James (a pseudonym) v The Queen

The applicant, referred to as James, sought permission to appeal against a sentence imposed by a sentencing judge. The dispute concerned whether the sentence was manifestly excessive and whether the sentencing judge had erred in their factual findings when determining the sentence. The matter was before the appellate court for consideration of the application for permission to appeal.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had made an error of fact in their approach to sentencing, particularly concerning the applicant's belief about the nature of a sexual encounter that preceded the offending. The applicant contended that her evidence regarding the sexual encounter, which she described as non-consensual rape, should have been accepted. The respondent argued that the evidence did not support this view, pointing to the unchallenged evidence of the man involved and the lack of any record of a prior report of sexual assault.

The court considered the applicant's assertion that the sexual intercourse was not consensual. It noted that the man's evidence of a consensual encounter was unchallenged, and the applicant had not put to him that consent was lacking. Furthermore, a search of police records revealed no report of a sexual assault by the applicant concerning the man prior to November 2017, despite some messages suggesting rape. The court observed that the sentencing judge had not been asked to make a positive finding regarding the applicant's belief about the consensual nature of the encounter, especially given that the applicant's denials of her own offending had been rejected by the jury. While acknowledging that a belief in non-consent might have mitigated moral culpability, the court found that, even assuming this issue was material to sentence, the applicant's subjective belief did little to minimise the seriousness of her offending, given the protracted nature of the offending, the content of messages, and the efforts made to send them. The court concluded that it was not reasonably arguable that the sentence was manifestly excessive or that the sentencing judge had made an error of fact.

Consequently, the application for permission to appeal the sentence was dismissed. The court indicated that even if there had been an arguable error in failing to make a positive finding about the applicant's state of mind concerning the sexual encounter, it would not have imposed a different penalty on resentence.