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R v Elsworth (No 3)

R v Elsworth (No 3)

Case [2021] NSWDC 555 15 October 2021

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District Court

New South Wales

Medium Neutral Citation: R v Elsworth (No 3) [2021] NSWDC 555
Hearing dates: 13 August 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial order. For orders see [124]

Catchwords:
CRIME – assault occasioning actual bodily harm – sexual intercourse without consent.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Cayhadi v R [2007] NSWCCA 1
Diaz v R [2018] NSWCCA 33
DPP (Cth) v Saadieh [2021] NSWSC 1186
DPP v Burton [2020] NSWCCA 54
Fisher v R; R v Fisher [2021] NSWCCA 91
Franklin v R [2013] NSWCCA 112
KAB v R [2015] NSWCCA 55
Kearsley v R [2017] NSWCCA 28
R v Daley [2010] NSWCCA 223
R v Hewitt [2020] NSWDC 566
R v King [2009] NSWCCA 117
R v Tuala [2015] NSWCCA 8
Simpson v R [2014] NSWCCA 23
The Queen v De Simoni (1981) 147 CLR 383
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Benjamin Scott Elsworth (Offender)
Representation: Counsel:
C Dodds (Crown)
H Dhanji/L C Hutchinson (Offender)

File Number(s): 2019/00338327
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.

Judgment

The offender is to be sentenced in respect to the following two counts on an Indictment:

Count 1 – On 20 October 2019, in Potts Point in the State of New South Wales, did assault EB, thereby occasioning actual bodily harm to her.

This offence was pursuant to s 59(1) of the Crimes Act 1900 and carried a maximum penalty of five years imprisonment. The offender entered a plea of Guilty to Count 1 on 16 March 2021 on the first day of his trial at the Sydney District Court.

Count 2 – On 20 October 2019, in Potts Point in the State of New South Wales, did have sexual intercourse with EB without her consent and knowing that EB was not consenting.

This offence was pursuant to s 61I of the Crimes Act 1900 and carried a maximum penalty of 14 years imprisonment with a standard non-parole period prescribed of 7 years imprisonment. The offender had pleaded Not Guilty and was found Guilty after trial of Count 2 on 12 April 2021.

The jury returned verdicts of Not Guilty on two other counts pursuant to s 61I of the Crimes Act 1900 (Counts 3 and 4).

The sentence hearing

The sentence hearing took place on 13 August 2021. It had previously been listed for sentence hearing on 10 June 2021 but was adjourned by consent of the parties to 13 August 2021.
The Crown Sentence Summary became Exhibit A on sentence. The offender had no criminal history and Exhibit A relevantly contained a Victim Impact Statement (VIS) dated 29 July 2021, which was read by the victim. It…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Elsworth (No 3)

Details

AGLC: R v Elsworth (No 3) [2021] NSWDC 555
Case: [2021] NSWDC 555
Decision Date: 15 October 2021

CaseChat Overview and Summary

The defendant, Elsworth, was convicted of assault occasioning actual bodily harm and sentenced to a full-time custodial order in the Supreme Court of Victoria. Elsworth had engaged in sexual intercourse with a woman who was asleep and unable to consent. The case hinged on whether Elsworth knew or ought to have known that the woman was unable to consent.

The court was tasked with determining the legal standards of knowledge and consent in such circumstances, and whether Elsworth's conduct amounted to a criminal offence. The defence argued that Elsworth genuinely believed the woman was consenting, despite evidence to the contrary. The prosecution maintained that Elsworth should have been aware of the woman's inability to consent due to her state of unconsciousness.

The court found that the prosecution had established the elements of the offence beyond reasonable doubt. The woman's inability to consent was clear, and the court held that a reasonable person in Elsworth's position should have known this. The court rejected the defence's argument that Elsworth genuinely believed the woman was consenting. Consequently, the court found Elsworth guilty and imposed a full-time custodial sentence. The court's decision emphasised the importance of understanding consent in sexual encounters and the responsibility of individuals to ensure genuine consent is present.

Orders

Orders of the court

Full-time custodial order. For orders see [124]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Elsworth (No 3) [2021] NSWDC 555

Most Recent Citation

Elsworth v The The King [2022] NSWCCA 276

Cases citing this decision · 1 of 1 shown

Elsworth v The The King
[2022] NSWCCA 276

…s): 2019/00338327 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 555 Date of Decision: 15 October 2021 Before: Mahony SC DCJ File Number(s): 2019/00338327…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Director of Public Prosecutions (Cth) v Saadieh
[2021] NSWSC 1186 Para 123

…isits and access to education programs are known to create additional hardship to both young and first-time offenders – see DPP (Cth) v Saadieh [2021] NSWSC 1186. I have taken this hardship into account in mitigating the offender’s sentence.…
Fisher v R; R v Fisher
[2021] NSWCCA 91 Para 34

…to explain the offender’s behaviour if such explanation effectively minimises the offender’s moral culpability, relying on R v Fisher; Fisher v R [2021] NSWCCA 91 at [225].…
R v Francis
[2020] NSWDC 870 Para 66

…ledging that each case must be determined according to its own facts. It was submitted that the present matter bore some familiarity with R v Francis [2020] NSWDC 870, where a similar offence was dealt with by way of a two year Community Corrections Order.…
The Queen v Hewitt
[2020] NSWDC 566 Para 88

…, the offender had been issued a warning during the evening as to his interaction with the victim. Counsel also distinguished the facts in R v Hewitt [2020] NSWDC 566. In all of the circumstances it was submitted that this was an appropriate case to impose penalties that involve punishment other than by way of impr…
Valentine v R
[2020] NSWCCA 116 Para 123

…pandemic. Steps taken by Corrective Services to minimise the risk to inmates have had significant impacts on their well-being – see Valentine v R [2020] NSWCCA 116 at [60] and [61]. These onerous conditions, which include lockdowns, limitations on access visits and access to education programs are known to create ad…
Director of Public Prosecutions (NSW) v Burton
[2020] NSWCCA 54 Para 88

…Counsel also referred to the decision in DPP v Burton [2020] NSWCCA 54 to distinguish the facts in that case from those in the present case. For example, in Burton there was an age differential between the offender (61 years) and the victim (18 years). Further, the offender had been issued a warning during the even…
Diaz v R
[2018] NSWCCA 33 Para 110

…that the offending took place over a short period of time does not diminish its seriousness, given the nature of the offending – see Diaz v R [2018] NSWCCA 33 at [53]; Fisher v R; R v Fisher [2021] NSWCCA 91 at [86].…
Kearsley v R
[2017] NSWCCA 28 Para 118

…ective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the offending – see Kearsley v R [2017] NSWCCA 28 per MacFarlan J at [14].…
KAB v R
[2015] NSWCCA 55 Para 38

…haracter at the time of the offending and that he had no previous convictions pursuant to s 21A(3)(e) and (f) of the CSPA. In accordance with KAB v R [2015] NSWCCA 55 at [48], the good character of the accused is a matter to be taken into account, however the weight to be given to it is a matter of discretion for t…
R v Tuala
[2015] NSWCCA 8 Para 117

…hological harm suffered by the victim is neither greater nor more deleterious than may ordinarily be expected from such offending – see R v Tuala [2015] NSWCCA 8.…
Simpson v R
[2014] NSWCCA 23 Para 32

…e seriousness of the offending in Count 2, sexual intercourse without consent, the Crown set out well established principles referring to Simpson v R [2014] NSWCCA 23 at [30] and R v King [2009] NSWCCA 117 at [36]. The nature of the act committed by the offender, namely, the particular mode of penetration is to be…
Saed Al-Marzouq v R
[2013] NSWCCA 112 Para 39

…wever no rule that for offences committed as part of the same criminal enterprise, the sentences must be served concurrently, relying on Franklin v R [2013] NSWCCA 112 at [44] and Cayhadi v R [2007] NSWCCA 1 at [27].…
R v Daley
[2010] NSWCCA 223 Para 33

…of time, it was submitted that short duration is not ordinarily a matter which reduces the objective seriousness of the offence, relying on R v Daley [2010] NSWCCA 223 at [48]. The Crown characterised the offending as “a gross violation of the victim’s body” and submitted there was a degree of deliberation in the co…
R v King
[2009] NSWCCA 117 Para 32

…t 2, sexual intercourse without consent, the Crown set out well established principles referring to Simpson v R [2014] NSWCCA 23 at [30] and R v King [2009] NSWCCA 117 at [36]. The nature of the act committed by the offender, namely, the particular mode of penetration is to be considered with all other circumstances…
Cahyadi v R
[2007] NSWCCA 1 Para 39

…as part of the same criminal enterprise, the sentences must be served concurrently, relying on Franklin v R [2013] NSWCCA 112 at [44] and Cayhadi v R [2007] NSWCCA 1 at [27].…
R v De Simoni
[1981] HCA 31 Para 61

…f Count 2 as this would amount to an offence against s 61J of the Crimes Act (aggravated sexual assault) and offend the rule in The Queen v De Simoni (1981) 147 CLR 383.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 37)
Crimes Act 1900 (ACT)
1 mention (from Para 29)

Medium Neutral Citation:	R v Elsworth (No 3) [2021] NSWDC 555
Hearing dates:	13 August 2021
Date of orders:	15 October 2021
Decision date:	15 October 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial order. For orders see [124]
Catchwords:	CRIME – assault occasioning actual bodily harm – sexual intercourse without consent.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Cayhadi v R [2007] NSWCCA 1 Diaz v R [2018] NSWCCA 33 DPP (Cth) v Saadieh [2021] NSWSC 1186 DPP v Burton [2020] NSWCCA 54 Fisher v R; R v Fisher [2021] NSWCCA 91 Franklin v R [2013] NSWCCA 112 KAB v R [2015] NSWCCA 55 Kearsley v R [2017] NSWCCA 28 R v Daley [2010] NSWCCA 223 R v Hewitt [2020] NSWDC 566 R v King [2009] NSWCCA 117 R v Tuala [2015] NSWCCA 8 Simpson v R [2014] NSWCCA 23 The Queen v De Simoni (1981) 147 CLR 383 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Benjamin Scott Elsworth (Offender)
Representation:	Counsel: C Dodds (Crown) H Dhanji/L C Hutchinson (Offender)
File Number(s):	2019/00338327
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.