Fisher v R; R v Fisher

[2021] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fisher v R; R v Fisher [2021] NSWCCA 91

Hearing dates:

12 March 2021

Decision date:

07 May 2021

Before:

Brereton JA at [1]; Fullerton J at [62]; Adamson J at [91]

Decision:

Fisher v R

(1)   Grant leave to the applicant to appeal against his conviction.

(2)   Dismiss the appeal.

R v Fisher

(1)   Allow the appeal.

(2)   Set aside the sentence imposed by Craigie SC DCJ on 19 November 2020 and, in lieu thereof, sentence the respondent, Matthew Fisher, to a term of imprisonment of 5 years commencing on 7 May 2021 and expiring on 6 May 2026 with a non-parole period of 3 years’ imprisonment and a balance of term of 2 years.

(3)   The first day on which the respondent will be eligible for release to parole will be 6 May 2024.

Catchwords:

CRIME — Appeals — Appeal against conviction — Inconsistency between verdicts on different counts — Two distinct acts of intercourse — Different assessment of the circumstances affecting the applicant’s state of mind at the time of the second act of intercourse — Applicant argued unreasonable verdict — Open to the jury to return a verdict of guilty on one count albeit not agreeing on the other count

CRIME — Appeals — Appeal against sentence — By Crown — Alleged error in taking into account the applicant’s self-induced intoxication in mitigation — Using self-induced intoxication to “explain” the applicant’s conduct — Review of the sentencing judge’s assessment of the facts and objective seriousness — Alleged manifest inadequacy — Court to consider all circumstances that inform the sentencing exercise, except the applicant’s self-induced intoxication — Residual discretion to decline to intervene ought not be exercised

CRIME — Appeals — Re-sentence — Purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Aggravating and mitigating factors

Legislation Cited:

Crimes Act 1900 (NSW), Pt 11A, ss 61HA, 61I, 428B, 428D

Criminal Appeal Act 1912 (NSW), s 5D

Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 17C, 21A, 67, 89

Cases Cited:

ABvR [2014] NSWCCA 339

BA v R [2015] NSWCCA 189

BP v The Queen [2010] NSWCCA 159; (2010) 201 A Crim R 379

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Crofts v R [2018] VSCA 197

Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191

Day v R [2017] NSWCCA 192

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55

Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

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

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Mulato v R [2006] NSWCCA 282

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Nguyen v R [2021] NSWCCA 85

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v Alcazar [2017] NSWCCA 51

R v Barker [2016] NSWCCA 193; (2016) 77 MVR 448

R v Chandler (2019) 101 NSWLR 208; [2019] NSWCCA 250

R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412

R v Isaacs (1997) 41 NSWLR 374

R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31

R v MS [2005] NSWCCA 322

R v Ngyuen [2013] NSWCCA 195

R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172

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

Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Texts Cited:

New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007

Category:

Principal judgment

Parties:

Matthew Patrick Fisher (Applicant / Respondent)
Regina

Representation:

Counsel:
A Bellanto QC / T Bicanic (Applicant/ Respondent)
M A Kumar (Crown)

Solicitors:
Baker Ryrie Rickards Titmarsh Solicitors & Barristers (Applicant / Respondent)
Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2018/224247

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 November 2020

Before:

Craigie SC DCJ

File Number(s):

2018/224247

headnote

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

Matthew Fisher (F) was charged on indictment of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Count 1 concerned an act of oral intercourse and count 2 concerned an act of penile/vaginal intercourse.

Following a trial in the District Court of New South Wales, a jury convicted F on count 1, but was unable to reach a verdict on count 2. On 19 November 2020, F was sentenced by Craigie SC DCJ to a Community Corrections Order for three years.

In this Court, F sought leave to appeal against his conviction for the offence on count 1 of the indictment (Conviction Appeal) and the Crown appealed against the sentence (Crown Sentence Appeal).

The grounds raised in the Conviction Appeal were:

1. whether the verdict of guilty on count 1 was irrational and inconsistent with the failure to agree on count 2; and

2. whether the verdict on count 1 was unreasonable having regard to the evidence and failure to agree on count 2.

The grounds raised in the Crown Sentence Appeal were:

1. whether his Honour erred in taking into account F’s self-induced intoxication in mitigation, contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW); and

2. whether the sentence imposed was manifestly inadequate.

The Court (unanimously) granted leave to appeal against the conviction but dismissed the Conviction Appeal, and, by majority (Adamson J, Fullerton J agreeing), allowed the Crown Sentence Appeal, holding:

As to the Conviction Appeal:

1. The conviction on count 1 is reconcilable with the failure to agree on count 2. The two counts concerned two distinct acts of intercourse. Despite the jury being satisfied that F had no reasonable grounds for believing that the complainant consented to the oral intercourse (count 1), some jurors may have considered that, by the time of the penile/vaginal intercourse (count 2), it was reasonably possible that F had such grounds: [3] (Brereton JA); [63] (Fullerton J); [182]-[184], [187] (Adamson J).

2. Lack of unanimity with respect to the third element of count 2 reflected differing views among jurors as to F’s state of mind at the time of the second act. It was open to the jury to return a verdict of guilty on count 1, notwithstanding its failure to agree on count 2: [9] (Brereton JA); [195]-[197] (Adamson J).

As to the Crown Sentence Appeal:

Per Adamson J, Fullerton J agreeing at [64]:

1. The sentencing judge expressly took into account self-induced intoxication. This approach was erroneous and undermines the sentencing judge’s findings of fact and assessment of objective seriousness. Self-induced intoxication cannot be taken into account either on the question of F’s knowledge of whether the complainant consented or as a mitigating factor on sentence, nor can it be taken into account by a sentencing judge to explain an accused’s behaviour where such explanation effectively minimises the accused’s moral culpability: [221], [224]-[225], [232] (Adamson J). See [73] (Fullerton J).

2. The Court is therefore required to review the sentencing judge’s assessment of the facts and objective seriousness on the correct basis. The objective seriousness is just below mid-range: [238]-[242]. The circumstances in which the offence was committed, the gross violation of the complainant’s body and the lack of mitigating factors required that a custodial sentence be imposed to reflect the objective seriousness of the offence. The sentence imposed was plainly unjust and unreasonable: [244]. The residual discretion to decline to intervene ought not be exercised: [246]-[253].

3. The sentence imposed must reflect the purposes of sentencing. Importantly, it must indicate to the community at large the seriousness of sexual assault on a sleeping woman who is a stranger to her assailant. Considering all factors, a penalty of full-time custody will be imposed: [255]-[258].

Per Fullerton J:

1. A material sentencing error was demonstrated. The Court is required to review the sentencing judge’s factual findings, including the assessment of objective seriousness of the offending: [76]-[78]. It was not open to the sentencing court to ameliorate or reduce the offender’s culpability because of intoxication. The sentencing judge was obliged to disregard F’s intoxication entirely when enquiring into his state of mind and awareness or perception at the time of offending where that enquiry was undertaken for the purposes of assessing the objective seriousness of his offending: [71]-[75].

R v Alcazar [2017] NSWCCA 51, Tepania v R [2018] NSWCCA 247 and Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54.

1. What carries predominant weight in assessing objective seriousness (in addition to those identified by Adamson J at [238]-[242]) as just below the mid-range is the degree of deliberation involved in the commission of the offence: [89].

Per Brereton JA (dissenting):

1. There was no error in the way the sentencing judge had regard to F’s self-induced intoxication. A sentencing judge is not precluded by s 61HA(3)(e) of the Crimes Act 1900 (NSW) or by s 21(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), from any consideration of self-induced intoxication: it may be explanatory, negate an aggravating factor, inform another mitigating factor, or support a finding that conduct was out of character: [20], [22], [24]-[27], [33]. See [28]-[30].

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247; R v Alcazar [2017] NSWCCA 51; BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159.

1. There was no error in the sentencing judge’s conclusion that objectively the offending was towards the lower end. The sentence was not so manifestly inadequate that it was plainly unjust. F had no record of previous contact with the criminal justice system, he was of good character, unlikely to reoffend, and had good prospects of rehabilitation. It was open to the Court to impose a non-custodial sentence: [37]-[38], [41], [57]-[59].

Nguyen v R [2021] NSWCCA 85 at [6] (Wilson J; Bathurst CJ and Beech-Jones J agreeing); Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54.

Judgment

1. BRERETON JA: The applicant Matthew Fisher seeks leave to appeal from his conviction by a jury on 19 February 2020 of an offence under s 61I of the (NSW) Crimes Act 1900 (“Crimes Act”) (sexual intercourse without consent, on 26 January 2018, at Castle Hill). On a second count, which alleged a second offence under the same provision at the same time and place, the jury was unable to reach a verdict and was discharged, and the Director of Public Prosecutions has since directed that there be no further proceedings in respect of that count. On 19 November 2020, Craigie SC DCJ sentenced the applicant to a Community Corrections Order (CCO) for a period of three years. The Crown appeals from that sentence.

2. I have had the considerable benefit of reading in draft the judgment to be delivered by Adamson J. I am indebted to her Honour for the comprehensive summary of the evidence, the trial, and the sentencing proceedings, which I gratefully adopt.

THE CONVICTION APPEAL

3. In respect of the appeal against conviction, I agree with the orders proposed by Adamson J, and with her Honour’s reasons.

4. On the first ground, which contends that the conviction on the first count (oral intercourse) was inconsistent with the jury’s failure to convict on the second count (penile/vaginal intercourse), while I accept that, as Bathurst CJ envisaged in Daaboul v R,[1] there may well cases in which a jury’s conviction of an accused on one count may be irreconcilable with its failure to agree on another, this is not one of them. The conviction on the first count is reconcilable with the failure to agree on the second on the basis that while the jury was (unanimously) persuaded that the applicant had no reasonable grounds for believing that the complainant had consented when he embarked on the conduct which constituted the first count, some members of the jury may not have been have persuaded that, by the time of the conduct which constituted the second count, he had no such grounds, given the complainant’s apparently positive response to the oral intercourse.

   1. (2019) 100 NSWLR 682 at 720 [248] (Bathurst CJ; Bell P and Hamill J agreeing); [2019] NSWCCA 191.

5. The submissions on behalf of the appellant were to the effect that the evidence was if anything stronger on the second count than on the first, because the complaints made by the complainant after she discovered that the person who had been in her bed was not her boyfriend were focussed on the penile/vaginal intercourse. Had there been an issue as to whether the oral intercourse had taken place, there might have been significance in that circumstance, although even then it is perfectly natural that the complainant would focus on what might be considered the more invasive and grave violation. But there was no dispute that the oral intercourse took place; the issues at trial were whether the complainant consented, and if not whether the appellant knew, or was reckless as to whether, she did not consent, or had no reasonable grounds to believe that she did.

6. The conviction on the first count necessarily involves acceptance that the complainant did not in fact consent, or did so only under a mistake as to the identity of the applicant. The remaining issue was whether the applicant knew that to be so. That the central issue must have been the applicant’s state of mind is supported by the jury’s request:

“To ensure we correctly understand could you please go over again the third element of proof required, in particular how points A, B and C relate to the accused being considered as knowing there was potentially no consent.”

7. The focus of the complainant’s early complaints says absolutely nothing about the applicant’s state of mind – and in particular whether he lacked reasonable grounds for believing that she consented. The jury was rightly directed, in conformity with Crimes Act, s 61HA(3)(d), that (emphasis added):

“For the purpose of making any finding regarding the accused's state of mind regarding consent or lack of consent, you must have regard to all the circumstances of the case, including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse.”

8. The absence of evidence of any step taken by the applicant in that respect provides a sound basis for a conclusion that he had no reasonable grounds for believing that there was consent.

9. On the second ground, which contends that the verdict was unreasonable, the only basis relied on was the supposed inconsistency of the verdicts. I agree that lack of unanimity with respect to the third element of count 2 does not necessarily reflect in any way adversely on the complainant’s credibility, but appears to reflect differing views among the jurors as to the applicant’s state of mind at the time of the second act: some members of the jury may have thought that, when the applicant initiated penile/vaginal intercourse, given the greater opportunity for the complainant by then to have realised that he was not her boyfriend, and her apparently positive response to the oral stimulation, there was at least a reasonable possibility that the applicant then had reasonable grounds for believing that the complainant had consented, when such grounds had been lacking when he initiated oral intercourse without taking any steps to ascertain consent. There was, therefore, a rational basis upon which the jury could return a unanimous verdict on count 1, yet be unable to reach a unanimous, or majority, verdict on count 2.

THE CROWN INADEQUACY APPEAL

10. The Crown appeals against the sentence imposed on the applicant, which is contended to be inadequate.

Principles relating to Crown appeals generally

11. The principles relevant to Crown appeals under (NSW) Criminal Appeal Act 1912, s 5D, were summarised by Hoeben CJ at CL in R v Barker,[2] as follows:

    2. (2016) 77 MVR 448 at 461 [52]-[53], 462 [55] (Hoeben CJ at CL; Bathurst CJ and Price J agreeing); [2016] NSWCCA 193.

“[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” – Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

[53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(i)   Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii)   Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

(iii)   Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).

…

[55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.”

12. As the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, the Court retains a residual discretion whether or not to interfere with an erroneously lenient sentence,[3] and the Crown must negate any reason why that residual discretion of this Court should not be exercised so as to decline to intervene. [4]

    3. Green v The Queen (2011) 244 CLR 462 at 465-466 [1] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

    4. Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44; Green v The Queen (2011) 244 CLR 462 at 477 [36] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

13. The present Crown appeal invokes both aspects: the first ground contends that there was specifically identifiable error in the sentencing process; and the second contends that the sentence is so manifestly inadequate that it is “plainly unjust”.

Ground 1: alleged error in taking into account the applicant’s self-induced intoxication in mitigation

14. In the judge’s remarks on sentencing, reference was made, on several occasions, to the applicant’s self-induced intoxication. First, his Honour’s remarks on 21 August 2020, which culminated in an order that a report be prepared for the purpose of considering the suitability of a community correction order in lieu of full-time imprisonment, included the following (emphasis added):

“In analysing whether that is, in fact, established to a satisfactory level, I must also take account of alcohol consumed on the offender’s part. That is to be discounted as any mitigating factor. However, it is to be considered, in terms of explanation, as to how the offender might have truthfully believed, upon a totally unreasonable basis, that consent from this unknown form in the bed was forthcoming, and may have been mistaken, in that the victim was indeed present in the house for some time prior as the only female. However, the Crown, in effect, has asserted, as the jury was instructed, that the effects of alcohol should be ignored for operative purposes. I, however, do take some account of it upon a different basis which is not mitigatory, but potentially explanatory. It is also relevant, I find, to consideration of whether there was any deliberate deception.

I have come to the conclusion, upon examination of all of the available evidence, and as is consistent with the jury verdict, that the offender had intercourse with the complainant without her consent, and in circumstances that I am certainly satisfied that it is more probable than not that he honestly believed that she was consenting. I find that to be consistent with behaviour that included his joking about dropping change, his return to the room and making inquiry of the complainant as to what was wrong, and as to his continued presence in the house.”

15. Secondly, later on the same occasion, his Honour said:

“In the present instance I make it clear I afford the offender no mitigation by reason of his intoxication, although I am satisfied that he would not have offended but for his intoxication and its impact upon his assessment of the situation. Moreover, I find that his behaviour was boorish and inconsiderate in the extreme. It was not deliberate. It was not reckless, but it was certainly careless of a situation laden with a risk of mistake by him and, indeed, as I accept, a mistake as to identity by the young women with whom, upon thin evidence, he thought it appropriate to have sexual relations.

I have no doubt that his actions have very considerable humiliation and distress to the victim, and that requires condemnation. However, as I find that the basis of his criminal liability is of an inherently different kind to that, for instance, even exampled in Burton, which did not involve any colour of honest belief, the situation, as I have found it, calls for an exceptional approach.”

16. Thirdly, in his remarks on 19 November 2020, when the sentence was ultimately imposed, his Honour said:

“The report was not predicated upon any specified assumption as to the basis of this offender’s criminal liability. Whether in fact it resided with actual knowledge, with recklessness, or as I have found, an honest belief upon no reasonable grounds. It is the case that there is no evidence that the offender is insightful as to the impact of his act upon his victim. That is distinct from his thoughts about the outcome of his conduct, arising as it did, from his excessive consumption of alcohol.

In that regard, I am satisfied that it is more probable than not, that he is regretful and to a limited extent, insightful as to the risk that it created and in fact manifested in the offending. He is also conscious of the effect of his offending upon his family. It must be said, unsurprisingly, the offender’s attitude to the offending is consistent both with the general stance that he took at trial, the jury verdict of guilty, and, with the basis of criminal liability that I have found proven beyond reasonable doubt.”

17. It was not the Crown’s submission that it was impermissible to have any regard to self-induced intoxication, but rather that his Honour erroneously crossed the “fine line”, referred to in Director of Public Prosecutions (NSW) v Burton (“Burton”),[5] between “[having] regard to the offender’s state of intoxication to explain what was otherwise inexplicable conduct, which may [be] permissible”, and “accepting the explanation as an excuse, in the sense of a mitigating factor”. It is therefore necessary to consider first, to what extent any use of self-induced intoxication remains permissible in sentencing; and secondly, how in fact his Honour used the applicant’s self-induced intoxication and whether it crossed that line.

    5. [2020] NSWCCA 54 at [27] (Basten JA; Rothman J and Cavanagh J agreeing) (“Burton”).

18. Crimes Act, s 428D(a), provides that except in the case of an offence of specific intent, which an offence under s 61I is not (by s 428B), the self-induced intoxication of an accused person cannot be taken into account “in determining whether the accused has the requisite mental element for the offence”. [6] Section 428D is concerned with whether the requisite mens rea for criminal liability is established; it is not concerned with nor relevant to sentencing.

    6. Day v R [2017] NSWCCA 192 at [34] (Johnson J; Rothman J and Lonergan J agreeing), and the cases there cited.

19. At the time of the commission of count 1, s 61HA relevantly provided: [7]

    7. See now s 61HE.

61HA Consent in relation to sexual assault offences

(1)    Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.

(2)    Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3)    Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a)    the person knows that the other person does not consent to the sexual intercourse, or

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

(c)    the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d)    including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e)    not including any self-induced intoxication of the person.

(4)    Negation of consent A person does not consent to sexual intercourse:

…

(b)    if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

…

(5)    A person who consents to sexual intercourse with another person:

(a)    under a mistaken belief as to the identity of the other person, or

…

does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

20. The effect of the then s 61HA(3) was that, in determining whether the applicant knew that the complainant was not consenting, or was reckless as to whether she consented, or had no reasonable grounds for believing that she had consented, the jury (or judge in a judge-alone trial) was to treat him as if he were sober. [8] However, s 61HA(3)(e) did not require that he be sentenced on that basis, as it was directed only to the tribunal of fact deciding guilt, and not to a sentencing judge. In BP v The Queen (“BP”),[9] Johnson J, after referring to the second reading speech – which mentions only juries and judges acting in the absence of juries [10] – accepted that intoxication remained potentially relevant on sentence:

“[54] In this Court, there was some discussion as to whether the phrase “trier of fact” in s.61HA(3) extends to a sentencing Judge. Section 61HA is directed to the issue of consent for offences under ss.61I, 61J and 61JA Crimes Act 1900 only. Both the content and the context of the provision suggest that it is confined to the issue of consent at trial. It is noteworthy that the second reading speech of the Attorney General for the Crimes Amendment (Consent - Sexual Assault Offences) Bill 2007, with respect to proposed s.61HA(3), states that the subsection “further provides that the trier of fact - that is, a jury or a judge disposing of a matter without a jury - must have regard to all the circumstances of the case …” (Hansard, Legislative Council, 7 November 2007). The trier of fact must not have regard to any self-induced intoxication of the accused person for the purpose of determining whether that person had knowledge of the complainant’s lack of consent: s.61HA(3)(e).

[55] Although the issue is excluded in this way at trial, the intoxication of an offender may be relevant on sentence: R v Coleman (1990) 47 A Crim R 306 at 327; Stanford v R [2007] NSWCCA 73 at [52]-[55]. Certainly, there is nothing in the Crimes Act 1900 or the Crimes (Sentencing Procedure) Act 1999, nor any common law principle, which would exclude intoxication being taken into account on sentence in assessing the moral culpability of a s.61I offender. Of course, how it may be taken into account will depend upon the circumstances of the case and the impact of intoxication upon the offender’s degree of deliberation and whether it contributes to an offender acting out of character: R v Duncan and Perre [2004] NSWCCA 431 at [203]; Stanford v R at [55]. Alcohol is not a licence to commit crime: R v Duncan and Perre at [203].

…

[79] The Applicant’s intoxication may serve to explain how his judgment was affected, to some extent, to act in this way. However, this is a not uncommon scenario for sexual assault offences and it can provide limited assistance only to an offender on sentence. This is especially so where the Applicant ought to have been acutely aware, from his prior offences and subsequent sex-offender counselling, of the boundaries set by the law concerning sexual activity with others. Further, the facts as found by the sentencing Judge reveal significant force being used by the Applicant upon the victim both to take her to a secluded spot where the sexual assault could take place and in keeping her quiet whilst that process was undertaken.”

8. Day v R [2017] NSWCCA 192 at [36] (Johnson J; Rothman J and Lonergan J agreeing).

9. (2010) 201 A Crim R 379 at 392 [54]-[55], 397 [79] (Johnson J); [2010] NSWCCA 159.

10. New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007, 3584-3587.

21. Hodgson JA and Rothman J did not disagree with Johnson J in this respect. Accordingly, s 61HA(3)(e) does not, of itself, preclude consideration of self-induced intoxication by a sentencing judge: it is directed only to the trier of fact in the trial.

22. However, BP was decided prior to the (NSW) Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, which introduced s 21A(5AA) into the (NSW) Crimes (Sentencing Procedure) Act 1999 (“Sentencing Procedure Act”), limiting the manner in which self-induced intoxication can be used in sentencing, by providing that it cannot be relied on as a mitigating factor. Subsection (5AA) must be viewed in the context of the section as a whole which, in its amended form, is as follows:

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b) the offence involved the actual or threatened use of violence,

(c) the offence involved the actual or threatened use of a weapon,

(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e) the offence was committed in company,

(ea) the offence was committed in the presence of a child under 18 years of age,

(eb) the offence was committed in the home of the victim or any other person,

(f) the offence involved gratuitous cruelty,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i) the offence was committed without regard for public safety,

(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib) the offence involved a grave risk of death to another person or persons,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity,

(o) the offence was committed for financial gain,

(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

23. For the reasons explained above, the constraint on the use of self-induced intoxication in sentencing derives solely from s 21A(5AA), and not from s 61HA(3) nor s 428D(a).

24. In R v Alcazar, [11] Schmidt J, with whom Hoeben CJ at CL and Wilson J agreed, explained that self-induced intoxication did not reduce moral culpability:

“[126] In so far as his Honour’s observations were, as was submitted for Mr Alcazar, a response to the arguments the parties had advanced as to the significance of his intoxication, a matter on appeal argued to be relevant to the assessment of his moral culpability for his offending, his Honour fell into error. The disinhibiting effects of drugs and alcohol may explain the context in which his offences occurred, but they did not ameliorate or excuse that offending, or reduce his moral culpability for what he did.”

11. [2017] NSWCCA 51 at [126] (Schmidt J; Hoeben CJ at CL and Wilson J agreeing).

25. In Tepania v R,[12] Johnson J, with whom Payne JA and Simpson AJA agreed, said that sub-s (5AA) meant that it was no longer permissible for a sentencing court to have regard to intoxication for the purpose of determining the degree of deliberation involved in an offender’s breach, but acknowledged that intoxication might be explanatory, or (albeit rarely) supportive of, a submission that conduct was out of character:

    12. (2018) 275 A Crim R 233 at 260 [124]-[127] (Johnson J; Payne JA and Simpson AJA agreeing); [2018] NSWCCA 247.

“[124] Although it was a contributing factor to the offence, the Applicant’s self-induced intoxication was a factor excluded from operating as a mitigating factor by s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

[125] In the second reading speech concerning the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 which introduced s.21A(5AA), the then Premier, Mr O’Farrell, said (Hansard, Legislative Assembly, 30 January 2014):

“To make it clear that drugs and alcohol are not an excuse for violent behaviour, voluntary intoxication by drugs or alcohol will be removed as a mitigating factor when courts determine sentences in future. This change reflects the view that the choice to become intoxicated should not lead to reduced culpability. Self-induced intoxication is no excuse for violence.”

[126] In R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120, this Court said at 59 [220]:

“The Respondent’s intoxication did not assist him at all on sentence. Of course, the Respondent was sentenced before the commencement of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 on 31 January 2014. That section now excludes by statute self-induced intoxication being taken into account as a mitigating factor on sentence. However, the law at the time when the Respondent was sentenced was to a similar effect. Although an offender’s intoxication, whether by alcohol or drugs, could explain an offence, it ordinarily did not mitigate the penalty: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [26]. Courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender’s culpability. Although an ‘out of character’ exception has been acknowledged to exist, it has almost never been applied: R v GWM at [82]; ZZ v R [2013] NSWCCA 83 at [110]. The Respondent could not have called in aid the ‘out of character’ exception. In truth, the Respondent’s awareness of his aggression issues, in the context of alcohol use, meant that his intoxication was capable of operating adversely to him on sentence.”

[127] To the extent that the law prior to enactment of s.21A(5AA) permitted a sentencing court to have regard to intoxication for the purpose of determining the degree of deliberation involved in an offender’s breach of the law (R v Coleman (1990) 47 A Crim R 306 at 327), s.21A(5AA) now operates to prevent self-induced intoxication operating as a mitigating factor because of its impact upon the degree of deliberation of an offender. The enactment of s.21A(5AA) meant that the Applicant’s self-induced intoxication could not assist him on sentence.”

26. In Burton, Basten JA, with whom Rothman J and Cavanagh J agreed, appears to have accepted that while self-induced intoxication could not be relied on as a mitigating factor, it might be relied on to explain otherwise inexplicable conduct: [13]

    13. Burton at [24]-[28] (Basten JA; Rothman J and Cavanagh J agreeing).

“[24] The judge then considered the personal circumstances of the offender, in the course of which she addressed a submission by the prosecutor that “there was a wickedness in the way the offender exploited [the victim] and that the nature of the relationship between [them] makes his moral culpability high.” The judge rejected that submission, as she was entitled to do; it was not suggested otherwise on appeal. However, she continued with the following passage, which gave rise to the conceded error:

“The evidence reveals that the offender was very intoxicated when he committed the current offence. While his intoxication in no way excuses the serious offence he committed upon his niece, I have no doubt at all that it acted to lower his inhibitions and clouded his judgment and thinking, and explains why a man in his 60s who was otherwise a good man who had never behaved in a sexually inappropriate way to any other person made the grave error of judgment he did. In my view, this factor reduces his moral culpability to a not insignificant extent.”

[25] This statement, and particularly the last sentence, was said to contain error.

[26] Section 21A of the Sentencing Procedure Act sets out aggravating, mitigating and other factors to be taken into account in sentencing. There was no doubt that there were a number of mitigating factors which the judge was entitled to take into account, including the fact that the offender had no previous convictions, was a person of good character, was unlikely to reoffend, had good prospects of rehabilitation and had shown significant remorse. However, s 21A also includes the following provisions:

21A Aggravating, mitigating and other factors in sentencing

...

(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

[27] These provisions have been in effect since January 2014 and it is most unlikely that the judge did not have them in mind. Indeed, the second sentence of the passage set out above noting that “his intoxication in no way excuses the serious offence” suggests that she may have done. Indeed, s 21A(5AA) was expressly referred to by counsel for the offender in written submissions on sentence and in the course of oral submissions. If, as counsel had submitted, the judge was entitled to have regard to the offender’s state of intoxication to explain what was otherwise inexplicable conduct, that may have been permissible; however, there was a fine line between that and accepting the explanation as an excuse, in the sense of a mitigating factor. It must be accepted that the judge overstepped that line. Further, it is clear that the finding was material to the outcome. The judge expressly addressed the terms of s 5(1) of the Sentencing Procedure Act, which require that a court “must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.” In that respect, the judge stated:

“In my view there are compelling and exceptional circumstances present in this sentencing exercise warranting a finding that the s 5 threshold has not been met. These factors include the offender’s clouded judgment at the time of the offence and the effect that had upon his moral culpabilities, the findings I made regarding objective gravity, the findings I made regarding the offence being an aberration on an otherwise good life. While I recognise that powerful subjective circumstances cannot lead to the imposition of an inadequate sentence, I am firmly of the view that a term of imprisonment is not required in this case and would in fact be detrimental for this offender’s ongoing rehabilitation and therefore counterproductive.”

[28] Although it was one of several factors, it is clear that the “clouded judgment”, which was the consequence of self-induced intoxication, was relied upon as having reduced his moral culpability. It therefore constituted a material error, which was capable of affecting the determination that a non-custodial sentence should be imposed.”

27. The principle that underlies sub-s (5AA) is that self-induced intoxication does not of itself reduce the culpability of the offender, and its intent is that a sentencing judge must not take into account as a mitigating factor the (mere) fact that the offender was intoxicated, and the effects of that intoxication on the offender’s deliberation, if the intoxication was self-induced. That is not the same thing as saying that an offender is to be sentenced on the (false) assumption that he or she was sober. In the context in which it appears, it is clear that sub-s (5AA) does not preclude any reference to self-induced intoxication; for example, it clearly does not preclude its used as an aggravating factor (as it has been suggested, at least potentially, to be in some cases[14] ). Nor, in my view, does it prevent its use to negate the existence of an aggravating factor. Subsection (5AA) does not mean that intoxication is irrelevant if it informs some other mitigating factor, such as that the offence was not part of a planned criminal activity. Nor does it preclude its use to reason that the conduct was out of character, explaining why a person of otherwise good character might have engaged in it.

    14. See, for example, R v Loveridge (2014) 243 A Crim R 31 at 59 [220] (Bathurst CJ, Johnson and R A Hulme JJ); [2014] NSWCCA 120.

28. The first reference to intoxication in the sentencing remarks, as set out above, was in response to the Crown’s submission that the applicant had engaged in a deliberate deception of the complainant. His Honour reasoned that in deciding whether it was established that the applicant had deliberately deceived the complainant, it was relevant to consider his intoxication “in terms of explanation, as to how the offender might have truthfully believed, upon a totally unreasonable basis, that consent from this unknown form in the bed was forthcoming, and may have been mistaken …”. Recognising that it could not be treated as mitigatory, his Honour found that it was nonetheless relevant “to consideration of whether there was any deliberate deception”.

29. In my view, that was an entirely permissible use of the applicant’s intoxication – not to mitigate his culpability, but to contribute to the conclusion that he had not practised a deliberate deception on the complainant, and thus to negate what the Crown had submitted was an aggravating factor.

30. The second reference to intoxication, as set out above, was no more than an affirmation that the judge was not treating intoxication as a mitigating factor. His Honour was stating simply that, notwithstanding that he was satisfied that the applicant would not have offended but for his intoxication, that entitled him to no mitigation.

31. The third reference to intoxication appears in the context of discussion of the extent to which the applicant had insight: the judge observed that there was no evidence that he was insightful as to the impact of his act upon his victim, which was to be distinguished from his insight, limited as it was, that his excessive consumption of alcohol had created a situation of risk. That does not involve any use of intoxication as a mitigating factor.

32. The judge, of great experience in the criminal law, twice explicitly stated that he did not treat intoxication as a mitigating factor. This Court should not disbelieve the judge’s explicit statements. Moreover, close analysis of the manner in which his Honour used intoxication confirms that it was not used as a mitigating factor; it was used to negate the suggested aggravating factor of deliberate deception, and to explain the basis on which he had been convicted. His Honour did not use it to reduce moral culpability, which is how the judge in Burton had fallen into error.

33. Accordingly, in my judgment, there was no error in the manner in which his Honour had regard to the applicant’s self-induced intoxication. I would reject ground 1.

Ground 2: alleged manifest inadequacy

34. To sustain a claim of manifest inadequacy, the Crown is required to establish that the sentence imposed was unreasonable or plainly unjust, in an environment where there is no single correct sentence, and where sentencing judges are to be allowed as much flexibility as is consonant with the application of proper principle and consistency of approach. [15] Where specific error has not been identified, a claim of manifest inadequacy is a conclusion which does not depend on the establishment of specific error, although identification of specific error may assist to explain why a sentence is manifestly inadequate. [16]

    15. R v Chandler (2019) 101 NSWLR 208 at 218 [47] (Hoeben CJ at CL; Brereton JA and Cavanagh J agreeing); [2019] NSWCCA 250, citing Dinsdale v The Queen (2000) 202 CLR 321 at 325-326 [6] (Gleeson CJ and Hayne J); [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25; Hili v The Queen (2010) 242 CLR 520 at 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J agreeing); [2010] HCA 45.

    16. Dinsdale v The Queen (2000) 202 CLR 321 at 325-326 [6] (Gleeson CJ and Hayne J); [2000] HCA 54; R v Harris (2015) 70 MVR 412 at 424 [46] (Adamson J; Basten JA and R A Hulme J agreeing); [2015] NSWCCA 81.

35. In considering whether a sentence is manifestly inadequate, this Court is not permitted to review the sentencing judge’s factual findings or assessment of objective seriousness, unless error has been shown. [17] As Simpson J (as her Honour then was) said in Mulato v R:[18]

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King[1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

17. AB v R [2014] NSWCCA 339 at [44], [50], [59] (Simpson J; Meagher JA and Wilson J agreeing).

18. [2006] NSWCCA 282 at [46] (Simpson J).

36. As I would reject ground 1, and as there was no challenge otherwise to the sentencing judge’s factual findings, the adequacy of the sentence is to be tested on the basis of his Honour’s findings of fact and evaluation of objective seriousness.

37. In any event, I see no error in his Honour’s conclusion that objectively the offending “is certainly towards the lower, if not at the lowest end of an offence pursuant to the offence provisions. However, an act of opportunistic sexual offending by an offender honestly believing, upon an unreasonable foundation, that there is consent must retain a reflective level of seriousness and condemnation.” The range of conduct embraced by s 61I – in short, sexual intercourse without consent – is inherently serious. To say that conduct is at the lower end of that range does not trivialise it, but places it towards the lower end of a spectrum of serious criminal conduct.

38. The applicant was, of course, to be sentenced only for the offence for which he was convicted (the oral intercourse), and not for that for which he was not (the penile/vaginal intercourse). This is not without significance, because while the whole course of events was undoubtedly traumatic for the complainant, as explained in her victim impact statement and referred to in the judgment of Adamson J,[19] it is also clear that her trauma was associated predominantly with the penile/vaginal intercourse, which must be disregarded for sentencing purposes. Here, the relevant physical element was an act of non-violent and non-penetrative oral intercourse that continued for a period of only about three minutes. As such, it was very much towards the lower end of the range encompassed by s 61I.

    19. Below at [207].

39. As to the mental element, the judge found that the applicant honestly but entirely unreasonably believed that the complainant had consented. Accepting as I do that it was not erroneous for his Honour to have regard to the applicant’s intoxication in making that finding, no error in that conclusion has been demonstrated. Moreover, that conclusion provides the most satisfactory explanation of the jury’s verdict. Absence of reasonable grounds for believing that there was consent is the least serious of the three potential bases of liability, and, as his Honour said, “is of an inherently different kind to that, for instance, even exampled in Burton, which did not involve any colour of honest belief”.

40. In that context, even if there were a challenge to the judge’s assessment of objective seriousness, I would be quite unable to accept the Crown submission that, in the context of the serious conduct embraced by s 61I, this offence – an act of non-violent, non-penetrative oral intercourse for three minutes, by an offender who believed albeit entirely unreasonably that the complainant had consented, is “just below mid-range”. Although the facts that the complainant was asleep, and that the applicant took no steps at all to ascertain whether she had consented, and the aggravating circumstance that the offence was committed in someone’s home (though not the victim’s), preclude a finding that it was at the lower end of the range, it fell closer to it than to the mid-range.

41. Subjectively, the applicant had no record of previous contact with the criminal justice system of any kind; he was a person of good character; he was unlikely to re-offend; and he had good prospects of rehabilitation. After referring to evidence adduced of his good character, his Honour said (emphasis added):

“In relation to that evidence, a mere absence of a criminal record will, in the ordinary course, entitle a defendant to have a beneficial finding of good character. However, over and above that, greater weight may be afforded that finding where there is positive evidence affirming, rather than a mere absence of prior criminal offending, indicative of an individual of good character; that a particular offender has a reservoir of support in the community arising from sustained acts of real worth to other members of that community.

The present offender’s case supports such a finding. The offender’s prior good character and absence of any indication of sexually predatory disposition are significant factors. He has substantial ties and responsibilities in the community. There are no antisocial indicators in his background.

I uphold the submissions made and supported by evidence that this offending is entirely out of character. I find his prospects of rehabilitation are particularly strong. Given the basis in the state of mind which I have found on the contested hearing on sentence, I find, as a consequence, that his likelihood of reoffending is very low indeed.”

42. In the later remarks on November 2020, his Honour referred to the applicant’s “proven and not merely assumed, prior good character”, and continued:

“The offender’s level of support in the community, the commitment of his partner, his attachment to her and his children, a history of secure employment and willingness to cooperate with any conditions that may be imposed, support a finding that his prospects of rehabilitation are good. The offender has been assessed as a person who is suitable as a candidate for the imposition of orders whereby he may remain in the community, but also advance his rehabilitation.”

43. I do not agree that the applicant’s subjective case was “unremarkable”; to the contrary, there were powerful subjective factors in his favour, notwithstanding the absence of remorse.

44. It remains the fact that the applicant, a guest in a house which was not his, entered a bedroom which was not his, found in the bed which was not his a girl he did not know and with whom he had had no previous contact, who was asleep, and presumed to embark on an act of oral intercourse with her, without taking any step whatsoever to ascertain whether she consented. The applicant’s conduct was more than, as his Honour put it, “boorish and inconsiderate in the extreme”, and “careless”; it was presumptuous and contemptuous of the complainant’s personal rights, bodily integrity, and dignity, and calls for denunciation and general deterrence. Ordinarily, it would bespeak an exploitative attitude to women which is repugnant; however, that must be viewed in the light of his Honour’s finding that what the applicant did was “entirely out of character”.

45. His Honour concluded:

“… there is an inherent level of seriousness nonetheless, attaching to any offence, whereby an offender has violated the personal integrity of another, by a sexual act as to which there was no consent. That remains so, whatever the state of mind of the offender. I accept that not inconsiderable harm, particularly in terms of humiliation and an inherent violation of her person was done to the victim.

So much is clear in the victim impact statement that I have received and considered. That statement must be acknowledged in terms of real harm having been done. Addressing the harm that has been done is one of the purposes of sentencing to be addressed, as is inherent in the Common Law and specified in s 3A of the Crimes (Sentencing Procedure) Act. The question is as to what level of punishment, in a loss of liberty or in other civil disability and a mark of denunciation in a conviction, is proportionate to the particular offending, taking into account any relevant matters also personal to the offender.

Upon consideration of all the matters that I have reviewed at some length on the 21st of August, I have found that this matter remains one of a wholly exceptional kind. As previously indicated, my consideration of s 5 of the Act, is that the threshold has not been passed, whereby no sentence other than one of imprisonment, will meet the purposes of sentencing in the instant case. I have come to that conclusion notwithstanding that the offender exercised his right to trial and that as a consequence, no utility was thereby provided as would have been the case had he pleaded guilty.

But, nonetheless, I have concluded that the purposes of sentencing for the offence, as I assess it and committed upon the basis of the criminal culpability identified, will be satisfied by the imposition of the following orders. Those orders do entail a level of punishment, which I regard as proportionate to the crime committed.”

46. As the sentencing judge observed, the options were limited: as an Intensive Correction Order is unavailable for an offence under s 61I due to Sentencing Procedure Act, s 67(1)(b), full-time imprisonment was the only available option if it were found that the threshold in s 5 of that Act had been crossed.

47. In careful and comprehensive remarks on sentence, by a judge of great experience in the criminal law, no mistake of fact or law nor any failure to advert to a relevant consideration or taking into account of an irrelevant one has been identified. Although such circumstances do not preclude a conclusion that a sentence is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders, just as the identification of specific error may assist to explain why a sentence is manifestly inadequate, a conclusion of manifest inadequacy is not lightly to be drawn in the absence of identifiable specific error.

48. Nonetheless, I confess that my instinctive reaction was that a full-time custodial sentence was required. Many might have imposed one, and would not have erred in doing so. However, that is not the test, which is whether the sentence was open in the context of the generous ambit of a sentencing judge’s discretion. In that respect, established patterns of sentencing provide a more reliable guide than an individual judge’s instinctive response.

49. The Crown submitted that of 109 cases that went to trial included on the pre-reform sentencing statistics (covering the period January 2008 to 23 September 2018), the only offender to receive a non-custodial sentence was a juvenile, with the vast majority receiving full-time custodial sentences. However, there were suspended sentences in six cases. While technically a suspended sentence was regarded as a custodial sentence, in effect it involved no full-time period of custody if the conditions were not breached.

50. Of the 47 cases that went to trial since the commencement of the sentencing reforms (covering the period 24 September 2018 to June 2019), in a context where a suspended sentence was no longer an available option, only the applicant and one other did not receive a full-time custodial sentence. The other case was Nguyen v R (“Nguyen”), [20] in which the offender, who was 19 years old at the time of the offence and 22 when sentenced, was convicted after trial of one count under s 61I for a ‘brief’ act of digital-vaginal penetration, after a house party in which the intoxicated complainant had gone to bed, after the offender had assisted her to the bathroom to vomit, before the offender entered the bedroom and committed the offence. He was sentenced on the basis that he had an unreasonable belief as to consent. He had prior good character, the offence was unplanned, he was unlikely to reoffend, it was not expected that the community needed to be protected from him, and he was a good candidate for rehabilitation. Although the charge was disputed at trial, he had expressed remorse to the victim. He was sentenced to a three year Community Corrections Order. His appeal against conviction was dismissed on 3 May 2021; in respect of the sentence this Court merely observed that “[u]nsurprisingly, there is no application for leave to appeal [by the offender] against the non-custodial sentence imposed.”[21] There was no Crown appeal.

    20. [2021] NSWCCA 85.

    21. Nguyen v R [2021] NSWCCA 85 at [6] (Wilson J; Bathurst CJ and Beech-Jones J agreeing).

51. Another relevant case – not included in the statistics referred to because it was a plea of guilty – is Burton, in which the offender, who was 61 years old at the time of the offence, was the uncle of the victim, then barely 18. The offence was committed following the wedding of the offender’s son: after the reception, the offender, who was intoxicated, took the victim, who had resisted her mother’s urging to leave and was clearly heavily intoxicated, to the hotel room reserved for himself and his wife, placed her on the bed, and kissed the lips of her vagina. The offender made immediate admissions the following day, and pleaded guilty. The sentencing judge rejected the prosecutor’s submission that the offence was the culmination of a planned and predatory attack, and summarised the offending in the following terms: [22]

“The act of sexual intercourse committed by this offender was an act of cunnilingus, more specifically kissing the lips of his niece’s vagina for between approximately 10 to 15 seconds.

The conduct was of very short duration and appropriately described as being momentary and I am satisfied that in kissing [her] vagina, the offender used his lips and mouth rather than his tongue.

I am satisfied the offence was impulsive, spontaneous and opportunistic. I am further satisfied the offender did not take his niece to his hotel room intending to sexually or indecently assault her but rather the intention he formed to commit cunnilingus upon his niece was formed there and then and at the very time he committed that act.”

22. Burton at [22] (Basten JA; Rothman J and Cavanagh J agreeing).

52. The sentence imposed was a community correction order for a period of three years. A Crown appeal was dismissed, pursuant to the residual discretion, although it was held that the sentencing judge had erred by taking into account, as a mitigating factor, the offender’s self-induced intoxication. Although the sentence was described as lenient, it was not held to be manifestly inadequate. Basten JA said (emphasis added): [23]

“It was appropriate for the trial judge to have regard to the psychological effects of the offending conduct, and the shame and destruction of his family life which followed, as factors warranting some amelioration of the usual sentencing practice with respect to such offences. It was open to the Court not to impose a sentence of custodial imprisonment which would otherwise be justified by the objective circumstances of the offending. Although the judge approached the sentencing exercise on a legally erroneous basis, for the reasons noted above this is not a case in which the Court should intervene to resentence.”

23. Burton at [45] (Basten JA; Rothman J and Cavanagh J agreeing).

53. Rothman J agreed with Basten JA and added (emphasis added): [24]

“[61] As to the leniency, I consider that the Sentence imposed is lenient. Whether or not the Respondent was in a position of trust, the Sentence is lenient. But it is not, given the subjective circumstances pertaining to the Respondent, outside the pattern of sentences that has hitherto applied. If this were an appropriate vehicle, I would comment on the leniency of that pattern of sentences.

[62] It is not an appropriate vehicle for such a discussion. Moreover, even if it were, and I were minded to increase the severity of the sentences that should, ordinarily, be imposed, I would not impose that new pattern on the current Respondent. I agree, as a practice, with the implied admonition in the dissenting judgment of Bell J in Munda v The State of Western Australia [26] that any newly determined pattern or guideline should not readily be imposed on a respondent in the appeal that sets it.”

24. Burton at [61]-[62] (Rothman J; Cavanagh J agreeing).

54. Cavanagh J agreed with Basten JA and Rothman J, adding (emphasis added): [25]

“I would only add that I too do not consider that this is a case in which the Court should exercise its residual discretion to intervene. I also adopt the observations of their Honours in respect of the leniency of the sentence. However, in view of the sentencing regime and, in particular, the personal circumstances of the respondent the sentence was open to the sentencing judge.”

25. Burton at [65] (Cavanagh J).

55. Thus this Court was of the view that the non-custodial sentence was one which was open to the sentencing judge.

56. If, as his Honour accepted in a finding which is not challenged by the Crown, the applicant’s state of mind was that of honest but unreasonable belief, that involved a lesser degree of criminality than the recklessness found in Burton. While there are differences, perhaps most notably the plea of guilty, it is difficult to reconcile the Court’s view that it was open to the judge in Burton to impose a non-custodial sentence, with a conclusion in this case that the sentence is manifestly inadequate.

57. The sentencing patterns undoubtedly show that in the vast majority of cases under s 61I, at least where there is a plea of not guilty, a custodial sentence is imposed. However, they do not show that a sentence involving full-time custody is always called for. That ‘vast majority’ of cases is largely comprised of cases in which the offending was objectively more serious than that in Burton and Nguyen, which show that for a spontaneous unplanned non-penetrative and non-violent act of oral intercourse of short duration by an offender who (unreasonably) believes that there is consent and is of good character, unlikely to reoffend, and has good prospects for rehabilitation, a non-custodial sentence is not foreclosed.

58. The sentence was, no doubt, a lenient – and merciful – one. However, that was a result of the assessment of the offending conduct as being towards the lower end of the relevant range, based on both its physical and mental elements, and in addition the strong positive findings made in respect of the applicant subjectively, not least that the offending was entirely out of character, by a man who had never previously offended and was never likely to do so again. I am unpersuaded that the sentence was so manifestly inadequate that it is “plainly unjust” and thereby likely to undermine public confidence in the proper administration of criminal justice.

Residual discretion

59. Even if I were to have concluded that no sentence other than one involving fulltime custody was open, I would not in the circumstances of this case exercise the residual discretion to intervene. It seems to me that to hold that a non-custodial sentence was manifestly inadequate would involve departing from the acceptance by this Court, in Burton, that in not dissimilar circumstances, such a sentence was open. If so, that would involve establishing “a newly determined pattern”, which, as Rothman J observed in Burton,[26] ought not readily be imposed in the case in which that pattern is set,

    26. At [62] (Rothman J; Cavanagh J agreeing), referring to “the implied admonition in the dissenting judgment of Bell J in Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 that any newly determined pattern or guideline should not readily be imposed on a respondent in the appeal that sets it”.

Resentencing

60. As I would not intervene with the sentence, no occasion to resentence arises. It suffices to say that, as I have indicated, a custodial sentence would not have been erroneous. However, in my view, a just custodial sentence would not have exceeded a non-parole period of two years, and a balance term of one year, resulting in a head sentence of three years imprisonment.

ORDERS

61. I would make the following orders:

On the application for leave to appeal against conviction:

1. Grant leave to the applicant to appeal against his conviction.

2. Dismiss the appeal.

On the Crown appeal against sentence:

3. Dismiss the appeal.

62. FULLERTON J: I have had the advantage of reading the judgments of Brereton JA and Adamson J circulated in draft.

The appeal against conviction

63. I note that at [3] of the judgment of Brereton JA, his Honour agreed with Adamson J that the conviction appeal should be dismissed and with her Honour’s reasons for so finding. I also agree that the appeal against conviction should be dismissed, and with her Honour’s reasons for so finding. I also agree with the orders proposed by Adamson J in the disposition of the appeal against conviction.

The Crown appeal against sentence

64. I agree with Adamson J that the sentence appeal brought by the Crown pursuant to s 5D(1) of the Criminal Appeal Act should be allowed; that the sentence imposed in the District Court on 19 November 2020 be set aside; and that in lieu thereof the respondent be sentenced to a term of imprisonment of 5 years commencing on 7 May 2021 with a non-parole period of 3 years’ imprisonment.

65. In light of the disagreement between their Honours both as to whether the Crown had established a discrete error in the sentencing judge’s treatment of the respondent’s intoxication for sentencing purposes, and the separate question whether the Community Corrections Order for a period of 3 years imposed by the sentencing judge was manifestly inadequate, I prefer to express my own reasons for agreeing with Adamson J that the Crown sentence appeal should be allowed and with the consequential orders her Honour proposes.

Was the sentencing judge’s treatment of the respondent’s intoxication contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act?

66. Section 21A of the Crimes (Sentencing Procedure) Act relevantly provides:

(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

67. Since the passage of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 which introduced s 21A(5AA), this Court has had occasion to consider the limited circumstances in which intoxication might continue to be relevant in the exercise of the sentencing discretion.

68. Some of those decisions were discussed by Brereton JA (see his Honour’s judgment at [24]-[26]).

69. The settled principle that emerges from those decisions requires emphasis and, in my view, some elaboration.

70. In the sentencing court’s assessment of an offender’s moral culpability for the offending conduct - a feature of the objective seriousness of the conduct which is fundamental to the sentencing process - the statutory prohibition in s 21A(5AA) on the offender’s self-induced intoxication being taken into account in mitigation is engaged.

71. R v Alcazar [2017] NSWCCA 51, Tepania v R [2018] NSWCCA 247 and Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (the three cases to which Brereton JA referred) are authority for the proposition that while a sentencing court is entitled to refer to an offender’s intoxication as providing an explanation for the context in which offending occurred, it is not open to the Court to take the next step of ameliorating or reducing an offender’s culpability for the offending because of the effects of alcohol or other intoxicants, irrespective of whether those effects are disinhibiting or whether they operated to compromise an offender’s judgment or his or her assessment of the surrounding circumstances.

72. In Burton, Basten JA (Rothman and Cavanagh JJ agreeing at [27]) observed that while it may be permissible for a sentencing judge to have regard to an offender’s state of intoxication to explain what was otherwise inexplicable conduct, a judge must not overstep the fine line between making that observation in the course of sentencing remarks, where appropriate, and treating that explanation as a mitigating factor. The Court was satisfied that the sentencing judge had erroneously treated the offender’s clouded judgment because of his self-induced intoxication as reducing his moral culpability for what was described as an impulsive, opportunistic and momentary “kissing” of the vagina of a teenage relative at the wedding of the offender’s son after she was escorted by the offender to a hotel room reserved for him and his wife because the teenager was intoxicated.

73. As noted by Brereton JA at [28]-[31], the sentencing judge in this case referred to the respondent’s state of intoxication as informing a range of factual findings for sentencing purposes, none of which, in Brereton JA’s opinion, breached the statutory prohibition in s 21A(5AA). I respectfully disagree. I agree with Adamson J where at [225] of her Honour’s judgment she found that when assessing the objective seriousness of the respondent’s offending the sentencing judge breached the statutory prohibition in s 21A(5AA) by placing significant weight on the respondent’s intoxication, in particular by permitting that fact to inform his finding (favourable to the respondent) that he honestly, but unreasonably, believed the complainant was consenting to oral intercourse, as distinct from his being reckless as to that fact.

74. While I am not of the view, substantially for the reasons given by Brereton JA at [18]-[23], that the sentencing judge was obliged to determine that question as if the respondent were sober at the time that he had sexual intercourse with the complainant without her consent, I am of the view that he was obliged to disregard the respondent’s intoxication entirely when enquiring into the respondent’s state of mind, awareness or perception at the time of the offending, where that enquiry was undertaken for the purposes of assessing the objective seriousness of his offending.

75. To my mind, it is clear that factual finding, together with the further finding, also favourable to the respondent, that he would not have offended “but for” his intoxication and its impact upon his assessment of the situation, underpinned the sentencing judge’s assessment of the objective seriousness of his offending at the lower, if not at the lowest end of an offence against s 61I of the Crimes Act and that in doing so he has committed a sentencing error.

76. I agree with Adamson J that it is not to the point that the sentencing judge made repeated reference to intoxication not operating as a factor in mitigation. Neither is it to my mind a matter of significance that the sentencing judge was not inexperienced. The question for this Court is whether, as a matter of substance, not form, the sentencing error contended for by the Crown has been demonstrated.

77. I agree with Adamson J that a material sentencing error has been demonstrated, the effect of which allows this Court to review the sentencing judge’s factual findings, including his assessment of objective seriousness and the related assessment of the respondent’s moral culpability, before considering whether, in the Court’s residual discretion, it should intervene.

78. I agree with Adamson J, and substantially for the reasons her Honour has identified at [238]-[242], that the objective seriousness of the offending was just below the mid-range. In agreeing with that assessment, I make the following additional observations.

79. Whilst I agree with Brereton JA at [38] that the respondent was to be sentenced by the sentencing judge (and will be sentenced by this Court) only for the offence which attracted a verdict of guilty, I cannot agree with the views his Honour expressed in the balance of that paragraph.

80. In my view, there is nothing in the Victim Impact Statement which would allow for a finding that the complainant’s trauma and the associated sequalae which she describes in excruciating detail “was associated predominantly with the penile/vaginal intercourse”. To the contrary. The complainant described her feeling of profound violation referable to the “night of the assault” or “the event” in a way that did not differentiate between the act of oral intercourse and the act of penile/vaginal intercourse, neither of which she consented to.

81. Neither is it correct, in my view, to position the objective seriousness of the act of oral intercourse “towards the lower end of the range of offences encompassed by s 61I” because, as Brereton JA described it in [38], “the relevant physical element was an act of non-violent and non-penetrative oral intercourse that continued for a period of only about three minutes”.

224. There are two main aspects to sentencing. First, the sentencing judge is obliged to find the facts of what occurred in a manner which is consistent with the jury’s verdict: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [4]-[10] and [14] (Gleeson CJ, Gummow and Hayne JJ, citing with approval, R v Isaacs (1997) 41 NSWLR 374 at 377-378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). As the plurality explained at [10] in Cheung, “a guilty verdict may leave unresolved large questions as to the degree of culpability.” These questions “fall to be decided by the sentencing judge, who may receive little assistance from the need for consistency with the jury’s verdict.”

225. Secondly, the sentencing judge is obliged to weigh up the relevant factors to determine, by instinctive synthesis, the appropriate sentence.

226. The statutory provisions referred to above make it clear that the effect of the applicant’s self-induced intoxication must be excluded as a mitigating factor on sentence (s 21A(5AA) of the Act).

227. I reject Mr Bellanto’s submission that his Honour’s statement that he had not taken the applicant’s self-induced intoxication into account in mitigation was effective to cure the error of using it to “explain” the applicant’s conduct. This Court is obliged to assess the substance of what his Honour did and is not bound by the form of the judgment. Although the sentencing judge said that he had not taken the applicant’s self-induced intoxication into account, it is plain that his Honour took it into account (favourably to the applicant) by way of “explanation” for his conduct, which not only led to his Honour’s rejection of the Crown case that the applicant had deliberately deceived the complainant but also led to the finding that the applicant honestly, but unreasonably, believed that the complainant was consenting.

228. It is not necessary to decide whether the trial judge becomes “the trier of fact” within the meaning of s 61HA(3)(e) of the Crimes Act for the purposes of sentencing, since s 21A(5AA) of the Act prohibits reasoning which takes into account self-induced intoxication in mitigation in the sentencing exercise.

229. Mr Bellanto’s submission that self-induced intoxication made no difference because if there were no reasonable grounds for an intoxicated applicant to believe that the complainant had consented, there could have been no reasonable grounds for the applicant, had he been sober, to have believed that she consented, must also be rejected. The fact of intoxication led his Honour to make a finding in accordance with the least serious of the three alternatives as to his state of mind when committing count 1.

230. The effect of the error, as the Crown contended orally, was to impugn the sentencing discretion (which, accordingly, must be re-exercised by this Court in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 if this Court decides not to exercise the residual discretion to decline to intervene). The error also affected the facts as found by his Honour as well as the assessment of objective seriousness which was predicated on those facts. This Court is not permitted to review the sentencing judge’s factual findings or assessment of objective seriousness unless error has been shown (AB v R [2014] NSWCCA 339 at [44], [50], [59] (Simpson J, Meagher JA and Wilson J agreeing). The Crown has, in the present case, identified an error which requires this Court to review the sentencing judge’s assessment of the facts and the objective seriousness on the correct basis: cf. Mulato v R [2006] NSWCCA 282 at [46] (Simpson J). These matters will be addressed below.

231. For the reasons given above, I am satisfied that ground 1 has been made out.

232. This Court will generally refuse to intervene in a Crown appeal unless it is satisfied that the sentence is manifestly inadequate. In these circumstances, it is necessary to address ground 2.

Ground 2: alleged manifest inadequacy

235. For the reasons given above, the factual findings made by his Honour, and the consequential assessment of objective seriousness, were erroneous. It is, accordingly, necessary for this Court to revisit these findings and this assessment since, otherwise, the adequacy of the sentence imposed by the sentencing judge would be tested on a flawed basis.

236. In the present case, the applicant gave sworn evidence at trial but did not give evidence at the sentence hearing. The account he gave at trial, as to proof of the third (disputed) element of count 1, must have been rejected by the jury as not reasonably possible. It follows that the jury must have accepted the complainant’s evidence as the circumstances in which she consented to oral intercourse namely that she mistakenly believed that the man performing oral intercourse was Ryan, a person well known to her as a sexual partner and in whose bed she was sleeping. Thus, the applicant’s version that the complainant initiated the sexual contact must, in the circumstances, be rejected as a lie. The applicant’s evidence at trial was, relevantly, false, on count 1 and can therefore be disregarded, except in so far as it constitutes a statement against interest and, therefore, an admission.

237. Like his Honour, this Court is obliged to have regard to all the circumstances that inform the sentencing exercise, except, the applicant’s self-induced intoxication. The applicant is, as this Court explained in Day v R, to be treated as if he were sober.

238. The complainant’s evidence was that she was asleep when someone came into the room and removed her jumpsuit. She was still sleepy when the person pulled her legs apart and she did not resist because she thought the person was Ryan. I am satisfied from the evidence that the applicant knew that the complainant was asleep at the outset and, throughout the oral intercourse, at best, half-awake. Consent in s 61HA(2) was defined as meaning free and voluntary agreement to sexual intercourse. The applicant took no steps whatsoever to ascertain whether the complainant freely and voluntarily agreed to the intercourse. He did not speak to her or rouse her. The only physical contact between them was directed to his aim of having intercourse with her. When the applicant investigated the state of the complainant’s genitals, he discovered that they were insufficiently moist to permit penile/vaginal intercourse. He spat on her genitals to lubricate them and performed oral intercourse to further moisten them for that purpose.

239. The present case is not one where the applicant’s evidence as to the physical facts aligned with the complainant’s and the issue was what was in his mind as to her attitude to consent to sexual intercourse. It is a case where the applicant’s version was in stark contrast with the complainant’s since, on his version, it was the complainant who had initiated the sexual contact. The applicant’s version was entirely self-serving and included evidence that, after he had been to the toilet following the two forms of sexual intercourse with the complainant, he had returned to the bedroom to enquire as to the complainant’s welfare. Unlike his Honour, I do not accept this evidence. I regard it as yet another self-serving statement made by the applicant which was designed to minimise his moral culpability. Any uncertainty expressed by the complainant in her evidence about the identity of those men who came to the door and tried to get in does not make it more likely that it was the applicant who came in rather than one of the other men who had been sent by Ryan to check on her after she had messaged him for help.

240. It is also significant that the applicant expressly denied that he had had intercourse with the applicant at all, when asked directly by Ryan shortly after the event. I am satisfied that he denied the intercourse by reason of a consciousness of guilt because he actually knew that the complainant had not consented. At the time of this (false) denial the applicant was well aware of the following five matters: first, the complainant was asleep when he entered the bedroom and when he undressed her; second, at no time had he asked her whether she was willing to have sex with him; third, he had deliberately sought to physically keep his distance from the complainant during intercourse lest she realise that he was not Ryan; fourth, neither before nor during sexual intercourse, did she give any indication that she knew who he was; and, fifth, that he had performed oral intercourse without her consent.

241. Although it is possible that the applicant actively waited until Ryan had left with Tim and the others to collect further alcohol to bring back to the party before he went into the room to have intercourse with the complainant, I do not consider that the evidence is sufficiently strong to make this finding. Applying the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, I consider that the applicant came into the bedroom, not knowing that he would find the complainant sleeping there. When he discovered that she was there, he decided to exploit her vulnerability. She was asleep and there was, at least from the applicant’s point of view, a possibility that she would be affected by alcohol. He knew that she did not voluntarily and freely agree to oral intercourse because, at the outset, she was asleep and he had taken no steps to ascertain whether she consented.

242. These findings affect the objective seriousness of count 1. To initiate sexual intercourse with a stranger who is asleep is a particularly serious violation. The complainant, who was unconscious, having fallen asleep, fully clothed, in a bed with the permission of its owner, was particularly vulnerable. I accept the Crown’s submission that the objective seriousness of count 1 is just below mid-range. Although there were no threats of violence, there did not need to be because the complainant, being unconscious at the outset, was in no position to resist or defend herself. The oral intercourse was particularly exploitative since its evident purpose was to prepare the complainant’s body for the penile/vaginal intercourse which the applicant wanted.

243. Whether the sentence imposed is inadequate does not require the demonstration of patent error since inadequacy, like excess, is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). The sentence imposed by his Honour required the applicant to do little more than perform service in the community where he was otherwise at liberty. The Crown relied on statistics which demonstrated the rarity of non-custodial sentences being imposed for such an offence.

244. Having regard to the seriousness of count 1 and the lack of mitigating factors or countervailing subjective circumstances, I am satisfied that the imposition of a CCO in the present case was manifestly inadequate. The circumstances in which the offence was committed, the gross violation of the complainant’s body which it entailed and the lack of mitigating factors required that a custodial sentence be imposed to reflect the objective seriousness of the offence and to fulfil the sentencing purposes of denunciation, punishment and specific and general deterrence. The sentence imposed by his Honour was, in my view, plainly unjust and unreasonable (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

The notice of contention

245. The applicant relied on a notice of contention (although none was filed) in which he contended that the sentencing judge erred in applying a test of “exceptional” or “wholly exceptional” circumstances as the only basis for a non-custodial sentence for an offence of sexual assault simpliciter. I am not persuaded that it is necessary to address this contention. For the reasons given above, his Honour’s error as to the relevance of self-induced intoxication vitiated not only the sentencing discretion but also the fact-finding exercise which is required of a sentencing judge. It is not necessary, in these circumstances to address any other statements made by his Honour since, if the residual discretion ought not be exercised, this Court would be obliged to sentence the applicant afresh.

The residual discretion

246. Before relief can be granted in this Court for established error, the Crown must also satisfy this Court that the residual discretion to decline to intervene ought not be exercised in the present case: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ).

247. The applicant relied on the following four factors in support of his submission that the residual discretion not to intervene ought be exercised:

1. the applicant was sentenced on 19 November 2020 and has commenced community service pursuant to the order made by the sentencing judge;

2. he has been subjected to “dread linked to the prospect of entering full-time custody” after having been found guilty and sentenced to a non-custodial sentence;

3. the matters relied on in support of groufnd 2 are, in substance, matters of weight and therefore do not warrant appellate intervention; and

4. “a newly determined pattern” ought not readily be imposed on the applicant: Burton at [62] (Rothman J).

248. It was not suggested on behalf of the applicant (the respondent to the Crown appeal) that there was any unavoidable delay. The applicant was notified that the Crown would be considering an appeal before the sentence was imposed (the possibility of a CCO having been evident from his Honour’s order for a report for the purpose of determining the applicant’s suitability for community service). The sentence was imposed on 19 November 2020. The notice of appeal was filed and served 4 weeks after the final proceedings and the appeal was listed for hearing less than 3 months from the date of the notice and heard together with the applicant’s application for leave to appeal against conviction.

249. At the sentence hearing, the Crown submitted that a full-time custodial sentence was required and that a CCO would be inappropriate and not within range. Accordingly, the Crown did not contribute in any way to the sentence that was imposed. Indeed, the Crown tried to dissuade his Honour from imposing such a sentence.

250. I accept that the applicant has been subjected to the possibility that he will be taken into custody. That remained a possibility following his sentence. The Crown notified him of the prospect of an appeal before the non-custodial sentence was imposed.

251. For the reasons given above, I accept the Crown’s submission that the sentence imposed was so manifestly inadequate that it fell far short of community standards as well as being inconsistent with the need for denunciation of sexual assault and general deterrence. I reject the applicant’s submission that the matters relied on in ground 2 are matters of weight.

252. I do not accept Mr Bellanto’s submission that any new pattern or guideline has been established by the present case. For an offence under s 61I of the Crimes Act, the maximum penalty has been 14 years’ imprisonment and the standard non-parole period has been 7 years’ imprisonment for a considerable period. The provisions making self-induced intoxication irrelevant to the state of mind of an accused in relation to consent and unavailable in mitigation of sentence, likewise, are of long-standing (for example, s 21A(5AA) was inserted into the Act by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)). The sentence sought to be challenged in the present case is aberrant because of its manifest inadequacy. This conclusion does not reflect any particular change in community standards.

253. I am persuaded by the Crown that the residual discretion to decline to intervene ought not be exercised in the present case and that this Court ought allow the appeal and proceed to re-sentence the applicant.

254. Since writing these reasons I have read the reasons of Brereton JA in draft. The significant difference between my views and those of his Honour are apparent from our respective reasons.

Re-sentence

255. The sentence imposed must reflect the purposes of sentencing in s 3A of the Act. Denunciation, punishment and specific deterrence are all of importance. General deterrence is also highly significant in a case such as the present. The sentence imposed must indicate to the community at large the seriousness of sexual assault on a sleeping woman who is a stranger to her assailant. Excessive use of alcohol by a sexual offender will not mitigate the objective seriousness of non-consensual sexual intercourse against a vulnerable complainant. The consequences for the complainant were devastating and enduring. Further, even where an offender can otherwise claim good character to support the associated submission that he is unlikely to reoffend, a penalty of full-time custody, after trial, will ordinarily be imposed to reflect the gravity of the offending, having regard to the standard non-parole of 7 years’ imprisonment and the maximum penalty of 14 years’ imprisonment.

256. The offence was aggravated because it was committed in Ryan’s home (s 21A(2)(eb) of the Act). It is necessary, when assessing the harm, to excise any harm consequent upon the events that were the subject of count 2. However, with due allowance for that matter, I am satisfied that the emotional harm suffered by the complainant as a consequence of count 1 was “substantial” for the purposes of s 21A(2)(g) of the Act. Prior to the offending conduct, the complainant was pursuing her chosen career of nursing in a way which gave her a sense of purpose and satisfaction. As a result of the offending conduct, she ultimately left nursing. Prior to the offending, the complainant enjoyed coming home to the Hills District to see her parents. As a consequence of the offending, the complainant suffered whenever she went home because of the association between the area where her parents live and the offending conduct. She experiences significant suicidal thoughts and, at times, has seen suicide as the only way of finding “peace”.

257. While the applicant was entitled to maintain his innocence, and this cannot be an aggravating factor, he showed neither remorse nor contrition. He denied the intercourse when questioned by Ryan. But for the DNA testing which identified him as the person who had had intercourse with the complainant, he may well have not been charged.

258. The offender is entitled to have his good character and lack of prior criminal history taken into account in his favour. He is not entitled to leniency on the ground of youth as he was 22 years old at the time of the offending. He had been in a permanent relationship for several years and already had one child, and his partner was expecting a second. He is now 25 years old. He and his partner now have three children. Mr Bellanto informed the Court that he had completed 50 hours and 20 minutes of community service pursuant to the CCO made by his Honour on 19 November 2020.

259. Although Mr Bellanto referred to the applicant’s personal circumstances, there was no evidence as to how the applicant’s family would support themselves if the applicant were taken into custody and therefore no evidence of particular hardship (beyond the hardship which one would infer).

260. As this will be the first time the applicant is in custody, I consider that it is appropriate to find special circumstances and adjust the statutory ratio between the non-parole period and the total term accordingly.

261. I propose the following orders:

Fisher v R

1. Grant leave to the applicant to appeal against his conviction.

2. Dismiss the appeal.

R v Fisher

3. Allow the appeal.

4. Set aside the sentence imposed by Craigie SC DCJ on 19 November 2020 and, in lieu thereof, sentence the respondent, Matthew Fisher, to a term of imprisonment of 5 years commencing on 7 May 2021 and expiring on 6 May 2026 with a non-parole period of 3 years’ imprisonment and a balance of term of 2 years.

3. The first day on which the respondent will be eligible for release to parole will be 6 May 2024.

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Endnotes

Decision last updated: 07 May 2021