Pender v R

[2023] NSWCCA 291

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pender v Rex [2023] NSWCCA 291

Hearing dates:

3 May 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Before:

Simpson AJA at [1];
Rothman J at [81];
Cavanagh J at [82]

Decision:

1. Leave to appeal against sentence granted;

2. Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – sexual assault – knowledge about absence of consent – self-induced intoxication – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA) – whether intoxication not self-induced due to asserted history of addiction – whether sentencing judge erred in finding that offender had actual knowledge, rather than an unreasonable belief, that the victim consented – whether sentence was manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW) ss 61HE, 61I

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA)

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125

Bourke v The Queen [2010] NSWCCA 22; 199 A Crim R 38

BP v The Queen [2010] NSWCCA 159

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

Day v R [2017] NSWCCA 192

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

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Fisher v R [2021] NSWCCA 91

Fisher v The Queen [2021] HCASL 250

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76

Kelly v R [2016] NSWCCA 246

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

McDowall v R [2019] NSWCCA 29

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

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

R v Eaton [2023] NSWCCA 125

R v Isaacs (1997) 41 NSWLR 374

Sharma v R [2017] NSWCCA 85

Shortland v R [2018] NSWCCA 34

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Category:

Principal judgment

Parties:

Ricky Wayne Pender (Applicant)
The Crown

Representation:

Counsel:
J Roy (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/104449

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

2 February 2022

Before:

Haesler SC DCJ

File Number(s):

2020/104449

HEADNOTE

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

The applicant was found guilty by a jury of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). By s 61HE of the Crimes Act, as then in force, an accused was taken to know that the victim did not consent to the relevant sexual activity if the accused knew that the victim did not consent, was reckless as to whether the victim consented, or had no reasonable grounds for believing that the victim consented. The applicant was sentenced to an aggregate term of imprisonment of 6 years, with a non-parole period of 3 years and 6 months.

The offences were committed while the applicant was intoxicated as a result of having used methylamphetamine. By s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), an offender’s “self-induced intoxication” at the time that an offence was committed is “not to be taken into account as a mitigating factor” on sentence. At least on one view, the sentencing judge considered that the applicant had a belief, albeit unreasonable, that the complainant consented to the sexual intercourse. However, applying s 21A(5AA), he sentenced the applicant on the basis that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse.

The applicant sought leave to appeal against his sentence, raising the following issues:

1. whether his intoxication was, in fact, self-induced, so as to engage s 21A(5AA), and, if so, whether the sentencing judge erred in his application of that provision;

2. whether the sentencing judge failed adequately to assess the objective seriousness of the offending; and

3. whether the sentencing judge gave inadequate weight to the applicant’s history of childhood deprivation and disadvantage, such that the sentence imposed was manifestly excessive.

The Court (Simpson AJA, Rothman and Cavanagh JJ agreeing) granting leave to appeal, dismissing the appeal, held:

As to issue 1 (relevance of self-induced intoxication)

1. The applicant’s intoxication was “self-induced”, notwithstanding the connection between his drug use and the significant adversities that he had faced in his early life. Accordingly, s 21A(5AA) of the Sentencing Procedure Act applied: [56]-[62].

Bourke v The Queen [2010] NSWCCA 22; 199 A Crim R 38; Kelly v R [2016] NSWCCA 246, considered.

2. The construction given to s 21A(5AA) by a majority of this Court in Fisher v R [2021] NSWCCA 91 stands as the construction of the Court. That construction was not plainly wrong and, accordingly, should be followed. The sentencing judge correctly applied s 21A(5AA), so construed: [31]-[54].

Fisher v R [2021] NSWCCA 91, followed.

3. It is not necessarily the case that offences committed on the basis of an honest, but unreasonably based and drug-induced, belief that a victim consented is less objectively serious than identical offences committed with actual knowledge that a victim did not consent: [36], [55].

As to issue 2 (objective seriousness)

4. A sentencing judge is required to identify the facts, matters and circumstances that bear upon the selection of the appropriate sentence. The sentencing judge did so. It was not material that he did not rank the objective seriousness of the offences on a notional scale: [63]-[68].

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Sharma v R [2017] NSWCCA 85; McDowall v R [2019] NSWCCA 29; Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125; R v Eaton [2023] NSWCCA 125, applied.

As to issue 3 (manifest excess)

5. The sentence was neither manifestly excessive nor arrived at in disregard of the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37: [69]-[78].

JUDGMENT

1. SIMPSON AJA: On 15 November 2021 the applicant was arraigned in the District Court in Wollongong on an indictment that charged him with two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). On 19 November the jury returned a verdict of guilty on each count. An offence against s 61I is subject to a maximum penalty of imprisonment for 14 years. By Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) a standard non-parole period of 7 years is prescribed.

2. On 2 February 2022, pursuant to s 53A of the Sentencing Procedure Act, the applicant was sentenced to an aggregate term of imprisonment of 6 years, commencing on 14 October 2020, with a non-parole period of 3 years and 6 months which will expire on 13 April 2024. Pursuant to s 53A(2)(b), the sentencing judge indicated that, if sentencing separately for the two offences, he would have imposed, respectively, sentences of imprisonment for 5 years with a non-parole period of 3 years, and 5 years and 6 months with a non-parole period of 3 years and 3 months.

3. The applicant seeks leave to appeal against the sentence imposed. He has not sought to appeal against the convictions.

The trial

4. The transcript of the trial is not before this Court. In sentencing the applicant, the sentencing judge summarised, substantially from the evidence of the complainant, the circumstances of the offending, as follows.

5. Both offences were committed on the same evening, in the complainant’s home, on 9 February 2020. The applicant and the complainant were members of the local Aboriginal community in a town on the south coast of NSW. They knew each other, but not well. Both were users of methylamphetamine (“ice”). On the evening of 9 February 2020 the complainant was at home alone, her children having left to spend some time with their father. The applicant sent a text message to the complainant to tell her that he had some ice available. It was agreed that he would bring the drug to the complainant’s home. On arrival the applicant made himself at home. He used the complainant’s computer and her telephone. He had a shower. He entered her bedroom. He remained in the premises for many hours. The complainant was uncomfortable with the applicant’s presence in her home and made that clear to him. In the applicant’s presence the complainant attempted to contact friends and relatives to have them come to the house. The applicant made sexual advances to the complainant which she rejected. He told her to relax and then pulled down her pants, kissed her leg, and engaged in a short act of oral intercourse (Count 1 on the indictment), followed by penile/vaginal intercourse, during the course of which he ejaculated on her leg (Count 2 on the indictment). The complainant said in her evidence that she was afraid that if she fought against the applicant’s conduct she would get hurt and might have been injured or bleeding by the end of it. She made it clear to the applicant that she was not consenting to his sexual approaches. The complainant’s friend arrived and the applicant left the premises.

6. The applicant gave evidence in the trial. It is apparent that he acknowledged that sexual intercourse had taken place but maintained that it was consensual. It also appears that the applicant’s evidence was to the effect that, at the time of the events in question, he was intoxicated as a result of having used methylamphetamine.

7. By their verdicts it can be seen that the jury accepted the account given by the complainant and rejected the applicant’s claim that the sexual intercourse was consensual.

Proceedings on sentence

8. For sentencing purposes a further hearing took place, in which the applicant again gave evidence, and evidence concerning his personal circumstances was given.

9. Also before the sentencing judge was a Victim Impact Statement in which the complainant recounted the effect on her of the offences. In short, she said that she had only recently moved with her children into the home in which she was living where she was providing for her children a safe and stable environment. From the time of the offences she felt that her “safe home” was no longer safe. She became extremely fearful and hypervigilant and eventually moved to live with her mother. The sentencing judge accepted the contents of the Victim Impact Statement.

The applicant’s personal circumstances

10. Before the sentencing judge for the purpose of sentencing were a Sentence Assessment Report and a comprehensive report of a psychologist, Ms Kris North, who assessed the applicant via audio visual link in January 2022. As the applicant was then contemplating an appeal against the convictions, Ms North did not explore the circumstances of the offences.

11. From all of this evidence the following emerges. The applicant was born in January 1978. He was 42 years of age at the time he committed these offences. He has a lengthy criminal history which includes property offences and offences of violence, but does not include any offences of a sexual nature. The sentencing judge observed that the applicant had been in and out of prison since 1998 and since 2018 almost continuously incarcerated. He was most recently released from prison on 21 February 2019 and observed the conditions of his parole until it expired in August of that year. On 14 January 2020 he was arrested and charged with other offences, in respect of which he was granted bail on 31 January. It was less than two weeks later that he committed the present offences. (It may here be noted that the applicant was subsequently sentenced, on 18 June 2020, to imprisonment for 2 years and 6 months, commencing on 27 January 2020, with a non-parole period of 1 year and 3 months, which expired on 26 April 2021 in respect of an offence of driving a motor vehicle while his licence was suspended, various break and enter offences, and breach of his bail conditions. Thereafter the applicant remained in custody, it may be inferred pending the outcome of the present charges).

12. Ms North took a detailed history concerning the applicant’s background. As she summarised it, the applicant had a “socially impoverished” family background that included early exposure to substance abuse, domestic violence and family neglect. At the age of ten he was sexually assaulted by two older boys in the presence of his cousin, who did nothing to help him. Although his family were told of this event (including the identities of the perpetrators) they took no action. The applicant felt abandoned by his family and resorted to alcohol and drugs to repress the memory of the assaults and his feeling of abandonment. His alcohol consumption began at the age of five and was such that, by the age of sixteen, he was diagnosed with pancreatitis and warned that, unless he ceased alcohol use, he would not see the age of eighteen. He took the advice but began sniffing petrol and using amphetamines as a substitute before reverting to alcohol use, which was accompanied by attacks of pancreatitis. He explained his use of alcohol as assisting him to forget his history of trauma, his feeling of abandonment and rejection, and the sexual assault. He had twice attended residential rehabilitation facilities and had intermittently engaged in substance abuse counselling.

13. Ms North assessed the applicant as satisfying the criteria for Stimulant Use Disorder (in sustained remission) and Alcohol Use Disorder (also in sustained remission in a controlled environment).

14. The applicant has had several long or medium term relationships, and is the father of seven children, with some of whom he is in contact.

15. In his evidence the applicant confirmed the account of his personal history taken by Ms North. He read a lengthy statement in which he gave, or repeated, much of the detail that he had given to Ms North. He said:

“The pain and suffering I’ve been and still go through every day from the drugs and alcohol abuse, from the mental and emotional strain I put myself through every day, but most of all from the sexual assault that destroyed me and any chance for me to have a normal happy life, I could never put that lifetime of pain and suffering onto another human being, especially a vulnerable woman.

Your Honour, I have always tried to live my life to be as honest as I possibly could in life in general, even when I have been at my worst with my drugs and alcohol addictions, and I have always told myself and believed to always tell the truth because the truth will always prevail over any situation I was in or may be facing and I have always taken full responsibility for my actions if ever I have broken the law or have done something wrong in my life and if I had committed these allegations I would have taken full responsibility straight away when I was first charged and had them dealt with back then.”

Sentencing after jury trial

16. Where an offender has been convicted of an offence after jury trial, the facts constituting the elements of the offence are conclusively established by the jury’s verdict. But there remain other facts, relevant to the sentence to be imposed, that are not established by the verdict. In such a case, it is the duty of the judge to determine the facts that are material to the exercise of the sentencing discretion. The primary constraints on the exercise of that duty are that the facts found must be consistent with the verdict of the jury and that any facts to be used adversely to the offender must be established beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 378B. The duty is not discharged by attempting to discern the basis on which the jury reached its verdict; the task of the judge is to find for himself or herself the facts material to sentencing: Isaacs at 380D.

17. In a case of an offence against s 61I of the Crimes Act, the facts that are established by the jury verdict are:

1. that the offender had sexual intercourse with the complainant;

2. that the complainant did not consent to the sexual intercourse; and

3. that the offender knew that the complainant did not consent to the sexual intercourse.

   18. At the time of the offences, s 61HE of the Crimes Act explained the meaning of consent in relation to certain sexual offences (including offences against s 61I). Relevantly, s 61HE provided:

   “(2)   Meaning of ‘consent’ A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

   (3)   Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, … knows that the alleged victim does not consent to the sexual activity if—

   (a)   the person knows that the alleged victim does not consent to the sexual activity, or

   (b)   the person is reckless as to whether the alleged victim consents to the sexual activity, or

   (c)   the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.

   (4)   For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case—

   (a)   including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but

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

(Section 61HE is no longer in force. For current relevant provisions see Pt 3, Div 10 of the Crimes Act).

19. Facts to be determined for sentencing purposes include facts going to the objective seriousness of the offence of which the offender has been convicted, and facts going to moral culpability. One relevant sentencing consideration with respect to offences against s 61I of the Crimes Act concerns the offender’s state of mind, or belief, as to the absence of consent by the complainant. While, at the point of sentencing, it is conclusively established, not only that the complainant did not consent, but also that the offender knew that the complainant did not consent, the basis on which the offender is held to have had that knowledge (see s 61HE(3)) is not so established. That is one of the matters for determination by the sentencing judge.

The Remarks on Sentence

20. Not unreasonably, the sentencing judge interpreted the applicant’s statement in the sentencing proceeding (see [15] above) as an assertion of his innocence of the offences of which he was convicted, notwithstanding the verdict of the jury. It is clear enough that the basis on which he claimed innocence was his contention that the sexual activity had been consensual. As he was obliged to do by the jury verdicts, the sentencing judge rejected the applicant’s claim that the sexual intercourse was consensual. His Honour began his sentencing remarks (“the Remarks”) by saying:

“2.   The offender gave evidence at his trial. The jury did not believe him. He still, as is his right, as expressed in his evidence today, believes he is innocent of the crime. He says, given his history, to which I will later refer, he could not have done what is alleged to another person. He is mistaken.

3.   As the jury found, he did sexually assault another person, a person who he knew vaguely. His assertions today must be rejected and given his heavy use of drugs, including methylamphetamine, at the time of the commission of this offence, I can only conclude that his drug use altered his sense of reality. …”

21. Consistently with the jury verdicts, his Honour accepted the version of events given by the complainant (which he briefly recounted) and rejected the applicant’s contrary version.

22. The sentencing judge noted the applicant’s criminal history and his relatively recent release from prison, his adherence to the conditions of his parole, his arrest in January 2020, and that the offences were committed while the applicant was on bail with respect to the driving offence.

23. His Honour noted that the commission of the offences while the applicant was at conditional liberty was an aggravating factor on sentence. He considered the question of totality and rejected a submission made on behalf of the applicant that the sentence should commence on 6 April 2020 (the date on which the applicant was charged with the present offences, although he was by then in custody in relation to the driving offence). His Honour determined that the sentence should commence on 14 October 2020, which allowed a period of 6 months’ concurrency with the previous sentence.

21. The sentencing judge noted and accepted the Victim Impact Statement. He then turned to the applicant’s personal circumstances, and accepted Ms North’s comprehensive report. Having briefly summarised the circumstances of the applicant’s disadvantaged upbringing his Honour said:

“34.   …I must take into account his history of deprivation as a child, lack of engagement with schools and the child sexual assault.

…

36   When matters of an offender’s moral culpability are raised, the offender’s background and the history must be taken into account in mitigation. Trauma suffered when a child frequently precedes the commission of crime and can result in an assessment that an offender’s moral culpability is reduced: Nasrullah v R [2021] NSWCCA 207. There are matters here which indicate that, in general, [the applicant’s] moral culpability must be less than that of a person who did not suffer the trauma, or the childhood deprivation detailed in the reports and the evidence before me. His early life was impacted and, in such cases, a causal connection between the crime and the factors that reduce moral culpability is not required.

37.   That principle stems from the recognition that in sentencing decisions social disadvantage, childhood deprivation, exposure to violence, alcohol abuse and trauma, including as a victim of crime, frequently precede the use and abuse of illicit drugs and alcohol and frequently precede the commission of crime. In such cases, it has been well said that an offender who has the start in life that the particular offender did cannot be held to have equal moral responsibility with one who had what might be termed a normal upbringing. … I will take all those matters into account in mitigation of sentence.”

His Honour then cited a number of authorities supporting the propositions he had stated, including Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. He paid particular attention to the effects of the sexual assault on the applicant when he was a child.

25. In this respect, his Honour said:

“43.   Synthesising all those matters, I take into account the matters raised in mitigation. They do operate to reduce the otherwise appropriate sentence, but what was done to the victim here cannot be excused. It involved the commission of two serious criminal offences. Any woman living with her children, who thankfully were away for the weekend, needs economic, social and physical security. The victim here lost all of that because of the commission of these offences. This crime had impacts beyond the physical. Her dignity must be vindicated. What was done to her by [the applicant] must be denounced and appropriate retribution extracted.”

26. With respect to the objective seriousness of the offences, his Honour made a series of findings. These were:

1. the offences were “not just an act for sexual gratification, they involved an exercise of coercive power and control over [the complainant]”;

2. the events occurred late at night in the complainant’s home, when she was vulnerable, and where the applicant remained for a lengthy period;

3. the applicant’s ingestion of methylamphetamine made his behaviour unpredictable;

4. the applicant did not use a condom;

5. the act of penile/vaginal penetration was the more serious offence because it took place over a more protracted period and carried with it risks of pregnancy and/or disease (hence the difference in the indicated sentence for the individual offences).

   27. The sentencing judge considered that there were reasons for a substantial departure from the standard non-parole period prescribed by Div 1A of Pt 3 of the Sentencing Procedure Act. In fact the aggregate non-parole period imposed was half of the prescribed standard non-parole period.

   28. His Honour rejected a submission made on behalf of the applicant that his knowledge that the complainant did not consent to the sexual intercourse was constituted by recklessness as distinct from actual knowledge and found, instead, that the applicant had actual knowledge of that fact. In reaching that conclusion he said:

   “11.   In making my assessment, I must, as the jury were directed, discount the fact he had been using methylamphetamine that day. Although alternatives were put to the victim in front of the jury, my understanding of the evidence and my review of that evidence today, is that she was clear and unequivocal. She did not want what was done to be done to her. She kept saying, ‘No’. She did not say, ‘Yes’. She told the jury … ‘I was too scared if I fought it that I would get hurt and I might have been injured or bleeding by the end of it.’ [The applicant’s] behaviour was not reckless. I find beyond reasonable doubt [that] he knew she was not consenting.”

   29. At a later point in the Remarks, his Honour said:

   “38.   I cannot accept [the applicant’s] assertions of innocence. I must also be cautious in accepting everything he said [about] his history, given the jury verdict and my finding of fact about the crime. It seems clear that his drug use has impeded his perception of events, particularly so at or about the time these offences occurred.”

(Notwithstanding that, his Honour accepted the applicant’s account of his background, and observed that he had used the period in custody to address his drug problems and his future).

The application for leave to appeal

30. The applicant has identified six proposed grounds of appeal, as follows:

“1.   The sentencing judge erred in his approach to fact finding with respect to the Applicant’s state of knowledge.

2. The sentencing judge erred in his application of s 21A(5AA) of the [Sentencing Procedure Act].

3.   The sentencing judge erred in finding the applicant knew the complainant was not consenting.

4.   The sentencing judge erred in relation to his assessment of objective seriousness of the offending, including by failing to make or give adequate reasons for his assessment.

5.   The sentencing judge failed to give adequate weight to the Applicant’s ‘Bugmy factors’.

6.   The sentence is otherwise manifestly excessive.”

Grounds 1-3: the applicant’s knowledge that the complainant did not consent to the sexual intercourse

31. Although grounds 1 and 2 are directed to the sentencing judge’s finding, at [11] of the Remarks, that the applicant knew (that is, had actual knowledge) that the complainant did not consent to the sexual intercourse, at the heart of all of grounds 1-3 is the use that may (or may not) be made, for sentencing purposes, of an offender’s self-induced intoxication.

32. Section 21A(5AA) of the Sentencing Procedure Act is explicit. That subsection provides:

“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.”

By subs (5B), subs (5AA) has effect despite any Act or rule of law to the contrary.

33. The applicant contends that the exclusion of self-induced intoxication for sentencing purposes is limited to this provision and is not to be extended to the determination, for the purposes of s 61HE(3) of the Crimes Act, of the basis of an offender’s knowledge of the absence of consent. The applicant further contends that, in [11] of the Remarks, the sentencing judge impermissibly excluded from his determination of that question the applicant’s self-induced intoxication.

34. As set out above, s 61HE(3) contemplated three bases on which an accused person may be found to “know” that the complainant did not consent:

1. that the accused person knows (that is, has actual knowledge) that the complainant does not consent;

2. that the accused person is reckless as to whether the complainant consents;

3. that the accused person has no reasonable ground for believing that the complainant consents (supposing that the accused person in fact has such a belief).

   35. It has been suggested that these three bases have been listed in s 61HE(3) in descending order of seriousness. In Fisher v R [2021] NSWCCA 91 (“Fisher”), Adamson J (as her Honour then was) at [23] described a finding that the offender honestly but unreasonably believed that the complainant consented to the sexual intercourse there in question was “a finding in accordance with the least serious of the three alternatives as to [the offender’s] state of mind”.

   36. While I would not entirely assent to the proposition that knowledge of the absence of consent constituted by an unreasonable belief that the complainant consented is necessarily less serious than knowledge constituted by recklessness, I do accept that, in many cases, an offence committed with actual knowledge of the absence of consent would ordinarily be regarded as objectively more serious, and more morally blameworthy, than an offence committed with knowledge constituted by recklessness or on an unreasonably based belief in consent.

   37. That is the nub of the applicant’s complaint under grounds 1-3: he contends that, having concluded in [11] of the Remarks, that the applicant had actual knowledge of the absence of consent, the sentencing judge sentenced the applicant more severely than he would have done had he proceeded on the basis that the applicant’s knowledge of the absence of consent was constituted by an unreasonable belief that the complainant consented.

   38. A further premise of the applicant’s argument is that the sentencing judge, in other parts of the Remarks, made it clear that he considered that the applicant held an unreasonably based belief that the complainant consented. Support for that proposition may be found in [3] and [38] of the Remarks. In [3], in rejecting the applicant’s statement made in the sentencing proceedings, his Honour concluded that the applicant’s drug use “altered his sense of reality”; in [38] he repeated that the applicant’s drug use “impeded his perception of events … at or about the time these offences occurred”.

   39. I accept that, for the purposes of the argument, the Remarks are open to the interpretation that the judge considered that the applicant did hold a belief (although unreasonably based) that the complainant consented to the sexual intercourse. That is in direct contrast to the finding at [11], in which his Honour clearly held that the applicant had actual knowledge that the complainant did not consent. Underlying grounds 1-3 is the contention that that conclusion influenced the sentence imposed, adversely to the applicant.

   40. The applicant’s contention is that the conclusion that he had actual knowledge was arrived at by a legally erroneous process. The error asserted lay in “discounting” the fact that the applicant had been using methylamphetamine prior to the offences. To repeat, his Honour said:

   “In making my assessment [as to the applicant’s knowledge] I must, as the jury were directed, discount the fact that he had been using methylamphetamine that day.”

That was a clear reference to s 61HE(4)(b).

41. Section 61HE(4) directed the “trier of fact” (ordinarily, the jury) in a case to which the section applied, in determining whether the accused person knew that the complainant did not consent, to have regard to all the circumstances of the case, but, in par (b), expressly excluded self-induced intoxication (of the accused person) from that exercise. Just how the trier of fact is to do that is not explained. In Day v R [2017] NSWCCA 192, at [41] Johnson J considered that the then equivalent of s 61HE(4)(b) (s 61HA(3)(e)) “required that the [accused person] be treated as being sober.” Whether that means imputing to the accused person knowledge that he would have had if not intoxicated, or something else, is not clear. The notion was not accepted by Brereton JA or Fullerton J in Fisher: see [27], [74] (although, in the case of Brereton JA, see also [20]).

42. In any event, the applicant’s contention was that s 61HE(4)(b) is irrelevant to a finding, in the sentencing exercise, of which of the three s 61HE(3) alternative categories of knowledge is established. That is because, on the applicant’s argument, the judge determining the facts for sentencing purposes is not “a trier of fact”. Section 61HE(3) and (4), on the applicant’s argument, were provisions directed to the proof of guilt, and subs (4) was exhausted when the “trier of fact” determined that the accused person knew that the complainant did not consent, or at least was not applicable to the judge’s fact finding exercise for the purposes of sentencing.

43. A very similar question divided this Court in Fisher. Mr Fisher was convicted in a jury trial of a single count of sexual intercourse without consent. The sentencing judge in that case expressly acknowledged that self-induced intoxication could not be taken into account as a mitigating factor, but considered it to be relevant to the determination of how Mr Fisher “might have truthfully believed, on a totally unreasonable basis”, that the complainant consented, and declared himself satisfied that Mr Fisher “would not have offended but for his intoxication and its impact upon his assessment of the situation.”

44. The Crown appealed against the sentence imposed, the first ground of appeal being that the sentencing judge erred in taking into account in mitigation Mr Fisher’s self-induced intoxication, contrary to s 21A(5AA) of the Sentencing Procedure Act.

45. It was on this issue that the Court divided. Brereton JA noted that the effect of the then s 61HA(3) (the forerunner of and relevantly identical to subss 61HE(3) and (4)) was that, in determining whether Mr Fisher knew that the complainant did not consent or was reckless as to whether she consented or had no reasonable grounds for believing that she had consented, the jury “was to treat him as if he were sober” (citing Day). His Honour added (at [20]):

“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.” (italics in original)

46. His Honour then referred to BP v The Queen [2010] NSWCCA 159 (which was decided before the introduction of s 21A(5AA) into the Sentencing Procedure Act), and said (at [21]):

“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.”

Finally, his Honour turned to s 21A(5AA) and said (at [27]-[29]):

“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 use as an aggravating factor … 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.

…

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.” (Italics in original)

47. Adamson and Fullerton JJ took a different view. At [225]-[229] Adamson J said:

“225.   It can be seen from the statutory provisions set out above [s 61HA of the Crimes Act and s 21A of the Sentencing Procedure Act] that self-induced intoxication cannot be taken into account either on the question of the applicant’s knowledge of whether the complainant consented or as a mitigating factor on sentence. It follows that the applicant’s self-induced intoxication could not be taken into account by the sentencing judge to explain his behaviour, where such explanation had the effect of minimising his moral culpability. In the present case, his Honour was careful to state that he had not taken the applicant’s self-induced intoxication into account as a mitigating factor on sentence. Nonetheless, his Honour had expressly taken it into account in determining, first, whether there was deliberate deception; and, secondly, whether the applicant actually knew that the complainant was not consenting (or whether he was reckless or honestly, but unreasonably, believed that she was consenting). For reasons given below, this approach was erroneous and undermines the sentencing judge’s findings of fact as well as his Honour’s assessment of objective seriousness.

…

229.   … 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.”

48. It was in this context that her Honour described an unreasonably based belief in consent as the least serious of the three s 61HA(3) (now s 61HE(3) and (4)) alternatives.

49. Fullerton J agreed with Adamson J in this respect. Her Honour said:

“73. … 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 findings (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 …, that the sentencing judge was obliged to determine that question as if the respondent was 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 inquiry 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.”

50. An application for special leave to appeal to the High Court was refused (on the papers) on the basis that the decision of this Court was correct: Fisher v The Queen [2021] HCASL 250. The proposed ground of appeal lay in the construction given by Fullerton and Adamson JJ to the construction of s 21A(5AA) of the Sentencing Procedure Act.

51. Although Fullerton and Adamson JJ took different views with respect to the proposition that, for sentencing purposes (and, it seems, the purposes of s 61HE(3) of the Crimes Act), an intoxicated offender is to be treated as if he were sober, their Honours were at one with respect to the present question, whether self-induced intoxication could be used in such a way as to have the effect of ameliorating the sentence to be imposed in a way other than direct mitigation of the sentence to be imposed. In particular, both Fullerton J and Adamson J concluded that self-induced intoxication cannot be used to inform an assessment of the offender’s “state of mind, awareness or perception at the time of the offending” (Fullerton J) or his “knowledge of whether the complainant consented” (Adamson J). It would be inappropriate to depart from that established position, especially in light of the refusal of the High Court of the application for special leave.

50. The construction given to s 21A(5AA) of the Sentencing Procedure Act by Fullerton and Adamson JJ stands as the construction of this Court, notwithstanding the contrary construction preferred by Brereton JA. The principles on which a court may depart from earlier decisions have been considered on a number of occasions including in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]; Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [261]-[301]; and Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72].

51. While it may be considered that a statutory construction that does not command unanimous support carries less weight than one that does command such support and, while I can see some merit in the alternative construction favoured by Brereton JA, nevertheless, this Court has determined that s 21A(5AA) of the Sentencing Procedure Act prohibits taking into account an offender’s self-induced intoxication in relation to facts of the offending that bear upon the objective seriousness of the offending, or the moral culpability of the offender, in such a way as to mitigate the sentence. I am not persuaded that the construction is wrong (and certainly not “plainly wrong”) and I would not therefore depart from it.

52. There was, accordingly no error in the approach taken by the sentencing judge, and these grounds should be rejected.

53. In any event, it is by no means clear to me that taking into account self-induced intoxication on the question of the basis on which the applicant was held to have known that the complainant did not consent would have produced a more lenient sentence. The applicant’s proposition, properly understood, assumes that his offences were to be treated as less objectively serious, and he as less morally culpable, because the offences were committed on the basis of an honest, but unreasonably based and drug-induced, belief that the complainant consented, rather than with actual knowledge that she did not consent. It is not apparent to me that that proposition is correct.

54. In supplementary submissions filed two days before the day on which the application was listed for hearing, the applicant’s submissions took a radical change of direction. It was submitted on the applicant’s behalf that subs (5AA) of s 21A of the Sentencing Procedure Act had no application because the applicant’s intoxication on the evening of the offences was not self-induced.

55. That submission was made on the basis of one line in the judgment of McLellan CJ at CL in Bourke v The Queen [2010] NSWCCA 22; 199 A Crim R 38. At [26] his Honour said:

“There was evidence before the sentencing judge which clearly indicated that it was probable that the applicant’s intake of alcohol was the most significant cause of the applicant’s behaviour. Intoxication, whether by alcohol or drugs may explain an offence but will ordinarily not mitigate the penalty save where the intoxication is the result of an addiction and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because they have committed an offence while intoxicated …” (Italics added)

58. That was expanded by Rothman J (with whom Hoeben CJ at CL and RA Hulme J agreed) in Kelly v R [2016] NSWCCA 246. At [47] Rothman J said:

“47.   Even before the introduction of that relatively new sub-section [s 21A(5AA)], intoxication by alcohol or drugs ordinarily did not mitigate the penalty to be imposed on a particular offender [citing Bourke].

48.   Nevertheless, as McLellan CJ at CL in Bourke said, that ordinary rule does not apply where the intoxication is the result of an addiction and the original addiction did not involve a free choice. His Honour’s comments were that offenders could not expect reductions in sentence merely on account of the offence being committed while the offender was intoxicated.”

59. In support of the proposition that his intoxication on the occasion of the present offences was not self-induced, the applicant pointed to the report of Ms North, setting out his history of substance abuse, and evidence given by the applicant in the sentence proceeding.

60. The proposition that the applicant’s intoxication at the time of the offences was not self-induced was not put to the sentencing judge. As a proposition, it calls for a considerable depth of examination not undertaken in the sentencing proceedings (because it was not raised as an issue). Not least of the questions that would arise is whether the applicant did indeed suffer an “addiction”. No such diagnosis was made by Ms North who (as set out above at [13]) diagnosed two “disorders”, both of them “moderate”.

61. I can, and do, accept that the applicant’s drug use was largely, if not entirely, a consequence of the significant adversities of his early life. That is something that is dealt with under ground 5. I do not accept, on the evidence, that the applicant’s intoxication on this occasion was not self-induced.

62. I do not depart from my earlier stated conclusion that grounds 1-3 fail.

Ground 4: objective seriousness

63. By ground 4 the applicant complains that the sentencing judge erred in his assessment of the objective seriousness of the offences, including by failing to give adequate reasons. The applicant submitted at sentencing that the objective seriousness of the offences was:

“well below the middle of the range but not at the lowest end of the range”.

64. I have set out above (at [26]) the findings made by the sentencing judge as to objective seriousness. His Honour did not directly address the applicant’s submission and did not, as judges frequently do, rank the objective seriousness of the offences on a scale. The failure to do so appears to be the basis of ground 4. Such a ranking is not an essential part of the sentencing exercise. What is required is identification of the facts, matters and circumstances that bear upon the selection of the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]; Sharma v R [2017] NSWCCA 85 at [63]; McDowall v R [2019] NSWCCA 29 at [35]-[36]; Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [11]-[12]; R v Eaton [2023] NSWCCA 125 at [57].

65. This his Honour did, in recounting the evidence of the complainant that he accepted, in rejecting the applicant’s claim that the complainant consented, and in finding that the offences “were not just an act for sexual gratification, they involved an exercise of coercive power and control over the victim”. A clear statement of the objective seriousness of the offences is to be seen in [43] of the Remarks, extracted above at [25]. The specific findings are itemised at [26].

66. In Bektasovski an identical complaint was made (and rejected) about what was alleged to be the failure of the sentencing judge (coincidentally, also Haesler SC DCJ). There, as in the present case, the sentencing judge recounted the facts of the offences, which he then described as “objectively serious offences”, which Beech-Jones CJ at CL, with the concurrence of Kirk JA and Yehia J, considered to be “informative” and a sufficient discharge of the obligation to make an assessment of the objective seriousness of the offending in question.

67. On behalf of the applicant it was submitted (without elaboration) that “the result in Bektasovski does not govern the outcome in this case”. In my opinion the approach taken in Bektasovski is a strong indication that this Court should again find that an adequate assessment of objective seriousness was made.

68. I would reject ground 4.

Grounds 5 and 6: “Bugmy factors”; manifest excess?

69. Grounds 5 and 6 are intertwined and were argued together. By ground 5 the applicant complained that the sentencing judge gave inadequate weight to “Bugmy factors” – a reference to his history of childhood deprivation and disadvantage, factors which are to be accorded “full weight” in recognition of their impact on the moral culpability of an offender: see Bugmy. By ground 6 the applicant complained that the sentence imposed was manifestly excessive, an assertion that will be made good if the sentence is shown to be “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

70. In written submissions the applicant made it clear that, while he asserted that the sentence “appears stern”, it was difficult to establish that it was unreasonable or plainly unjust, or outside the range of sentences legitimately available, particularly having regard to the circumstance that the offences were committed while he was on conditional liberty. To that I would add that he was given the benefit of 6 months’ concurrence with the previously imposed sentence, and that the offences were committed in the home of the complainant (by s 21A(2)(eb) of the Sentencing Procedure Act, an aggravating factor that was required to be taken into account).

71. The applicant’s argument, as I understood it, was that the severity of the sentence indicated that, although the sentencing judge adverted explicitly to both Bugmy principles and “Bugmy factors”, on analysis it could not be concluded that those factors were sufficiently brought into account.

72. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (a judgment delivered on the same day as that in Bugmy) the majority of the High Court (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ, Bell J dissenting) again acknowledged the need for sentencing judges to give appropriate weight to mitigating factors (such as the social and emotional disadvantage that can be seen in many Aboriginal communities) but also recognised that that needs to be balanced against due recognition of the harm done to the victims. Their Honours said:

“54.   … To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence…

55.   … A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim…

57.   … The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant’s offending.”

Munda was a case of domestic violence manslaughter, but I see no reason why the principles stated do not apply equally to sexual assault.

73. The applicant sought to establish that the sentence was at the outer end of the available range (or out of step with sentencing practices) by reference to sentencing statistics maintained and published by the Judicial Commission of NSW, and by reference to a number of decisions of this Court with respect to broadly comparable cases.

74. The sentencing statistics do not support the applicant’s proposition. They reveal that, between 24 September 2018 and 31 December 2022, of 108 cases of sexual intercourse without consent where the offender was sentenced after trial, 38% resulted in an aggregate sentence of 6 years or more, and 40.8% in an aggregate non-parole period of 3 years and 6 months or more. Where an offence against s 61I was the ‘principal offence’ (apparently defined as cases where the offender was sentenced for multiple offences, of which the offence against s 61I attracted the highest indicative penalty), the sentences were lower, but not significantly so. Statistics, however, as is well known, are, because of their lack of specificity with respect to detail, to be treated with caution. This is particularly so where, as here, the statistics include sentences imposed for (or in circumstances where an offender has committed) multiple offences, the details of which are not discernible from the statistics.

75. The sample of cases presented on behalf of the applicant was a little – but only a little – more persuasive. For example, in Shortland v R [2018] NSWCCA 34, the offender was sentenced for three offences of sexual intercourse without consent committed on a single occasion against the same victim. At first instance he was sentenced to three concurrent terms of imprisonment for 2 years, each of which was wholly suspended pursuant to s 12 of the Sentencing Procedure Act. After a Crown appeal the offender was sentenced to imprisonment for 2 years with a non-parole period of 1 year and 3 months. Some account was taken of the period during which he had been serving the suspended sentence before the Crown appeal was heard. The sentence also reflected a division of opinion among the judges constituting the Court. Shortland appears to be a sentence at the low end of the range of sentencing of offences against s 61I of the Crimes Act.

76. In Bektasovski the offender was convicted at trial of two counts of sexual intercourse without consent and a further count of indecent assault, all committed against the same victim on the same day. An appeal against an aggregate sentence of imprisonment for 5 years and 6 months with a non-parole period of 3 years and 4 months was dismissed. The only ground asserted was that the sentencing judge erred in failing to make any proper assessment of the objective seriousness of the offending. (As noted above that ground failed). Notably, no manifest excess ground was pleaded. The case may be distinguished from the present on, at least, the bases that Bektasovski was young (18 years of age at the time of the offence), had no prior convictions and a highly favourable subjective case.

77. Taking into account all of the sentencing factors to which the sentencing judge adverted, I am not persuaded either that the sentence was manifestly excessive or that it was arrived at in disregard of the application of the principles stated in Bugmy.

78. I would reject these grounds of appeal.

79. Although I would grant leave to appeal against sentence I would dismiss the appeal.

80. The orders I propose are:

1. Leave to appeal against sentence granted;

2. Appeal dismissed.

   81. ROTHMAN J: I have had the advantage of reading in draft the reasons of Simpson AJA.  I agree with those reasons and the orders proposed by her Honour.

   82. CAVANAGH J: I agree with Simpson AJA.

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Decision last updated: 24 November 2023