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Cornish v The King

Cornish v The King

Case [2024] NSWCCA 177 27 September 2024

Appeal

Criminal Liability

Sentencing

Misapplication of Principle

Duress & Necessity

Mens Rea & Intention

Criminal Law

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Crimes Act 1900 (NSW) ss 33, 61, 61HA (repealed), 61HK, 61I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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cornish v The King

Details

AGLC: Cornish v The King [2024] NSWCCA 177
Case: [2024] NSWCCA 177
Decision Date: 27 September 2024

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.

Orders