Russell v The King

[2023] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Russell v R [2023] NSWCCA 272

Hearing dates:

31 July, 1-3 August, 1 September 2023

Date of orders:

03 November 2023

Decision date:

03 November 2023

Before:

Bell CJ; Stern JA; N Adams J

Decision:

1.   In relation to Count 1 the appeal against conviction is allowed, the conviction is quashed and a verdict of acquittal is entered.

2.   Leave is granted to appeal in relation to grounds 3, 4, 8 and 9.

3.   The appeal against conviction in relation to Counts 2 and 3 is dismissed.

4. The aggregate sentence imposed by Syme DCJ on 4 July 2022 is quashed and, in lieu thereof, the Appellant is sentenced to an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years to commence on 15 September 2021 and expire on 14 September 2028 with a non-parole period of 5 years and 3 months imprisonment to commence on 15 September 2021 and expire on 14 December 2026. The Appellant is first eligible for parole on 14 December 2026.

Catchwords:

CRIME – appeals – appeal against conviction – female genital mutilation – whether excision of part of the labia minora of complainant was contrary to s 45 of the Crimes Act 1900 (NSW) – whether purpose of s 45 was to prevent female genital mutilation being performed on female children – whether statements as to purpose of s 45 by High Court in The Queen v A2 (2019) 269 CLR 507 required s 45 to be read down so as only to apply to female children – where actual text of s 45 does not support such a reading – principles of statutory interpretation – purposive construction – departure from literal meaning of statute

CRIME – appeals – appeal against conviction – whether consent available as a defence to a charge of infliction of grievous bodily harm – where body modification artist performed “tummy tuck” surgery on complainant who consented to such surgery – consideration of the role of consent in cases of actual and grievous bodily injury – whether considerations of autonomy should render consent a defence

CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – where the Appellant inserted a silicon implant into the hand of the deceased – whether evidence capable of establishing beyond reasonable doubt that the Appellant’s treatment of the deceased was criminally negligent

CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – causation – where multiple possible causes of death – whether evidence capable of proving beyond reasonable doubt that septicaemia was a significant or substantial cause of death – whether multi-drug toxicity was the sole or a contributory cause of death

CRIME – appeals – appeal against conviction – miscarriage of justice – failure to give a “Shepherd direction” that the Crown had the burden of proving beyond reasonable doubt that septicaemia was present in the deceased at the time of her death and that it was a significant or substantial cause of her death – standard of proof in finding that septicaemia was a significant or substantial cause of the deceased’s death

SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – objective seriousness – whether indicative sentences adequately took into account the consent of the victims to body modification procedures

Legislation Cited:

Crimes Act 1900 (NSW) ss 4, 18(1)(b), 33(1)(b), 43A(1), 45, 60DF, 61AA(6), 66EB(1), 91FA, 93AC(1)

Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW)

Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5A, 25C

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 44(2A)

Domestic Abuse Act 2021 (UK) s 71

Evidence Act 1995 (NSW) s 177

Family Law Act 1975 (Cth) s 63(1)

Interpretation Act 1987 (NSW) s 33

Offences against the Person Act 1861 (UK) s 47

Private Health Facilities Act 2007 ss 4, 33, 39

Private Health Facilities Regulation 2010 (NSW) regs 3, 3A

Private Health Facilities Regulation 2017 (NSW) regs 3, 4, 13A

Public Health Act 2010 (NSW) s 39A

Cases Cited:

A2 v The Queen [2018] NSWCCA 174

Attorney-General’s Reference (No 6 of 1980) [1981] QB 715

Baker v R [2023] NSWCCA 262

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

Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35

C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47

Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1; [1981] HCA 40

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Davis v Chief of Army [2011] ADFDAT 1; (2011) 278 ALR 199

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Dowling v R [2020] NSWCCA 290

DS v R; DM v R [2022] NSWCCA 156

Fantakis v R [2023] NSWCCA 3

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

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Freeburn v The Queen [2020] VSCA 155

Hill v Zuda Pty Limited [2022] HCA 21; (2022) 96 ALJR 540

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36

Kapua v R [2023] NSWCCA 14

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

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

Macdonald v R [2023] NSWCCA 250

Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28

McCarthy v R [2019] EWCA Crim 2202

Mc-Graw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19

Neal v R (2011) 32 VR 454; [2011] VSCA 172

Nydam v R [1977] VR 430

Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331

Paterson v R [2021] NSWCCA 273

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Perre v Apand (1999) 198 CLR 180; [1999] HCA 36

R v Barnes [2005] 1 WLR 910

R v Brown [1994] 1 AC 212

R v Coney (1882) 8 QB 534

R v Cuerrie [1998] 2 SCR 371

R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150

R v Dica [2004] QB 1257

R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214

R v Donovan [1934] 2 KB 498

R v Eriksson [2001] NSWSC 781

R v Gary Gow [2006] NSWDC 78

R v HA [2008] NSWSC 1368

R v Hennigan [1971] 3 All ER 133

R v Jobidon [1991] 2 SCR 714

R v Keenan [2009] HCA 1; (2009) 83 ALJR 243

R v Konzani [2005] EWCA Crim 706

R v Lee [2006] 3 NZLR 42

R v M(B) [2018] EWCA 260

R v McIntosh [1999] VSC 358

R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201

R v Mwai [1995] 3 NZLR 149

R v O’Brien [2003] NSWCCA 121

R v Raabe [1985] 1 Qd R 115

R v Richardson [1999] QB 444

R v Stein (2007) 18 VR 376; [2007] VSCA 300

R v Walker [2023] NSWCCA 219

R v Wilson [1997] QB 47

Reeves v The Queen [2013] HCA 57; (2013) ALJR 215

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41

Rogers v Whittaker (1992) 175 CLR 479; [1992] HCA 58

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27

Schloendorff v Society of New York Hospital (1914) 105 N.E. 92

Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Slattery v R [2023] NSWCCA 117

Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35

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

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

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

Towse v R [2022] NSWCCA 252

Ussher-Clarke v R [2018] NSWCCA 61

Texts Cited:

A J Watkins, “Score and Pierce: Crimes of Fashion? Body Alteration and Consent to Assault” (1998) 28 Victoria University of Wellington Law Review 371

B Bix “Assault, Sado-masochism and Consent” (1993) 109 Law Quarterly Review 540

D Kell, “Social Disutility and the Law of Consent” (1994) 14 Oxford Journal of Legal Studies 121

Family Law Council, Female Genital Mutilation, (June 1994)

K J Arenson, “Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen” (2014) 33(2) The University of Tasmania Law Review 300

Law Commission for England and Wales, Consent in the Criminal Law: A Consultation Paper (1995)

Category:

Principal judgment

Parties:

Brendan Russell (Appellant)
The Crown (Respondent)

Representation:

Counsel:

M Tedeschi AM KC with C Newman (Appellant)
S Dowling SC with E Nicholson and D Beaufils (Respondent)

Solicitors:

Conditsis Lawyers (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/136609; 2018/248702

Publication restriction:

Pursuant to a statutory non-publication order made pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any information which could identify the three complainants, any friend or relative, living or deceased, of the three complainants or the witness referred to as MA.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 782

Date of Decision:

15 November 2021

Before:

Syme DCJ

File Number(s):

2018/136609; 2018/248702

HEADNOTE

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

On 15 November 2021, following a judge alone trial in the District Court which took place between 13 September and 28 October 2021, Syme DCJ (the trial judge) found the Appellant, Mr Brendan Russell, guilty on all three counts of an indictment dated 21 May 2021: R v Brendan Russell [2021] NSWDC 782. On 4 July 2022, the trial judge sentenced the Appellant to a period of 10 years imprisonment with a non-parole period of 7 years and 6 months. The three counts on the indictment were:

1. Count 1: One count of female genital mutilation contrary to s 45(1)(a) of the Crimes Act 1900 (the Crimes Act);

2. Count 2: One count of grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act; and

3. Count 3: One count of manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act.

Each of the three counts related to procedures performed by the Appellant when conducting trade as an “extreme body modification artist”, either at a business he owned called Transition Tattoo and Body Modification at Erina Fair, Erina (Transition) or at Tribal Urge, a tattoo studio in Newcastle. The Appellant was not at any time a medical practitioner, authorised professional, medical student or midwifery student.

Count 1 involved a “labiaplasty” procedure performed by the Appellant on AA, with AA’s consent, on or about 5 January 2015 in which he partially excised her labia minora. The procedure was conducted for cosmetic purposes.

Count 2 concerned an “abdominoplasty” or “tummy tuck” procedure performed by the Appellant on BB on 13 November 2016 which involved removing skin from her abdominal area. The procedure resulted in adverse health outcomes for BB and she required emergency corrective surgery which left significant scarring on her abdomen. It was not in dispute that BB consented to the procedure in the broad sense in which consent is used in the criminal law.

Count 3 arose out of the insertion by the Appellant on 20 March 2017 of a silicon snowflake shaped mould under the skin of CC’s right hand. From around late March 2017, several lay witnesses made observations of CC, including that she appeared to be in pain and that the wound on her hand seemed to be infected.

On 10 April 2017, CC returned to see the Appellant at Transition due to her concerns about the implant site. He injected her hand with anaesthetic, reopened the implant wound and repositioned the implant under the skin. The Appellant also inserted another implant under the skin of her thumb. Later that day CC complained to her mother and friend about bleeding from her hand and to her friend and brother about pain in her hand. Her brother observed the wound having pus and black blood.

On 11 April 2017, CC had appointments with a GP (but not her usual GP) and neurologist in relation to pain associated with her pre-existing persistent daily migraines. CC was prescribed a variety of medications including Lyrica (pregabalin). CC did not say anything to those medical practitioners about her hand and they did not make any observations consistent with CC having sepsis. However, also on 11 April, CC filled a prescription for antibiotics which had been written in January 2017 and a friend observed CC’s hand was weeping blood and pus, that she looked “worse than before” and seemed confused with slurred speech. She told another friend she felt terrible and was struggling. CC’s mother spoke to her on the phone and she sounded “off with the fairies”. At 6.33 pm CC phoned the Appellant about the infection in her hand and seemed really concerned and sounded “groggy”. The Appellant told her to come and see him the next day and to take Advil. CC asked if she should take her new migraine medication and the Appellant said “yes”. He told CC that the implant was “irritated” not infected and did not encourage her to seek medical attention.

On 12 April 2017 at approximately 1 am, CC spoke with her neighbour on her balcony for about 10 minutes. Her neighbour observed that she didn’t sound as slurred but that her hand was more swollen than before and seemed worse. CC told her that it was “just so painful”. At around 6 am, CC was found deceased. An autopsy was conducted on 18 April 2017 and samples of CC’s urine and femoral blood were collected for analysis. A toxicology report and evidence at the scene of her death indicated that CC had consumed several pharmacological substances in the hours prior to her death, including codeine, morphine, oxycodone, oxymorphone, zopiclone, 7-aminoclonazepam and clomipramine. It was also apparent that she had consumed 11 Lyrica (pregabalin) tablets, but at the time there was no toxicological test for pregabalin.

There were potentially four ways in which CC’s death might have been caused: (1) by sepsis and/or septic shock, (2) by multi-drug toxicity, (3) by the combined effects of sepsis and multi-drug toxicity, or (4) by an unascertained cause. Five forensic pathologists, two infectious disease physicians and two pharmacologists/toxicologists gave evidence in relation to CC’s cause of death.

The Appellant agreed that he owed CC a duty of care. The trial judge held that the Appellant breached this duty by inserting the implant in circumstances where proper care was not taken to avoid future infection, not referring CC for proper medical attention when her hand was presenting as infected, manipulating the implant in such a way as was likely to cause further spreading of infection, inserting a further implant which would have been likely to increase the risk of infection especially in circumstances where it was likely that proper care was not taken to avoid future infection and not telling CC she should seek proper medical attention as a matter of urgency. Her Honour went on to find that a significant or substantial cause of CC’s death was sepsis (and that multi-drug toxicity may have contributed to the speed of her death) and that consequently, the negligent acts and omissions of the Appellant operated singularly or together as a substantial cause of CC’s death. Moreover, the Appellant’s breach of his duty of care was found to be so significant as to be considered deserving of a criminal response.

The Appellant sought leave to appeal from his conviction on all three counts. The grounds of appeal can be summarised as follows:

1. Ground 1: In relation to Count 1, the trial judge erred in ruling that the offence under s 45(1)(a) of the Crimes Act applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices.

2. Ground 2: In relation to Count 2, the trial judge erred in concluding that consent is no defence to a charge of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act.

3. Grounds 3, 4, 8 and 9: The verdict in respect of Count 3 is unreasonable and cannot be supported having regard to the evidence.

4. Grounds 6 and 7: In relation to Count 3, the trial judge erred by failing to direct herself as to and not applying the appropriate standard of proof in finding that septicaemia was a significant or substantial cause of CC’s death.

The Appellant also sought to appeal from his sentence. The grounds of appeal can be summarised as follows:

1. Grounds 10, 11, 12 and 13: In relation to all three counts, the trial judge erred in assessing the indicative sentences by failing to adequately take into account various factual matters, including that each of the complainants had consented to the procedures, resulting in the imposition of an aggregate sentence that was manifestly excessive.

2. Ground 14: The aggregate sentence imposed was manifestly excessive.

The Court held (Bell CJ, Stern JA and N Adams J), granting leave to appeal, allowing the appeal against conviction in respect of Count 1, dismissing the appeal against conviction in relation to Counts 2 and 3 and resentencing the Appellant to an aggregate sentence of 7 years with a non-parole period of 5 years and 3 months:

As to Ground 1:

1. There is no textual support for the confinement of the operation of s 45(1) of the Crimes Act to female children and, but for the majority decision in The Queen v A2 (2019) 269 CLR 507 (A2), several powerful textual considerations would have led to a rejection of the Appellant’s argument that s 45(1) should be confined to proscribed acts of mutilation performed on female children as a result of ritualistic practices: [27]-[29].

   Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 and McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, applied.

2. What was said in unqualified language by the majority in A2 as to the purpose of s 45 being for the benefit and protection of children amounts to “seriously considered dicta”. In particular, the reliance upon the purpose of the Crimes Act and the “practices” which it was concerned to criminalise, in dismissing an argument that s 45 would operate to criminalise adult body piercing, lent added force to the dicta relied upon by the Appellant: [30].

   Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, applied.

3. Consistent with the important role of purpose in statutory interpretation, s 45(1) of the Crimes Act should be read down by reference to what the majority in A2 identified in seriously considered dicta as being the purpose of that section: [31]-[38].

   Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1, SZATL v Minister for Immigration and Border Protection (2017) 262 CLR 362, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and Maloney v The Queen (2013) 252 CLR 168, referred to.

As to Ground 2:

1. The question whether a person may consent to the infliction of actual bodily harm does not arise for determination in this case. Consistent with the approach of Lord Burnett in R v M(B) [2018] EWCA 260, subject to well-established exceptions, a person cannot consent to the infliction of grievous bodily harm. This position is underwritten by robust common sense and could not be described as either paternalistic or moralistic. It also accords with the vast weight of judicial authority in common law jurisdictions, including the clear majority position in R v Brown [1994] 1 AC 212, noting that even the minority judgments in that case did not contemplate that consent would be available as a defence to a charge of infliction of grievous bodily harm and that the central thesis referred to by McHugh J in Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 (Marion’s Case), respectful of personal choice and autonomy, was not unqualified: [89], [91]-[92].

   McCarthy v R [2019] EWCA Crim 2202, R v Richardson [1999] QB 444, R v Stein (2007) 18 VR 376, R v McIntosh [1999] VSC 358, Schloendorff v Society of New York Hospital (1914) 105 N.E. 92, R v Lee [2006] 3 NZLR 42, R v Coney (1882) 8 QB 534, R v Donovan [1934] 2 KB 498, Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, Attorney-General’s Reference (No 6 of 1980) [1981] QB 715, R v Raabe [1985] 1 Qd R 115, R v Jobidon [1991] 2 SCR 714, R v Wilson [1997] QB 47 and Davis v Chief of Army [2011] ADFDAT 1, considered.

1. Certainty is an important quality in the law and case-by-case inquiries into the social utility or disutility of particular conduct are best left for the legislature. Even if this Court embarked upon an examination of the public benefit in the context of this case, the risks attending a significant surgical procedure such as that undertaken by the Appellant on BB are sufficient to trump appeals to personal autonomy: [92], [94].

2. That consent cannot operate as a defence to a charge of assault occasioning grievous bodily harm was the position taken in R v Stein (2007) 18 VR 376. There being one common law of Australia, this Court should not take a different approach to a question considered by an intermediate court of another state at a similar level in the judicial hierarchy unless convinced that that earlier approach is plainly wrong: [93].

   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390, referred to.

3. Parliament has signalled by way of the Private Health Facilities Act 2007 (NSW), and regulations made under that Act, that abdominoplasty as a form of cosmetic surgery must not be performed at a private health facility that is not licensed. Although this statutory regime was not in force until after the Appellant’s procedure was performed on BB, it is consistent with this Court’s view that it is not in the public interest that a person can voluntarily submit to a significant piece of surgery undertaken other than by a qualified health practitioner in licensed premises: [95]-[96].

4. A series of cases involving consent in the context of the transmission of sexual diseases did not support the Appellant’s argument. These cases all drew a distinction between the intentional infliction of injury (to which consent would not lie as a defence) and the reckless infliction of injury in the course of, or incidental to, consensual sexual activity. The Appellant did not inflict the injury on BB incidentally in the performance of some other lawful activity. Rather, the wounding to BB’s stomach was his specific intention: [97]-[98].

   R v Dica [2004] QB 1257, R v Barnes [2005] 1 WLR 910, R v Konzani [2005] EWCA Crim 706, R v Mwai [1995] 3 NZLR 149, R v Cuerrie [1998] 2 SCR 371 and Neal v R (2011) 32 VR 454, considered.

As to Grounds 6 and 7:

1. No Shepherd direction was required because the factual matter identified was causation (that the deceased developed sepsis which was a substantial or significant cause of her death) which was an element of the offence. The practical reality was that satisfaction of causation beyond reasonable doubt necessarily implied satisfaction that the deceased had sepsis and that it was a substantial or significant cause of her death: [111], [117], [123].

   The Queen v Baden-Clay (2016) 258 CLR 308, The Queen v Hillier (2007) 228 CLR 618, R v Keenan [2009] HCA 1, Macdonald v R [2023] NSWCCA 250, R v Davidson (2009) 27 NSWLR 150, Fantakis v R [2023] NSWCCA 3, applied.

2. The trial judge did not adopt a lower standard of proof when considering whether the Crown had proved that septicaemia was a substantial or significant cause of CC’s death. Her Honour correctly stated the standard of proof for causation and went on to provide her reasoning for being satisfied beyond reasonable doubt that sepsis was a significant or substantial cause of death with reference to the expert and lay witness evidence: [118]-[124].

As to Grounds 3, 4, 8 and 9:

1. In considering whether a verdict is unreasonable, it is not the Court’s task to determine whether there was error in the trial judge’s factual findings. Rather, the Court is required to determine whether the whole of the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the Appellant is guilty on Count 3. This inquiry necessarily requires the Court to consider whether it is satisfied that the elements of the offence are established beyond reasonable doubt, including causation: [126]-[127], [252].

   Dansie v The Queen [2022] HCA 25, Filippou v The Queen (2015) 256 CLR 47, Slattery v R [2023] NSWCCA 117, M v The Queen (1994) 181 CLR 487 and Pell v the Queen (2020) 268 CLR 123, applied.

2. The test for causation does not require either a percentage attribution as between the act or omission of the accused and other potential causative factors or a comparison as to the relative causative potency of various operative causes. Rather, the Court should assess the whole of the evidence with a view to determining whether or not the link between the accused’s act or omission and the relevant outcome is sufficiently substantial or significant that the accused should be criminally liable for the outcome. If it is, then the accused’s act or omission will be a cause of the outcome, even if there is another cause or contributor which of itself may have also been sufficient to cause the outcome: [139].

   Swan v The Queen (2020) 269 CLR 663, R v Hennigan [1971] 3 All ER 133, R v Moffatt [2000] NSWCCA 174, Freeburn v The Queen [2020] VSCA 155, Ussher-Clarke v R [2018] NSWCCA 61, Campbell v The Queen [1981] WAR 286, Baker v R [2023] NSWCCA 262 and Royall v The Queen (1991) 172 CLR 378, considered.

3. Having carefully reviewed all the evidence, the Court is satisfied beyond reasonable doubt that sepsis was a cause of death. This finding is supported by the matters relied upon by the various experts as well as the evidence as to CC’s deteriorating condition given by those who saw or spoke to her in the period shortly before her death. The lack of concrete findings of sepsis in the post-mortem context, the apparent speed of onset and the failure of the medical practitioners CC saw on 11 April 2017 to identify anything suggesting sepsis, do not stand against that conclusion: [341]-[347].

4. The evidence does not support a conclusion beyond reasonable doubt that sepsis was the sole operative cause of death. Rather, multi-drug toxicity was a contributory cause of death. However, the evidence was sufficient in nature and quality to eliminate any reasonable possibility that multi-drug toxicity was the sole cause of CC’s death: [350], [383]-[384].

5. There were two potential causative mechanisms by which multi-drug toxicity and sepsis may have combined to cause death: first, the effect of the drugs may have precluded the deceased realising the extent of her deterioration by reason of her sedation; second, the deceased’s sepsis may have made her more vulnerable to the respiratory depressive or cardiac toxic effects of the drugs; third, drugs may have added to the depressive effects of sepsis: [353].

6. Having conducted an independent assessment of all the evidence, including as to the contribution that multi-drug toxicity may have made to CC’s death, the Court is satisfied beyond reasonable doubt that the role played by sepsis in the death of CC should be characterised as substantial or significant and that it was sufficiently substantial for responsibility to be attributed to the Appellant for CC’s death: [354]-[355].

7. The evidence is also of sufficient nature and quality to eliminate any reasonable doubt that the Appellant was criminally negligent. The Appellant conducted a surgical procedure on CC in unhygienic conditions without the requisite skill and expertise thereby exposing her to a high risk of injury resulting from infection. When CC presented with an infected hand on 10 April 2017, the Appellant manipulated the implant which increased the risk of sepsis and failed to advise her to seek medical help. The breach of duty thus occurred over a period of days and weeks and does not rely on the critical hours before her death: [380].

As to Grounds 10, 11, 12, 13 and 14:

1. Given the quashing of the Appellant’s conviction on Count 1, it is necessary to re-sentence the Appellant on Counts 2 and 3. In those circumstances, it is not necessary to consider whether the aggregate sentence imposed was manifestly excessive: [385].

2. In assessing the objective seriousness of both Counts 2 and 3, there was no error in the trial judge’s approach to the significance of the victims’ consent. On the facts of this case, consent could not be assessed without the countervailing force of the breach of trust. No error was alleged in respect of her Honour’s finding that the Appellant’s moral culpability was not reduced on account of the victims’ consent. The Appellant accepted that the reference to “moral culpability” in the submissions before her Honour should have been a reference to “objective seriousness”, a separate but related concept: [421]-[428], [446]-[448].

   DS v R; DM v R [2022] NSWCCA 156, Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, Bugmy v The Queen (2013) 249 CLR 571, McCarthy v R [2019] EWCA Crim 2202 and R v M(B) [2018] EWCA 260, considered.

3. The trial judge did not err in finding that the objective seriousness of Count 2 was “below but not substantially below midrange”. The Appellant should be re-sentenced on the basis that although he did not tell BB that he had surgical training, he told her that he had training and experience in terms which impressed her, and which added to the feeling of trust he fostered: [438]-[443].

   Towse v R [2022] NSWCCA 252, Kapua v R [2023] NSWCCA 14 and R v Walker [2023] NSWCCA 219, referred to.

4. Count 3 was not at the “bottom of the range” of objective seriousness as contended by the Appellant. The objective seriousness of Count 3 is not reduced by either the contributing factor of multi-drug toxicity or the fact that CC did not become seriously ill until after her last appointment with the Appellant. Moreover, the Court is satisfied beyond reasonable doubt that CC was aware of the representations made by the Appellant on the “Fetlife” website that he had a “full extensive surgical background”: [451], [454], [458]-[460].

5. The Appellant did not have a strong subjective case. The comparative cases relied upon by the Appellant were of assistance only with respect to the relevant sentencing principles but there are no truly comparable cases in this matter: [461]-[467].

   R v Eriksson [2001] NSWSC 781, R v O’Brien [2003] NSWCCA 121, Dowling v R [2020] NSWCCA 290 and R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214, considered.

JUDGMENT

1. THE COURT: On 15 November 2021, following a judge alone trial in the District Court between 13 September and 28 October 2021, Syme DCJ (the trial judge) found the Appellant, Mr Brendan Russell, guilty on all three counts of an indictment dated 21 May 2021: R v Brendan Russell [2021] NSWDC 782 (primary judgment or PJ). Those three counts were:

1. Count 1: One count of female genital mutilation, contrary to s 45(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act), relating to the excision of part of the labia minora of the complainant, AA, on or about 5 January 2015 at Newcastle West;

2. Count 2: One count of grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act, relating to the performance of an abdominoplasty procedure on the complainant, BB, on 13 November 2016 in Erina; and

3. Count 3: One count of manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act, relating to the death of the complainant, CC, on 12 April 2017 at Toowoon Bay.

2. On 4 July 2022, the trial judge sentenced the Appellant to a period of 10 years imprisonment with a non-parole period of 7 years and 6 months, commencing on 15 September 2021. The following indicative sentences were provided in respect of each count:

1. Count 1:   3 years and 6 months.

2. Count 2:   2 years and 6 months, with a non-parole period of 1 year and 10 months.

3. Count 3:   7 years.

3. Each of the three counts related to procedures performed by the Appellant when conducting trade as an “extreme body modification artist” either at Transition Tattoo and Body Modification at Erina Fair, Erina (Transition), a business owned by the Appellant which was opened in June 2016, or as a body piercer at Tribal Urge, a tattoo studio in Newcastle. Through advertising and social media, the Appellant offered to perform body modification procedures and shared images and videos of body modification procedures he had previously performed. In addition to body modifications, the Appellant’s business at Transition also included a barbershop, tattooing and piercing.

4. It was an agreed fact at trial that “body modification” means:

“… the deliberate alteration of a part of the body in the same way that cosmetic procedures are designed. Body modification is a broad term and can range from the cutting or removal of body parts to the insertion of implants and scarification.”

5. By way of his profile on “Fetlife”, a social networking website for those interested in fetishism, the Appellant described his body modification work as follows:

“I offer a wide range of my works from Piercing, Tongue Splitting, Genital Splitting and Implants, Scarification, Branding, Suspension, Needle Play, Blood Play and much more and heavier with full extensive surgical background of training.”

It was also an agreed fact at trial that the Appellant had performed a range of penetrating body modification procedures using surgical and other implements and injectable local anaesthetics including eyeball tattooing, nipple removal and reshaping, insertion of subdermal implants, Caesarean scar reduction, scarification and body piercing.

Notice of Appeal

6. By way of a Notice of Appeal filed on 17 February 2023, the Appellant sought leave to appeal from his conviction on all three counts on the following grounds:

“Ground 1: The trial judge erred in ruling that the offence under section 45(1)(a) of the Crimes Act 1900 applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices.

Ground 2: The trial judge erred in concluding that consent is no defence to a charge of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act 1900.

Ground 3: The verdict in respect of Count 3 is unreasonable and cannot be supported having regard to the evidence

Ground 4: The trial judge erred in finding that the appellant was criminally negligent in respect of his treatment of the deceased.

Ground 6: The trial judge erred in failing to give herself a Shepherd direction that the Crown had the burden of proving beyond a reasonable doubt an essential fact in the Crown case, namely that septicaemia was a significant or substantial cause of death of the deceased, such direction having been requested on behalf of the appellant.

Ground 7: The trial judge erred in adopting a lower standard of proof in finding that septicaemia was a significant or substantial cause of death of the deceased, concluding instead that the evidence was consistent with such a finding.

Ground 8: The trial judge erred in finding that septicaemia was a significant or substantial cause of death in that the evidence was incapable of proving that fact beyond a reasonable doubt.

Ground 9: The trial judge erred by failing to properly take into account the ingestion by the deceased of drugs in assessing whether or not septicaemia was a significant or substantial cause of her death.”

7. The Appellant also sought leave to appeal from his sentence on the following grounds:

“Ground 10: The sentencing judge erred when assessing the indicative sentence on count 1 in failing to adequately take into account the fact that the victim was an adult and had consented to the procedure, resulting in her Honour imposing an aggregate sentence that was manifestly excessive.

Ground 11: The sentencing judge erred when assessing the indicative sentence on count 2 in failing to adequately take into account the fact that the victim had consented to the procedure and knew that the offender was not a medical practitioner, resulting in her Honour imposing an aggregate sentence that was manifestly excessive.

Ground 12: The sentencing judge erred when assessing the indicative sentence on count 3 in failing to adequately take into account the fact that  the deceased had consented to the procedure, that she had only become seriously ill after her last appointment with the appellant, and that there was a reasonable possibility that the intake of drugs by the deceased played a significant role in her sudden death and her failure to obtain medical treatment, resulting in her Honour imposing an aggregate sentence that was manifestly excessive.

Ground 13: The sentencing judge erred in finding, in respect of Count 3, that CC was aware of the restricted social media post by the Appellant representing himself to have “full extensive surgical background of training” and in finding the Appellant’s breach of trust was encouraged by this representation, resulting in her Honour imposing an indicative sentence in respect of Count 3 and an aggregate sentence that was manifestly excessive.

Ground 14: The aggregate sentence imposed was manifestly excessive.”

Ground 1

8. The first ground of appeal related to Count 1 on the indictment.

9. The facts were not in dispute and were agreed as follows:

“19.   The complainant in this matter is [AA]… She was 29 years old at the relevant time.

20.   On 5 January 2015, [AA] attended Tribal Urge, where the [Appellant] undertook a procedure whereby he partially excised her labia minora (the right labia minora was completely excised; the anterior half of the labia minora was excised) …

21.   The procedure was carried out with AA’s consent.

22.   The procedure was for a non-medical, cosmetic/ body modification purpose.

23.   As a result of the procedure, AA experienced pain for approximately 12 months following the procedure, is unable to use tampons due to pain, and experiences discomfort when wearing underwear due to sensitivity at the site of the excision.

24. [The Appellant] was not at any time a medical practitioner, authorised professional, medical student or midwifery student (as those terms are defined in s 45 of the Crimes Act NSW).”

10. Section 45 of the Crimes Act provides:

“(1)   A person who—

(a)   excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

(b)   aids, abets, counsels or procures a person to perform any of those acts on another person,

is liable to imprisonment for 21 years.

(2)   (Repealed)

(3)   It is not an offence against this section to perform a surgical operation if that operation—

(a)   is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b)   is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c)   is a sexual reassignment procedure and is performed by a medical practitioner.

(4)   In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

(5)   It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.

(6)   This section applies only to acts occurring after the commencement of the section.

(7)   In this section—

authorised professional means—

(a)   a registered midwife, or

(b)   a midwifery student, or

(c)   in relation to an operation performed in a place outside Australia—a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or

(d)   a medical student.

medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.

medical student means—

(a)   a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the medical profession, or

(b)   in relation to an operation performed in a place outside Australia—a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.

midwifery student means—

(a)   a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the midwifery profession, or

(b)   in relation to an operation performed in a place outside Australia—a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place.

sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.”

11. The trial judge held that:

“[106]    It is my view that taking into account all of the information that was given parliament clearly intended to legislate broadly to criminalise not only the activity with the ambit of the Family Law Council definition of female genital infibulation, that is, the ritual practice carried out on female children but also activity beyond that definition so as to criminalise non-ritualised procedures on any person including otherwise mutilating and excising the named body parts.

[107]    Finally, if the legislature had intended to make legislation concerning children there are ample places in the Crimes Act where they could have so limited provision of the law. However, s 45 is placed in the division concerning injury to persons not in any of the many divisions concerning offences against children. This is a further indication if any is required, that there was no intention of the legislature to require the section to apply only against children.

[108] I find that s 45(1) does not apply only to children nor only to ritualistic or religious flavoured principles.

[109] I find, therefore, beyond reasonable doubt that the accused is guilty of the charge that on 15 January 2015 he excised a portion of the labia minora of AA contrary to s 45 of the Crimes Act.” (Emphasis in original.)

12. The single argument attacking the Appellant’s conviction for contravention of s 45(1) of the Crimes Act was that that section only applied to children and female genital mutilation, as defined in the Crimes Act, when performed as part of a ritualistic tradition, and that AA was not a child when the relevant procedure took place nor was the procedure performed by the Appellant traditional or ritualistic.

13. This argument turned entirely on the High Court’s decision in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 (A2) and the identification of the statutory purpose of s 45(1) of the Crimes Act as being “to prohibit completely female genital mutilation practices injurious to female children” (emphasis added): at [56]; see also, for example, at [58]. A2 was not concerned with a case such as the present which involved a partial and complete excision of the labia minora – an act specifically proscribed by s 45(1)(a) – but rather with the concept of “otherwise mutilates” within the meaning of that section. Mr Tedeschi AM KC submitted, however, that it would be absurd to adopt a different approach to the different parts of the same subsection; in other words, the statutory purpose identified as underpinning the reference to “otherwise mutilates” in s 45(1) applied to the act of complete or partial excision of the labia minora also referred to in that subsection.

14. As will be seen, there were numerous further references in A2 to the purpose of the section being so confined. That limited purpose was expressly relied upon by Kiefel CJ and Keane J, with whom Nettle and Gordon JJ (at [148]) expressed their general agreement, to reject an argument that the majority’s construction of the phrase “or otherwise mutilates” in s 45(1)(a) would mean that “a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals”, would be criminalised: see A2 at [49], and [18]-[19] below.

15. The issue in A2 was not whether the section only applied to female genital mutilation of children. The complainants in that case, C1 and C2, were subjected to the impugned procedure (cutting or nicking a young girl’s clitoris) when aged between six and eight. The issue in the case was whether that procedure fell within the meaning of the phrase “or otherwise mutilates” in s 45(1)(a) of the Crimes Act. This Court had held that it did not, on the basis that the term “mutilation” required demonstration of some injury or imperfection which had some permanent quality: A2 v The Queen [2018] NSWCCA 174 at [521]-[522].

16. By majority, the High Court reversed this Court’s decision. Kiefel CJ and Keane J held that the word “mutilates” in its ordinary usage was displaced in order to give effect to the purpose of s 45, namely to prohibit the practice of female genital mutilation on female children in order to achieve its cessation, and that, so understood, the phrase “otherwise mutilates” was to be taken to refer to female genital mutilation in all its injurious forms: at [53]. Nettle and Gordon JJ held that it was not necessary to demonstrate that the physical injury lasted beyond the time it took for that immediate injury to heal or that there was any permanent disfigurement, alteration or loss of function, of the whole or any part of the labia majora, labia minora or clitoris: at [151]. Edelman J held that it referred to all actions including every form of practice of causing tissue damage to the genitals of female children: [171]-[173].

17. Although the question of the application of s 45(1) to procedures performed on adults (as opposed to children) was not in issue in A2, there were express references in the judgments of Kiefel CJ and Keane J and Edelman J to the purpose of s 45 in unqualified, apparently exhaustive terms. Kiefel CJ and Keane J referred to:

“[44]    … the mischief to which s 45 is directed is a gap in the law concerning the practice of female genital mutilation in all its forms which are productive of injury. Its immediate purpose is to criminalise the carrying out of that practice on female children. Its wider purpose may be taken to be its cessation.

…

[46] …The Bill which became the Act that introduced s 45, after all, was said by the Minister to address what amounts to child abuse and the FLC Report had said that female genital mutilation in all its injurious forms was child abuse as understood in child protection laws.

…

[53]    The meaning to be given to “otherwise mutilates”, as referable to practices falling within the umbrella term “female genital mutilation”, does not involve any artificial or unexplained extension. There is no ambiguity as to its meaning after it is considered in its context and by reference to the mischief to which it is directed and its purposes. The word “mutilates” in its ordinary usage is simply displaced in order to give effect to the purpose of s 45, to prohibit the practice of female genital mutilation on female children in order to achieve its cessation. So understood, “otherwise mutilates” is to be taken to refer to female genital mutilation in all its injurious forms.

…

[56] A construction which gives a broader scope to s 45 is consistent with its wider purpose, to prohibit completely female genital mutilation practices injurious to female children. That purpose is consistent with Australia's obligations under the Convention on the Rights of the Child, to which the FLC Report drew attention.” (Emphasis added.)

18. As noted in [14] above, one of the arguments advanced in the High Court was that, on the construction of the meaning of “mutilation” ultimately upheld by the majority, cosmetic procedures such as body piercing would be criminalised. Kiefel CJ and Keane J recorded and rejected this argument at [49] in the following terms:

“The respondents also contended that if “otherwise mutilates” has the extended meaning provided by the term “female genital mutilation”, s 45(1) would make it an offence to carry out a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals. The answer to the argument is that no such problem would arise if “otherwise mutilates” is taken to refer to practices to which female genital mutilation refers.” (Emphasis added.)

19. Their Honours’ reference to “practices” in this passage must be taken to be a reference back to [42] and [44] of their joint judgment. Paragraph [44] has already been noted. Paragraph [42] referred to the Family Law Council Report (Female Genital Mutilation, (June 1994)) (FLC Report) which had been referred to earlier in their Honours’ judgment (at [21]-[24]) and which had also been referred to in the Second Reading Speech of the Bill which became the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW) and by which s 45 was introduced. Kiefel CJ and Keane J said at [42] that:

“The FLC Report used the term “female genital mutilation” as a collective name to refer to all ritual practices carried out on female children which had no medical benefit and involved tissue damage. It advised the Attorney-General that there was a need for special legislation to make it plain that female genital mutilation, in all its forms, should be an offence.” (Emphasis added.)

20. Similarly, Edelman J referred to:

“[171] … Properly characterised, the essential meaning of the practice of female genital mutilation captured by the words “otherwise mutilates” in s 45(1)(a) is all actions involving a practice of causing tissue damage to the genitals of female children. The purpose of s 45(1)(a) was to proscribe any forms of that practice. It was not to proscribe only some forms of the practice. Nor was it only to proscribe the particular forms of the practice that were best known in 1994.

…

[173]   … Whatever the understanding of the Minister or others about the particular existing forms of the practice of female genital mutilation, and whether or not any new or unforeseen forms of the practice arise, the purpose of s 45(1)(a) was likewise intended to extend to every form of the practice of female genital mutilation, namely any actions which result in tissue damage to the genitals of female children.

[174]    … To conform with the legislative purpose, the prohibition on all forms of the practice of female genital mutilation must extend to all actions involving tissue damage to the genitals of female children.” (Emphasis added.)

21. The argument advanced by Mr Tedeschi, who appeared on behalf of the Appellant, was quite simple. He pointed to s 33 of the Interpretation Act 1987 (NSW) (Interpretation Act) which requires a purposive effect to be given to the interpretation of New South Wales statutes and submitted that the purpose of s 45(1) of the Crimes Act was identified in the majority judgments of the High Court in A2, and that that purpose qualified the literal and unqualified language of the text. He submitted that the identified statutory purpose required a reading down of “otherwise mutilates”. A variation of this argument is that the identification of the statutory purpose qualified the reference to “of another person” and “on another person” in s 45(1)(a) and (b) respectively, with those references being required to be read down to apply only to female children and (although this was not essential to his argument) female children whose genitals had been mutilated as part of a ritualistic ceremony or procedure.

22. As the complainant was not a child, it was submitted that s 45 did not apply and that the Appellant should be acquitted on the charge that he had contravened this section of the Crimes Act by performing an excision of the labia minora of AA.

23. Mr Tedeschi also submitted that, even if the references to female children in the majority judgments’ identification of the purpose of s 45 was not strictly ratio decidendi, it was at the very least “seriously considered dicta” within the meaning of Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah) at [134] such that this Court, as an intermediate appellate court, was bound to apply it; see also Hill v Zuda Pty Limited (2022) 275 CLR 24; [2022] HCA 21 at [25].

24. A further argument advanced by Mr Tedeschi in support of his preferred construction was that, on the Crown’s preferred construction and the ordinary literal meaning of s 45(1), any labiaplasty performed by a surgeon on an adult woman for only cosmetic reasons would be a criminal act and would not attract s 45(3). It was submitted that there was no support in the secondary materials for the section being given this broad effect in the case of pure cosmetic surgery on adult women.

25. The Director of Public Prosecutions submitted that the confinement of the operation of s 45(1) of the Crimes Act to female children formed no part of the ratio decidendi of A2 and that the references relied upon by Mr Tedeschi as identified above did not constitute “seriously considered dicta”. The Director also submitted that there was no textual support for the confinement of the operation of the section to female children, and that there were a number of powerful textual indications against the construction urged on behalf of the Appellant. As to the further argument noted at [24] above, it was submitted that this was a matter that could be expected to be dealt with by the reasonable exercise of prosecutorial discretion, an answer that would be unlikely to be a source of comfort to cosmetic surgeons.

26. The Director also sought to draw on statements made by the Attorney General at the time of introducing the Bill which became the Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW) which amended the Crimes Act by introducing s 45A(1). That section provides that a “person is guilty of an offence if the person takes another person from the State, or arranges for another person to be taken from the State, with the intention of having female genital mutilation performed on the other person.” In his Second Reading speech, the Attorney General said that:

“The offence is not restricted to taking a child or arranging for a child to be taken from New South Wales; it will apply to adults as well… The existing female genital mutilation offence in New South Wales prohibits the female genital mutilation of women as well as girls and it would be inconsistent for the removal offence not to apply also to children and adults.”

Consideration

27. We agree with the submission of the Director that there is no textual support for the confinement of the operation of s 45(1) of the Crimes Act to female children, and that there are at least seven powerful textual indications and arguments against the construction urged on behalf of the Appellant. These are as follows:

1. first, the Appellant’s construction involves reading down the reference to “person” when second occurring in s 45(1) to a child but in so doing it would give the word “person” where there used a different meaning to the word “person” where first appearing. It was not suggested that the first reference to person could or should be read down. To do so would have been a nonsense and confined the operation of the section to female genital mutilation performed by children on children. Affording a different meaning to the same word within a single section of an Act violates a well-established and sound principle of statutory construction (Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41, Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10; [1981] HCA 40), albeit one that must yield to context: Mc-Graw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643; [1979] HCA 19;

2. second, insofar as the interpretation contended for sought to confine s 45 to a ritualistic/traditional context, the construction involves the reading in to the section of words of limitation;

3. third, while noting that Kiefel CJ and Keane J at [51] of A2 reason that s 45(3) is “properly read as a clarification inserted for the avoidance of doubt, and not as an exception to s 45(1)”, it is inherently unlikely that s 45 would be intended to refer, and be confined, to acts of female genital mutilation performed on children when one has regard to the defences to s 45(1) as stated in s 45(3) which provides as follows:

“It is not an offence against this section to perform a surgical operation if that operation—

(a)   is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b)    is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c)    is a sexual reassignment procedure and is performed by a medical practitioner.”

These defences and, in particular, sub-s (3)(b), plainly are intended to apply or at least extend to adults (as well as, in some limited cases, children of child bearing age);

4. fourth, also rendered otiose by the Appellant’s construction is s 45(5) which provides that consent is no defence to an act contravening s 45(1). If s 45(1) is confined to children, as a general rule, they will lack legal capacity to give consent;

5. fifth, had the legislature intended to confine the application of s 45 to acts of female genital mutilation performed on children, one would have expected that not only to have been stated but also that a definition of “child” or “children” would be supplied, especially in circumstances where the Crimes Act identifies a number of offences against children and the definition of a child by reference to his or her age is not uniform across those offences: for example, a “child” is defined as a person under 16 years of age by ss 43A(1), 66DF, 66EB(1) and 91FA of the Crimes Act but as a person under 18 years of age by ss 61AA(6) and 93AC(1) of the Crimes Act. As the Director submitted, “the Parliament is astute to identify particular offences that apply to children of a particular age when it wishes to do so”;

6. sixth, and relatedly, one would not lightly attribute an intention to the legislature to create criminal liability but to leave a detail as to the age of the children to which the section was apparently intended to apply undefined and ambiguous given the diverse definitions of children and the age when that status is stated to cease elsewhere in the Crimes Act;

7. seventh, as Mr Tedeschi accepted, the secondary materials such as the FLC Report referred to in the Second Reading Speech were not confined to concerns about female genital mutilation performed solely on children. For example, although the FLC Report acknowledges that the majority of female genital mutilation concerns children, the Council in various places, including at [6.37] and [6.41], refers to the need to protect and support “women and children”. The FLC Report (at [2.13]-[2.14]) also refers to cultural practices involving female genital mutilation performed on adult women.

28. We do not place any weight on the statements made by the Attorney General in his Second Reading speech which led to the 2013 amendments and the introduction of s 45A of the Crimes Act. What was then said cannot rationally inform the proper interpretation of a statutory provision introduced at an earlier time by an earlier Parliament, even in circumstances where an immaterial amendment to the maximum penalty was also made to s 45 by the same Bill.

29. But for the decision in A2, for the seven reasons advanced in [27] above, we would have been inclined to reject the argument advanced on behalf of the Appellant, namely that s 45(1) should be confined to the proscribed acts of mutilation, including excision of the labia minora, performed on female children as a result of ritualistic practices.

28. To the extent that members of the majority in A2 referred to the purpose of s 45 as being for the benefit and protection of children, such references were unsurprising in the context of the facts of that case which involved children of between six and eight years of age. That having been said, while we accept that the question of the scope of the application of s 45(1) of the Crimes Act and the meaning of “of another person” and “on another person” in s 45(1)(a) and (b) formed no part of the ratio decidendi in A2, what was said in unqualified language as to the purpose of s 45, in the various passages to which we have referred above, amounts to “seriously considered dicta” within the meaning of Farah. We reject the Director’s respectful submission to the contrary. In particular, the reliance by Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, upon the purpose of the Act and the “practices” which it was concerned to criminalise in order to dismiss an argument developed on behalf of A2 in relation to adult body piercing (see [18]-[19] above), lent added force to the dicta relied upon by Mr Tedeschi.

29. The question of statutory interpretation thus becomes one of whether the literal and relevantly unconfined (in terms of scope) meaning of s 45(1) should be read down by reference to what a majority of the High Court identified in seriously considered dicta was the purpose of s 45(1) of the Crimes Act.

30. We consider that authority dictates that it should.

31. Section 33 of the Interpretation Act, upon which heavy reliance is placed, provides:

“33   Regard to be had to purposes or objects of Acts and statutory    rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

34. This important statutory provision accords with many statements in what might be described as the common law of statutory interpretation. In Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [29]-[41], Bell P (as the Chief Justice then was), with the agreement of Leeming JA and Emmett AJA, explored the role of purpose in statutory construction, referring to the observations of Kiefel CJ, Nettle and Gordon J in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (SZTAL) that:

“Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (Emphasis added.)

35. Bell P noted at [30] that statutory context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy, referring to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (CIC Insurance); Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324]; and SZTAL at [14]. His Honour then noted at [33] that “emphasis on the importance of context in statutory interpretation at least overlaps with and reinforces the need for purposive construction” which was “not so much a matter of “constructional choice” as legislative fiat.”

36. Bell P continued (at [34]-[39]) that:

“Section 33 [of the Interpretation Act] recognises that a statutory purpose or object may not always be found in the express terms of the statute being construed. As McHugh J observed in Saraswati v The Queen (1991) 172 CLR 1 at 21; [1991] HCA 21:

“Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.”

Some statutes will identify the “Objects of the Act” or of a Part or Division of the Act. Others will explicitly spell out the purpose of the Act. These are not “exercise[s] in apologetics” but may give practical content to particular terms used in a statute which may otherwise be elastic in their meaning: Russov Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5].

It will not, however, always be easy to identify or discern the purpose of any given statute or statutory provision, and care must be taken against ascribing an overly broad purpose based upon a priori assumptions as to the legislation’s intended reach: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [28]. Furthermore, a statute may have multiple purposes and, as enacted, may (and often will) give effect to political and policy compromises such that the legislative purpose, whatever may have been intended originally, is obscured: see, for example, Australian Rail Track Corporation Ltd v Dollisson [2020] NSWCA 58 at [31].

…

The purpose of a statute or statutory provision, or the “mischief” which a statute is intended to address, may sometimes also be identified in an explanatory memorandum to a parliamentary Bill or in the second reading speech although these sources of potential enlightenment, particularly the explanatory memorandum, are frequently of limited utility in this regard, often being little more than summaries or paraphrases of provisions of the Bill. Although the occasions when such assistance will in fact be given have been said to be “rare”, they nevertheless sometimes present themselves: Lacey vAttorney-General for the State of Queensland (2011) 242 CLR 573 at 605; [2011] HCA 10 at [86].”

37. In A2 itself, Kiefel CJ and Keane J, after quoting the observation in CIC Insurance at 408, that "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance", went on to say that “[w]hen a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning”: at [37].

38. In the present case, the statutory purpose of s 45(1) has authoritatively been identified by way of seriously considered dicta in the various majority judgments in A2. That being so, and consistent with the important role of purpose in statutory interpretation as emphasised in the authorities cited above, ground 1 of the appeal must succeed and the Appellant’s conviction on Count 1 of the indictment must be set aside and a verdict of acquittal entered on this count in favour of the Appellant.

Ground 2

39. The second ground of appeal related to Count 2 on the indictment.

40. The agreed facts in respect of Count 2 were as follows:

“25.   The complainant in this matter is [BB]. [BB] met the [Appellant] in July 2016 through … her husband’s cousin [who] was in a relationship with the [Appellant] at the time. On an occasion in July 2016, after she had met the [Appellant] a few times, [BB] was at Transitions Erina getting her sons’ haircut. Whilst she was waiting, she spoke with the [Appellant], who told her about the procedures he had been doing.

26.   [BB] arranged with the [Appellant] that the [Appellant] would perform a procedure on her to remove skin from her abdominal area.

27.   [BB] booked the procedure for 7 November 2016. BB had to cancel the 7 November appointment, but rebooked for 10.00am on Sunday 13 November 2016.

28.   On 13 November [BB] attended the appointment with her husband … and the Appellant carried out the procedure on [BB].”

41. The issue of principle raised by the second ground of appeal is cast into stark relief when it is borne in mind, as submitted by Mr Tedeschi, that BB, herself a trained nurse, “knew exactly what it was that she was asking the Appellant to do and what was done was exactly what she had asked to be done.” Or, as it was also put, “the grievous bodily harm was precisely what the complainant willed to be done”.

42. At PJ [258]-[259], the trial judge found the following with respect to the procedure conducted by the Appellant on BB:

“The [Appellant] used a scalpel to cut through the skin into the flesh of the complainant in an elliptical form approximately 20 centimetres long and 6 centimetres wide. The accused removed the skin and flesh described as fatty tissue from the abdomen area of the complainant. The accused then sutured the wound with multiple simple nylon sutures. The wound was dressed…

There was in summary a significantly adverse medical outcome requiring emergency corrective surgery. Part of the cause of this adverse medical outcome was a hole in the abdominal fascia caused I find by the accused imbedding the scalpel in the complainant’s fatty tissue after cutting into it… The result of the repair … [is] significant scarring over about a 20 centimetre width of the abdomen and approximately 1 centimetre wide in a dark colour. It is very noticeable. I have also observed that after the [emergency corrective surgery] the scar is hip to hip but thin and I am told that eventually it will be very faint.”

43. The trial judge found that the procedure performed on BB had resulted in injury which amounted to grievous bodily harm within the definition of that phrase in s 4 of the Crimes Act: PJ [266] and [272]. This was because the procedure involved “a really serious cutting of [BB’s] skin and flesh” and produced a significant scar and harm requiring a hospital stay and medical intervention. The fact that the “original scar was removed and replaced with a more acceptable scar” was held not to detract from the seriousness of the bodily harm that was occasioned by the procedure: PJ [270].

44. With respect to intent, the trial judge at PJ [278] found the following:

“It was an act that was inherently dangerous… The accused voluntarily performed the procedure with a scalpel. He removed a portion of the complainant’s skin and flesh, as he said he would do. There is no other conclusion to draw from the evidence other than that he intended his actions…The fact that the result was much worse than he hoped for does not assist him…”

45. Importantly, and as noted in [40] above, it was also not in dispute that BB consented to the procedure the subject of Count 2 in the broad sense in which consent is used in the criminal law, as explained in Rogers v Whittaker (1992) 175 CLR 479 at 490; [1992] HCA 58. In Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 at [35], French CJ, Crennan, Bell and Keane JJ confirmed that:

“The nature of the consent to a medical procedure that is required in order to negative the offence of battery is described in the joint reasons in Rogers v Whitaker. It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature.”

See also R v Richardson [1999] QB 444 (Richardson) at 450 where it was said that “the concept of informed consent has no place in the criminal law.”

46. After considering several authorities on the point, including the English cases of R v Brown [1994] 1 AC 212 (Brown), R v M(B) [2019] QB 1; [2018] EWCA Crim 560 (M(B)), McCarthy v R [2019] EWCA Crim 2202 (McCarthy) and Richardson, Victorian decisions of R v Stein (2007) 18 VR 376; [2007] VSCA 300 (Stein) and R v McIntosh [1999] VSC 358 (McIntosh) as well as Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s Case), the trial judge held that consent was not available as a defence to a charge of grievous bodily harm contrary to s 33(1) of the Crimes Act. Her Honour reasoned as follows:

“[342]   The accused in this case undertook what was in effect a quasi-medical procedure. He did so in unhygienic circumstance and with little or no regard for any proper informed consent nor any or adequate after care. The complainant was subjected to the risk of infection, bungled or poor surgery, and an inability to deal with the immediate complications.

[343]   There was no public interest in the provision of the services provided by the accused. I respectfully concur with the observations of the Court of Appeal in [M(B)] that the personal autonomy of customers does not provide the defendant with the justification for removing body modification from the ambit of the law of assault. There is no good reason why body modification should be placed in a special category of exemption from the general rule that consent of an individual to injury provides no defence to the person who inflicted that injury if the violence causes actual bodily harm or more serious injury.

[344]   Consent is in the circumstances of this case not a defence. The accused intended harm. The harm amounted to grievous bodily harm. For the reasons therefore given above I therefore find the accused guilty of the charge that on 13 November 2016 he caused grievous bodily harm to BB with intent to cause grievous bodily harm as outlined in count 2.”

47. On appeal, Mr Tedeschi sought to build his case on a philosophical platform of autonomy including bodily autonomy and the social disutility in criminalising injury to a person’s body to which that person has consented in the criminal law sense. As a building block of his argument, he referred to observations made by McHugh J in Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 at [114] to the effect that it was one of the central tenets of the common law that a person is legally responsible for his or her choices, with the corollary of that responsibility being said to be that a person is entitled to make those choices for him or herself and without unjustifiable interference from others (including the State).It is important to note, however, that McHugh J went on to note that complete autonomy was not possible in any organised society: at [114].

48. Mr Tedeschi then referred, in oral argument, to Marion’s Case and the reference in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ to the famous dictum of Cardozo J in Schloendorff v Society of New York Hospital 105 N.E. 92 (NY 1914) (Schloendorff) at 93, that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body…”. Mr Tedeschi submitted that “principle demands to the greatest extent possible that an adult of sound mind ought to have the right to decide what happens to their body” and that “this right ought to include the choice to have a body modification procedure performed by whomever they will to perform it.”

49. On this platform, the philosophical argument was advanced that it was not for the common law to interfere with any procedure being performed on a person’s body, provided that that person consented to it in the broad sense of consent as understood in the criminal law. It was put that it was a matter for Parliament to impair or interfere with any such autonomy, and not for the Court to impose its own assessment as to the existence or lack of any public benefit in consensual body modification, even that which entails what would otherwise amount not only to actual bodily harm, but grievous bodily harm. Mr Tedeschi contended that support for this approach (by which BB’s consent to the procedure performed on her would have provided a defence to an act of grievous bodily harm) was supplied at a very broad level by the majority’s embrace in Marion’s Case of Cardozo J’s dicta in Schloendorff, as well as by the minority judgment of Lord Mustill in Brown and the decision of the New Zealand Court of Appeal in R v Lee [2006] 3 NZLR 42 (Lee).

50. At a less philosophical level, the submission was that:

“What the Crown is asking this Court to do is to in effect prevent persons from having body modifications done by anybody, other than registered medical practitioners, who of course would not be prepared to do such procedures in the first place, particularly procedures such as the insertion of a silicon implant under the skin or scarification or tongue splitting or numerous other body modifications that would never be performed by a medical practitioner.

The effect of the approach sought by the Crown is that all of these procedures would amount to criminal offences because the consent of the client could never operate as a defence to a charge of wounding or grievous bodily harm or actual bodily harm. It is submitted that this approach does not place sufficient weight on the importance of the principle of bodily autonomy or inviolability and does not accord with the values of a modern liberal society.” (Emphasis added.)

51. As often occurs in the course of appellate argument, Mr Tedeschi’s argument became further refined by the stage of his oral submissions in reply. His ultimate submission was that it should be left to Parliament to legislate in this area except where there is an attempt to kill or a serious risk of death. Other than in those two circumstances, the submission ran that consent to the infliction of bodily injury, even of a serious kind falling within the ambit of grievous bodily harm, should be permitted unless overridden by statute.

52. It was submitted for the Crown, on the other hand, that the trial judge correctly directed herself in accordance with the common law of Australia, Canada and the United Kingdom, namely that a person cannot consent to the infliction of grievous bodily harm other than in certain exceptional instances of which the present case was not an example nor was it analogous to any accepted exception. It was further and correctly submitted, moreover, that this was not simply the view of the majority in Brown but also, in relation to cases of consensual infliction of grievous bodily harm, the view of Lord Mustill and Lord Slynn who delivered dissenting judgments. The Director also submitted that personal bodily autonomy was not an absolute value in the law, as the case law recognised.

53. The question whether consent is available as a defence to a charge of infliction of actual and even grievous bodily harm has yielded much academic, philosophical and jurisprudential discussion: see, for example, B Bix “Assault, Sado-masochism and Consent” (1993) 109 Law Quarterly Review 540; D Kell, “Social Disutility and the Law of Consent” (1994) 14 Oxford Journal of Legal Studies 121 (Kell), K J Arenson, “Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen” (2014) 33(2) The University of Tasmania Law Review 300 (Arenson) and A J Watkins, “Score and Pierce: Crimes of Fashion? Body Alteration and Consent to Assault” (1998) 28 Victoria University of Wellington Law Review 371. Dr Kell’s article is of particular value for its close analysis of the majority and minority judgments of the House of Lords in Brown, to which we will return. The question also attracted the attention of the Law Commission for England and Wales: Consent in the Criminal Law: A Consultation Paper (1995), whose proposal (at [4.16]) that the consensual infliction of injury that falls short of seriously disabling injury should in general be lawful, even if intentional, was never adopted by the legislature.

54. The arguments developed by both the Director and Mr Tedeschi involved a detailed analysis of the leading case law from common law jurisdictions. That case law is best tracked through chronologically. At the outset, we make it plain that our consideration is confined to the question of whether consent lies as a defence to a count of infliction of grievous bodily harm. The question whether a person may consent to the infliction of actual bodily harm does not arise for determination.

55. In R v Coney (1882) 8 QB 534 (Coney), a case reserved by the Chairman of the Quarter Sessions for the County of Berkshire, the defendants were consenting participants in bare-knuckle prize-fighting. It was held that, despite consent being given, the fighting was unlawful and constituted assault occasioning actual bodily harm. Cave J (at 539) held that:

426. We do not read McCarthy as requiring a different conclusion. It is plain that the Court in that case considered that the relevance of consent to culpability must depend upon the “real nature” of the consent and the circumstances in which it was given. Whilst her Honour did not consider this aspect of the judgment in McCarthy, her conclusion that the breach of trust here precluded the victims’ consent from mitigating the objective seriousness of the offending is consistent with the analysis in that case.

427. Her Honour was plainly influenced by the fact that consent was itself consequential upon the trust that BB had in the Appellant, someone who she considered to be a member of the family to the extent that “mates’ rates” were offered for the procedure.

428. A significant aspect to her Honour’s findings as to the relevance of consent was the relationship of trust between the Appellant and BB (and CC). We are satisfied that it was open to her Honour to find such a relationship existed having regard to, inter alia, what he told BB about his skill (the second complaint under ground 11).

429. Her Honour referred to BB having given direct evidence of what she said the Appellant told her of his skill when he showed her some photographs on his phone of a similar procedure he had performed on a woman in New Zealand. BB’s evidence was that:

“[W]e went in there for my boys to get a haircut, and I was just messing around, and I've always thought of getting some skin removed off my stomach after the birth of my boys and I voiced it out loud and the [Appellant] had said that he's done that before. And he showed me a picture, or a couple of pictures of a girl in, from New Zealand that had had the same thing as what I wanted to have done, and he said that he could do it for me.”

432. BB’s evidence was that the Appellant had said that he had:

“[Q]uite a good reputation with his, the way he administers his local anaesthetic. He has said, he said either a surgeon that he knows that’s in the industry had said to him that the way he applies his local, like a fanning procedure or something, was amazing and I wouldn’t have anything to worry about.”

433. BB also gave evidence that she was a student nurse and was aware that the Appellant was neither a plastic surgeon nor a cosmetic surgeon, but she was “not overly aware of things that could be done by someone that’s not a plastic surgeon”. She said that she was “quite impressed” with what he told her. She gave the following evidence in cross-examination:

“Q.   Then there was also this conversation on this very same day, you said to Mr Russell “How did you get into it”, and he provided you a long answer where he said that he trained with one of the world's top body modification artists by the name of Howie from America, that he did ten years of training under Howie, and he paid US$15,000 for that training, what do you say about that conversation?

A.   I don't remember anything about that a conversation like that.

Q.   Do you remember any conversation with Mr Russell, on that occasion, about his training or experience?

A.   There were just little things that, from memory, that I had asked, things like why didn't he go - the way that - whatever he was telling me at the time I was, I was quite impressed with what he was telling me and I did state to him “why didn't you go further with your studies and get right into the whole surgery side of things”.

Q.   And I suggest to you that when you asked him why he didn't go further his response was “because I'm more interested in body piercing and the modern primitive movements”, do you agree with that?

A.   No.”

434. BB was asked about what risks were disclosed to her. She said she was told there would be a scar, there was a possibility of keloid scarring and that she should rest and not be active after the procedure. She denied that she was warned of the risk of internal pain, internal bleeding, or the risk of infection. She stated the Appellant said nothing about infection. Nor was she told of the possibility that (other than the risk of keloid scarring) the scarring could turn out poorly in appearance. She said:

“I left there not thinking anything was going to go wrong. There was nothing put into my head that something could go wrong.”

435. When asked whether she thought of the possibility of complications, she said:

“No, I didn’t. I just felt so confident, he made me feel so confident … I was more thinking of having a local anaesthetic put in my belly more than anything else, just my fear of needles that’s all.”

436. BB later said:

“I can’t remember word-for-word but whatever the [Appellant] was saying back then and the pictures that he was showing me he was just so confidant [sic] and he was very convincing. And I just felt like, I looked at him like family and I felt like I was in really good hands and he knew what he was doing, I would have no issues.”

437. The Appellant complains that it was not open to her Honour to find that the Appellant told BB that he had “some surgical training”. BB did not give evidence in those terms but, as can be gleaned from her evidence extracted above, it is clear that the Appellant told her things about his training and experience that impressed her. Further, she said that she asked why he did not go further with his studies and get right into “the whole surgery side of things”.

438. Although we are not satisfied that it was open to her Honour to find that the Appellant told BB that he had surgical training, we are satisfied that he told her that he had “done that before” and that the picture or pictures he showed her were of a girl that “had had the same thing as what I wanted to have done” and that he “could do it for me.”

439. We propose to re-sentence the Appellant on Count 2 on the basis that although he did not tell BB that he had surgical training, he told her that he had experience in terms which impressed her, and which added to the feeling of trust he fostered.

440. The trial judge also found that the Appellant told BB (and CC) that he was “capable of performing the procedures safely”. Again, although he did not use those particular words, we are satisfied beyond reasonable doubt, as her Honour found, that the Appellant convinced BB (and CC) that he was sufficiently skilled to perform the procedures safely. This finding was made in the context of her Honour’s observation that in doing so he created a degree of trust between himself and BB. In the light of the evidence set out above, that finding was open to her Honour and we propose to re-sentence on Count 2 on the same basis.

441. In these circumstances, we are not satisfied that her Honour erred in these factual findings.

442. Finally, as to the assessment of objective seriousness, we would not depart from the finding of the trial judge. We are not satisfied that it falls at the lowest end of the range as the Appellant contends. BB endured a high order of pain and suffered from the injury for ten days until she sought medical assistance. To the extent that the trial judge found the objective seriousness to be “below but not substantially below midrange”, we note the recent decisions of this Court regarding such statements including Towse v R [2022] NSWCCA 252 at [12] and Kapua v R [2023] NSWCCA 14 at [121]-[123]. These decisions were recently referred to by Leeming JA in R v Walker [2023] NSWCCA 219 in which his Honour observed that, without meaning any criticism of the trial judge, distinctions such as “above the mid-range”, “within mid-range” and “below the mid-range, but not appreciably so” are “inherently vague and poorly defined”: at [2]-[3]. Despite this, his Honour went on to observe the following at [3]:

“The self-evidently qualitative, rather than quantitative, descriptions by reference to a range, for all their limitations and imprecision, facilitate a measure of transparency, and thus assist in exposing the basis upon which a sentencing judge exercises a discretion. They may also permit a measure of agreement between the Crown and the offender at a sentencing hearing, or in the absence of agreement, they may assist to sharpen the parties’ submissions on objective seriousness.”

443. We propose to re-sentence the Appellant on the same finding of objective seriousness as her Honour did.

Challenged findings for Count 3

444. Ground 12 is a challenge to the finding of objective seriousness for Count 3 and ground 13 is a factual challenge to the finding regarding CC’s knowledge of the Fetlife site. The Appellant’s position was that the objective seriousness for Count 3 was at the bottom of the range. The following four findings of the trial judge are challenged under these grounds:

1. The factor of consent should have reduced the objective seriousness (ground 12).

2. The fact that CC only became seriously ill after her last appointment with the Appellant should have reduced the objective seriousness (ground 12).

3. There was a reasonable possibility that the intake of drugs by CC played a significant role in her sudden death and her failure to obtain medical treatment and this should have reduced the objective seriousness (ground 12).

4. It was not open to find beyond reasonable doubt that CC was aware of the representations in the Fetlife website (ground 13).

445. We shall consider these questions in turn.

The victim’s consent should have reduced the objective seriousness of Count 3 (ground 12)

446. As with Count 2, the Appellant submitted that the trial judge erred in failing to adequately take into account the fact that the deceased had consented to the procedure. Her Honour’s finding on Count 3 differed slightly from her finding for Count 2. With respect to Count 3, her Honour expressly found that consent was not a mitigating circumstance. The Appellant’s submissions in relation to the relevance of CC’s consent on the assessment of the seriousness of Count 3 were the same as those made in relation to Count 2.

447. The Crown advanced the same arguments in relation to the relevance of CC’s consent on the assessment of the objective seriousness for Count 3 as well and submitted that CC’s consent for the implant could not be considered real or genuine in the manner considered by McCarthy. This is because the evidence established a relationship of trust between the Appellant and CC, the Appellant held himself out to be competent to perform the procedure and he had no process for obtaining consent for body modification works: PJ [190] and [519]. It was submitted that there was ample evidence at the trial about the relationship between the Appellant and CC, the high regard she held him in, her interest in his body modification and the trust she placed in him for her body modification.

448. We have reached a similar conclusion about the relevance of consent as we did for Count 2, whilst accepting that the elements of the offences were different. CC’s consent made the offending less serious than if she had not consented, but it was not a mitigating factor given the relationship of trust the Appellant built with CC. We are satisfied this is consistent with the principles derived from McCarthy.

The fact that CC only became seriously ill after her last appointment with the Appellant should have reduced the objective seriousness (ground 12)

449. The Appellant repeated the submissions on this issue that were made in relation to the conviction appeal, namely, that CC only became seriously ill after he saw her for the last time. He also challenged the trial judge’s finding that she was gravely ill when she last presented to him.

450. The Crown disputed that the trial judge found that CC presented to the Appellant as being “gravely ill” on 10 April 2017. Rather, her Honour merely rejected the submission that CC was her “normal, happy self”: Sentencing Reasons at [22].

451. We have already addressed the evidence of how CC was presenting to her friends and family in the days before her death under the grounds contending the conviction on Count 3 was unreasonable. The same conclusion applies here, namely, she was presenting as concerned, in pain and exhausted to her friends and family. She must have suspected by at least 11 April 2017 that her hand was infected as she filled a prescription for antibiotics that day. But when she expressed this suspicion to the Appellant during her telephone conversation with him later that day, he told her that her hand was not infected; only irritated. We are not satisfied that the objective seriousness for Count 3 is reduced by this factor.

There was a reasonable possibility that the intake of drugs by the deceased played a significant role in her sudden death and her failure to obtain medical treatment, and this should have reduced the objective seriousness (ground 12)

452. Her Honour found at PJ [674] that “[d]rug toxicity may have been a contributing factor.” We have extracted her findings on this issue above at [412]. Her Honour found for the purposes of sentencing the Appellant that septicaemia was the sole cause of death, observing that “[m]any doctors commented that the deceased’s high tolerance to prescription painkillers countered against a conclusion that drug toxicity contributed to her death.”

453. We have found for the purposes of the conviction appeal that the contributing factor of multi-drug toxicity could not be excluded. Although we would re-sentence on this basis, the question is whether such a finding reduces the objective seriousness of the offence.

454. We are not satisfied that any contributing factor of multi-drug toxicity reduces the objective seriousness of the offending. The substantial or significant cause of death was sepsis. As her Honour found, one reason why the multi-drug toxicity did not reduce the objective seriousness was that the Appellant advised CC to take her migraine medication (which we know to be Lyrica) in their last phone call.

It was not open to find beyond reasonable doubt that CC was aware of the representations in the Fetlife website (ground 13)

455. The Appellant submitted that a material finding of fact which informed her Honour’s assessment of the objective seriousness of Count 3 was that the Appellant held himself out to CC as having “full extensive surgical background or training” by virtue of a social media post on the Fetlife site which was a restricted site that was not accessible to the general public. It was submitted that the evidence did not permit such a finding to be made beyond reasonable doubt and that this factual error infected the sentencing exercise to a significant degree. It was submitted that the finding affected, at least in part, the trial judge’s finding that a breach of trust was committed, which was an aggravating factor.

456. The agreed facts before the trial judge included that the Appellant maintained a Fetlife profile which was visible only to registered members of the Fetlife website. Fetlife is an adult social networking website. The “About Me” section of the Appellant’s Fetlife profile states:

“I am a Body Modifier/Piercer … with full extensive surgical background of training.”

457. Her Honour found that it was fair to draw an inference that CC was aware of this restricted post. This was on the basis that she was a member of the “apparent inner circle as referred to by [MA]”, that procedures undertaken on CC were posted on this site by MA, that CC referred to the Appellant as a god and told others of his skill, and that the evidence of the Appellant’s wife was that CC was a close friend of the Appellant.

458. We have already found that CC trusted the Appellant and held him in very high regard. The finding that she would have been aware of the Fetlife post must be considered in the context of the evidence including that summarised at [226]-[235] above. Although it is to be accepted that there was no direct evidence of CC’s knowledge of the Fetlife website, we are satisfied, given the weight of the evidence we have already referred to of CC’s close support for the Appellant, that it was open to her Honour to make this finding beyond reasonable doubt.

Finding of objective seriousness: Count 3

459. Her Honour’s finding of objective seriousness for Count 3 was “below mid-range but not significantly”. Given the broad range of offending contemplated by the crime of manslaughter, it has been held that it is unhelpful to locate the objective seriousness on some metaphorical range. In Paterson v R [2021] NSWCCA 273, Beech-Jones CJ at CL (with whom R A Hulme and N Adams JJ agreed) observed the following in this regard at [32]-[33]:

“Further, in relation to the assessment of objective gravity of an offence, where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania at [110] per Johnson J) and even more so with offences that do not carry standard non-parole periods.

There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to “thro[w] up the greatest variety of circumstances affecting culpability” (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided.”

460. Noting these remarks, and accepting the limitation on placing an act of manslaughter on a range of objective seriousness, we are not satisfied that the objective seriousness for Count 3 is at the “bottom of the range” as the Appellant contends. We propose to re-sentence the Appellant on the same finding of objective seriousness as her Honour did.

Re-Sentence

461. We would re-sentence the Appellant on the facts and factual findings set out above. The Appellant did not have a strong subjective case and very little was put before the trial judge by way of his background. While he had no criminal history, he did not suffer from a mental condition that would reduce his moral culpability, he had not expressed remorse or shown responsibility for his actions and her Honour was unable to assess his prospects of rehabilitation. We find ourselves in the same position.

462. In relation to Count 2, BB endured a high order of pain and suffered from the injury for ten days until she sought medical assistance. In relation to Count 3, the Appellant conducted an inherently dangerous procedure on CC without surgical training or skill. He did not have proper regard for hygiene or infection control, he failed to refer CC for medical attention when her hand became infected, he re-opened the wound, inserted a further implant, and did not provide proper treatment or after care.

463. The comparative cases relied on by the Appellant do not assist; they primarily concern matters where the offender failed to take action to seek medical treatment, whereas in the present matter the Appellant failed to refer CC for medical attention having performed the original procedure himself and having conducted an additional procedure on CC’s hand near the infected site.

464. The Appellant relied on a number of decisions in support of his contention of manifest excess that assist on re-sentence to some extent, but they are very different cases. For example, in R v Eriksson [2001] NSWSC 781 the offender received a combined discount of 50% for her guilty plea and assistance to authorities such that her undiscounted sentence would have been 7 years. Similarly, in R v O’Brien [2003] NSWCCA 121 the offender received a discount of 33% such that his undiscounted sentence would have been 7 years and 6 months.

465. We have had regard to the two additional cases relied upon by the Crown. In Dowling v R [2020] NSWCCA 290, the offender assumed a duty of care by removing the deceased (who had been consuming drugs) from the possibility of others providing help, and then failed to obtain medical attention for him and he died of a drug overdose. The offender had a stronger subjective case than the Appellant. A sentence of 7 years imprisonment with a non-parole period of 4 years and 9 months was imposed. In R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214, the offender scalded her eight month old daughter in the bath and failed to obtain medical assistance. There was no intent to cause harm. The sentencing judge found that the offender’s judgment was impaired by a drug induced psychosis and she was genuinely remorseful. A sentence of 5 years imprisonment with a non-parole period of 3 years and 9 months was imposed after discount for an early plea of guilty.

461. We have found these cases to be of assistance with respect to relevant sentencing principles, but it was common ground that there are no truly comparable cases in this matter.

462. The trial judge did not find special circumstances within the meaning of s 44(2A) of the Sentencing Act. That finding was not challenged in this Court. There was very little subjective material put before her Honour and the Crown did not support such a finding, submitting that there was no material that would justify it. No submission was put on behalf of the Appellant that we would find special circumstances on re-sentence. We propose to take the same approach as the trial judge on this issue.

463. We propose to impose an aggregate sentence in this matter. The indicative sentences are as follows:

1. Count 2:   2 years and 3 months, with a non-parole period of 20 months.

2. Count 3:   6 years and 6 months.

469. We note that the offences of manslaughter and inflicting grievous bodily harm with intent are "serious violence offence[s]" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW) and pursuant to s 25C of that Act the applicant is advised of the existence of that legislation and its application to Counts 2 and 3.

470. The orders of the Court are as follows:

1. In relation to Count 1 the appeal against conviction is allowed, the conviction is quashed and a verdict of acquittal is entered.

2. Leave is granted to appeal in relation to grounds 3, 4, 8 and 9.

3. The appeal against conviction in relation to Counts 2 and 3 is dismissed.

4. The aggregate sentence imposed by Syme DCJ on 4 July 2022 is quashed and, in lieu thereof, the Appellant is sentenced to an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) of 7 years to commence on 15 September 2021 and expire on 14 September 2028 with a non-parole period of 5 years and 3 months imprisonment to commence on 15 September 2021 and expire on 14 December 2026. The Appellant is first eligible for parole on 14 December 2026.

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Amendments

20 November 2023 - Minor amendment to paragraph 1 of headnote. Changed "NSWSC" to "NSWDC".

22 April 2024 - Minor clerical errors at paragraphs [9], [20], [23], [45]-[48], [56], [57], [59], [63], [66], [77], [79], [87].

Decision last updated: 22 April 2024