit, that he had otherwise maintained a lawful existence. I accept the submission at paragraph 24, in considering the detailed opinions of Dr Rowe and when considering the factual scenario for the offending, there is an established causal link between upbringing and mental health conditions and the offending.

Given his history, I accept the imprisonment is likely to be more of a negative experience for the offender. It is the position though that his moral culpability was not completely extinguished nor the requirement for specific and general deterrence. Denunciation and protection of the community cannot be overlooked, and it does not follow and did not follow in this case, that no weight was to be given to general deterrence.

(emphasis added)

26. The applicant submitted, nevertheless, that, following what was said in MF v R [2024] NSWCCA 42, the sentencing judge did not say how the moral culpability was reduced and how the sentencing judge arrived at the sentence ultimately imposed.

27. MF was a case involving an offender who was aged 16 at the time of the offending. The offence was contrary to s 33(1) of the Crimes Act, wounding with intent to cause grievous bodily harm. The complaint in that case, upheld by this Court, was that the sentencing judge failed to say how the applicant’s youth impacted on both moral culpability and general deterrence in circumstances where the sentencing judge found the offence was objectively a serious incident of the type of offence in contravention of s 33(1), and that the offender had a substantial level of moral culpability.

28. Justice Cavanagh (with whom Garling and Wilson JJ agreed) said:

[67]   Similarly, when referring to general deterrence his Honour referred to the need to ensure the applicant was adequately punished for the offence and “to provide for appropriate weight to be given to considerations of general deterrence, specific deterrence and community protection…” without mentioning the impact that the factors associated with the applicant’s age might have had on general deterrence.

[68]   The only mention in the sentencing judgment to general deterrence was his Honour's reference to providing appropriate weight to general deterrence in that passage.

[69]   It is thus difficult to discern how his Honour has had regard to the applicant's youth in assessing the significance of the two factors identified in the grounds of appeal.

[70]   If his Honour did reduce moral culpability, it is not clear from what point moral culpability might have been reduced. Perhaps it was reduced from a finding of a very substantial moral culpability but that is not apparent and, as his Honour does not say so, this Court, and indeed any interested person, would not know.

[71]   If his Honour’s reference to the applicable principles relating to youth as a mitigating factor was intended to be a reference to its impact on moral culpability and general deterrence as well as rehabilitation, then I am unable to determine from his Honour’s remarks how they impacted on the sentence. Contrary to the Crown submission, the finding of substantial moral culpability and the singular reference to general deterrence point in the other direction, that is that his Honour did not take account of the applicant’s youth in assessing the importance of either moral culpability or general deterrence.

[72]   Further, it is difficult to accept that moral culpability was reduced having regard to all of the factors identified, when it was described or found to be at the same general level as the finding on objective gravity. That is, the offending was objectively serious and the moral culpability was substantial. The similarity of these terms does not lead easily to the conclusion that the sentencing judge made a finding of reduced or lessened moral culpability.

[73]   In DS v R; DM v R (2022) 109 NSWLR 82 (“DS”), the Court (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ) explained the relationship between the separate but related concepts of moral culpability and objective seriousness by asking at [91]: “from what has the offender's moral culpability been reduced?” and stating “[t]he short answer is from a moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence.”

[74]   Describing the applicant’s moral culpability as substantial for an offence which is described as serious does not tend to suggest that the sentencing judge has applied a reduced moral culpability in the exercise of the sentencing discretion.

29. The applicant placed weight on his Honour’s statement at [70], that it was not clear from what point moral culpability might have been reduced. The meaning of that remark is made clear by what his Honour said at [72] - [74], identifying the equivalence the sentencing judge found between objective seriousness and the offender’s moral culpability, with the result that it was clear his moral culpability had not been reduced by reason of his youth.

30. A consideration of the sentencing judge’s remarks in MF and the fact that the issue concerned the applicant’s youth at the time of the offending mean that the decision is of little or no assistance in the present case.

31. Nor does this Court’s decision in Lloyd v R [2022] NSWCCA 18 provide support for the applicant’s contentions in the present case. As this Court made clear in Moore v R [2024] NSWCCA 115 at [64], Lloyd does not provide a template of how sentencing judges should go about their task. The issue in Lloyd was an assertion that the sentencing judge had failed to engage with the subjective case of the applicant. In making reference to Lloyd, this Court in Moore said at [66]:

The proper approach is to examine what submissions were made to the sentencing judge and to examine how those submissions were dealt with by his Honour in light of established principles.

The Court also drew attention at [65] to what had been said by McCallum J in Lloyd at [33] deprecating reliance on sentencing remarks in other cases as if that approach had some precedential value. Justice McCallum quoted what Basten JA said in Sypher v R [2020] NSWCCA 336 at [2]:

There is no doubt that the judge set out, and therefore had regard to, relevant evidence in respect of these matters. In some cases it will be possible readily to infer that the setting out in reasons for judgment of mitigatory circumstances will permit the court to be satisfied that those factors were properly taken into account - See, eg, Wood v R [2019] NSWCCA 309 at [121]-[123]. However, whether such an inference should be drawn in a particular case does not depend upon precedent, but on a proper analysis of the circumstances of the case and the judge's reasons.

32. In the present case, the applicant had, in his written submissions to the sentencing judge, drawn attention to the serious instability in his upbringing and numerous traumatic events, as set out in Dr Rowe’s report. He had submitted that there was an established causal link between his upbring and mental health conditions and the offending, and had submitted that that operated to reduce his moral culpability and that he was not a suitable vehicle for full weight to be given to specific and general deterrence.

33. It is apparent from the portion of the remarks on sentence (“ROS”) set out, that the sentencing judge accepted those submissions in finding that the mental health conditions and background were factors in the commission of the offences and that there was a lessening of moral culpability in relation to the offending. The causal link was found to have been established. The sentencing judge said, however, that the applicant’s moral culpability was not completely extinguished nor was the requirement for specific and general deterrence, and that it did not follow from those matters that no weight should be given to general deterrence.

34. They were the determinations that the applicant had sought to have made by the sentencing judge. It is difficult to understand what more the sentencing judge could or should have said about those matters.

35. I would reject this ground of appeal.

Ground 3:   The sentencing judge erred in the assessment of the objective seriousness of counts 4 and 8

Submissions

36. The applicant submitted that there was an error in the assessment of the objective seriousness of the offending, in particular, because the sexual intercourse offences all formed part of the one episode such that the sexual assault matters on the Form 1 documents did not operate to increase substantially the objective seriousness of the offences.

37. The applicant pointed to a portion of the ROS where her Honour said:

[T]hese are four separate offences and I will give them weight in accordance with that authority.

The authority referred to was R v Cook [2023] NSWCCA 9; (2023) 103 MVR 285 which discussed what had been said in 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 (“the guideline judgment”).

38. The applicant also pointed to what her Honour said during the sentence proceedings as follows:

I don’t accept that about the Form 1 matters, would not operate to substantially increase the penalty. They are two separate acts of digital penetration, putting aside the stalk/intimidate.

39. The applicant submitted that her Honour’s finding that he did not have actual knowledge of the complainant’s lack of consent, nor was he reckless to whether she had given consent, were matters which lowered the objective seriousness of the sexual intercourse offences.

Consideration

40. In my opinion, the applicant’s submissions are based on a misapprehension. It is certainly the case that sentences taken into account on a Form 1 do not reflect on the objective seriousness of the offence charged. However, as this Court said in Cook when discussing the guideline judgement at [18]:

The entire point of the process is to impose a longer sentence … than would have been imposed if the primary offence had stood alone.

And at [42]:

Although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence.

41. Her Honour first considered the objective seriousness of the offending, finding that the offence involving cunnilingus fell just below the mid-range and the offence involving penile-vaginal intercourse fell in the middle of the range. Her Honour then went on to consider the effect that the Form 1 offences would have on the sentence, not on the assessment of objective seriousness. The sentence immediately preceding the one to which the applicant pointed (set out at [37] above), was this:

Ms Hogan argued that as all offending are sexual offences and took place on the one day, the other behaviour would not greatly increase the sentence.

(emphasis added)

42. Further, putting aside the issue of whether a judge’s comments made in the course of argument during sentence proceedings should be regarded when considering the ROS, the passage complained of by the applicant clearly shows that the sentencing judge was referring to the Form 1 matters operating “to substantially increase the penalty”, not the objective seriousness.

43. Contrary to the applicant’s submission, nowhere did her Honour suggest that the objective seriousness of sequences 4 and 8 was increased by regard being given to the offences on the Form 1 documents.

44. In relation to the issue of the applicant’s knowledge or belief about consent, the issue derives from s 61HK of the Crimes Act which relevantly provides:

(1) A person (the accused person) is taken to know that another person does not consent to a sexual activity if—

(a) the accused person actually knows the other person does not consent to the sexual activity, or

(b) the accused person is reckless as to whether the other person consents to the sexual activity, or

(c) any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

45. The predecessor to this section was s 61HA(3) which was in relevantly (but not precisely) identical terms. Concerning s 61HA(3), Basten JA (Rothman and Price JJ agreeing) said in Saffin v R [2020] NSWCCA 246:

[22]   The primary importance of this provision is that it identifies three different bases upon which the applicant might be convicted, but in reducing degrees of moral culpability….

[49]   In any event, in the present case, the judge was satisfied that the applicant was reckless as to whether or not the victim was consenting, that satisfaction being established to the criminal standard, beyond reasonable doubt.

[50] Secondly, there was no inconsistency between this conclusion as to recklessness and the finding that there was a reasonable possibility that the applicant believed the offender to be consenting (albeit unreasonably). Acceptance of a reasonable possibility is, necessarily not a finding that the belief existed at any relevant level of satisfaction. It is not inconsistent with a finding as to recklessness. Further, the separate states of mind identified in s 61HA(2) (sic) do not create discrete and independent categories. The idea that a person “knows” that the other is not consenting itself involves the formation of a belief at a certain level of conviction. Depending on the circumstances, it may be negated by a hope or expectation that the other is consenting, or even by a disregard of indications to the contrary. A disregard of the circumstances, so as not to form an opinion, will readily lead to a finding that the person was reckless as to consent. There is no clear dividing line between pars (a) and (b). The third category (par (c)) does not in terms refer to an actual belief in consent, but only to the lack of reasonable grounds for such a belief. A finding as to lack of reasonable grounds may well be consistent with, and indeed evidence of, the person being reckless. It is only if that finding is accompanied by a finding as to an actual belief in consent that par (c) is distinguishable in terms of culpability from pars (a) and (b).

(emphasis added)

46. The sentencing judge said this:

In considering the subjective seriousness there had been a considerable amount of discussion and submissions made as to what was his understanding in respect of lack of consent. Although of course the pleas of guilty indicate that he accepts responsibility and accepts that he had relevant knowledge, it was argued that actual knowledge was objectively more serious than belief in consent that was not reasonable in the circumstances. I am not sure that the difference is as great as was submitted, but in any event, given that it will be in my view and I accept a more serious way of bringing forward knowledge, I cannot be satisfied beyond reasonable doubt that he actually knew or was reckless.

47. In many respects, this was a surprising determination, and a favourable one to the applicant, because the agreed facts said:

55.   In the course of the 36-minute recording, the complainant repeatedly indicated that she wanted the offender to stop his conduct towards her no less than 133 times, including by saying the words “no” and “stop” times.

48. When setting out the facts earlier in this judgment, I have noted a number of the occasions when the complainant clearly indicated to the applicant that she did not consent to the activity he was intending or that he was engaging upon.

49. Further, during the course of the sentencing hearing, the sentencing judge said:

And then the other thing I didn’t accept, 133 times she said “no”. If that’s not knew she was not consenting, I don’t know what is.

50. Nevertheless, the present submission must be considered on the basis of the facts as found by the sentencing judge.

51. Even accepting that actual knowledge is more serious than an unreasonable belief in consent, the present is an extreme case where the agreed facts demonstrate the complete unreasonableness of the belief which the sentencing judge found the applicant had. He was informed time and again when he attempted to do things to the complainant and when he was actually doing them that she did not consent to them.

52. In my opinion, the applicant fails to show that the determination of objective seriousness for sequences 4 and 8 was not open to the sentencing judge.

53. In any event, it is well known that the characterisation for the degree of objective seriousness of an offence is classically within the role for the sentencing judge, and that it is necessary to show a House v King (1936) 55 CLR 499; [1936] HCA 40 error for this court to intervene: Mulato v R [2006] NSWCCA 282. No such error is shown.

54. I would reject this ground.

Ground 1:   The sentence was manifestly excessive in the circumstances of the matter.

55. The applicant’s submission that the sentence was manifestly excessive chiefly relied on his success in relation to grounds 2 and 3. In addition, he submitted that the indicative sentences were not consistent with the findings of objective seriousness, and he compared the indicative sentences with those in Moore. In the latter regard, the applicant submitted that the offending in Moore had elements of degrading activity in addition to the actual sexual intercourse.

56. In Moore the act of cunnilingus was found at the lower end of the midrange and the undiscounted indicative sentence was imprisonment for 5 years. The undiscounted indicative sentence for the act of cunnilingus in the present case was 6 years. The sentencing judge described the offence as “quite undignified”. The second act of sexual intercourse in Moore, digital anal penetration, was found to fall within the midrange, probably slightly above the middle of the midrange, and the undiscounted indicative sentence was imprisonment for 6 years. In the present case, the undiscounted indicative sentence was also 6 years for the penile/vaginal penetration which was assessed at the midrange. It involved intercourse to ejaculation without a condom.

57. It is difficult to see how a comparison with Moore is of any assistance to the applicant. If anything, the indicative sentences in Moore tend to demonstrate that the indicative sentences in the present case were entirely open to the sentencing judge. Moreover, the sentences in Moore were imposed in the District Court, and the judgment in this Court relevantly held only that the aggregate sentence was not manifestly excessive. At its highest, the judgment of this Court said that the indicative sentences imposed in Moore were not out of line with indicative sentences in some other cases considered by the Court (see at [103]). Such a determination does not suggest that the present indicative sentences were not open to the sentencing judge.

58. Finally, the assertion of manifest excess relates to the aggregate sentence which included an offence of common assault on a separate occasion and four offences on two Form 1 documents including two separate offences of intimidation and two further offences of sexual intercourse without consent.

59. Making every allowance for the subjective case of the applicant, as the sentencing judge did, and bearing in mind the maximum penalty and the standard non-parole period for the sexual intercourse offences, the aggregate sentence imposed was not manifestly excessive.

60. The sentencing judge gave a considerable reduction of the statutory ratio for special circumstances. The applicant submitted that the principal challenge was to the head sentence but submitted further that if the head sentence was reduced, the non-parole period should be proportionately reduced to maintain the ratio determined by her Honour. In my opinion, any such reduction would result in a sentence that was not commensurate with the seriousness of the offending.

61. I would reject this ground.

Conclusion

62. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

63. IERACE J:   I also agree with Davies J.

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Decision last updated: 27 September 2024