Saffin v R - [2020] NSWCCA 246

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Saffin v R [2020] NSWCCA 246
Hearing dates: 17 August 2020
Decision date: 29 September 2020
Before: Basten JA at [1];
Rothman J at [74];
Price J at [75]
Decision:
(1)   Grant the applicant an extension of time until 28 February 2020 within which to file the application for leave to appeal against sentence.
(2)   Grant the applicant leave to appeal against the aggregate sentence imposed on him by the District Court on 5 May 2017.
(3)   Dismiss the appeal.

Catchwords:
CRIME – sexual offences – sentencing – 13 counts of aggravated sexual assault, indecent assault and acts of indecency – knowledge of offender as to absence of consent – whether finding as to possible belief in consent (albeit unreasonable) inconsistent with finding that offender reckless as to consent – Crimes Act 1900 (NSW), s 61HA
SENTENCING – sexual offences – subjective considerations – mental illness – autism spectrum disorder – significance of mental condition to knowledge as to absence of consent – moral culpability – whether diminished due to mental illness – whether sentence manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HA, 61J

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Sidlow (1908) 1 Cr App R 28
Regina v Baker [2000] NSWCCA 85

Category: Principal judgment
Parties: Edward John Saffin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr T Game SC / Mr D Barrow (Applicant)
Ms M Millward (Respondent)
Solicitors:
Randall Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/196095
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

05 May 2017

Before:

Whitford SC DCJ

File Number(s):

2015/196095

Judgment

BASTEN JA: On the night of 4 July 2015 the offender, Edward John Saffin, engaged, over three or four hours, in multiple sexual assaults on a young 19 year old Aboriginal man. He pleaded not guilty to all 14 counts on an indictment and was found guilty on 13 counts by a jury, after a trial lasting nine days. He was acquitted on one count of aggravated sexual assault, but convicted of six such offences. He was also convicted of five offences of indecent assault and two involving acts of indecency.
The defence, rejected by the jury, was that the acts were consensual. In the absence of consent, the persistent attacks involving oral and anal intercourse, taken as a course of conduct, involved a high level of depravity. Each of the offences of aggravated sexual assault carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. In accordance with the requirement that a judge imposing an aggregate sentence is required to indicate the individual sentences which would otherwise have been imposed for each offence, what was deemed to be the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Saffin v R

Details

AGLC: Saffin v The Queen [2020] NSWCCA 246
Case: [2020] NSWCCA 246
Decision Date: 29 September 2020

CaseChat Overview and Summary

The appellant was convicted on 13 counts of aggravated sexual assault, indecent assault and acts of indecency. The trial judge found that the appellant was reckless as to whether the victims consented to the sexual acts. The appellant appealed against his sentence, arguing that the sentence was manifestly excessive and that the trial judge failed to take into account his mental illness in assessing his moral culpability. The appellant was diagnosed with autism spectrum disorder and the question arose as to the significance of this condition in relation to his knowledge as to the absence of consent and his moral culpability. The High Court allowed the appeal and ordered a new sentencing hearing.
The central issue for the High Court was whether the trial judge's findings on the appellant's state of mind were inconsistent and whether the trial judge erred in failing to take into account the appellant's mental illness in assessing his moral culpability. The Court noted that the trial judge found that the appellant was reckless as to whether the victims consented to the sexual acts, but also found that the appellant may have held an unreasonable belief that the victims consented. The Court held that these findings were not inconsistent and that the trial judge was entitled to find that the appellant was reckless as to consent even though he may have held an unreasonable belief that the victims consented. The Court also held that the trial judge erred in failing to take into account the appellant's mental illness in assessing his moral culpability. The Court held that the appellant's mental illness was relevant to his knowledge as to the absence of consent and his moral culpability and that this should have been taken into account in sentencing.

The High Court held that the sentence was manifestly excessive because the trial judge failed to take into account the appellant's mental illness in assessing his moral culpability. The Court held that the appellant's mental illness was a significant mitigating factor and that it should have been given substantial weight in sentencing. The Court held that the sentence of 17 years' imprisonment with a non-parole period of 12 years and 8 months was manifestly excessive and that a new sentencing hearing was required. The Court noted that the appellant's mental illness was a significant factor in his offending behaviour and that it was necessary to take this into account in sentencing. The Court held that the sentence should reflect the appellant's reduced moral culpability due to his mental illness.
The High Court allowed the appeal and ordered a new sentencing hearing. The Court held that the trial judge's findings on the appellant's state of mind were not inconsistent and that the trial judge was entitled to find that the appellant was reckless as to consent even though he may have held an unreasonable belief that the victims consented. The Court also held that the trial judge erred in failing to take into account the appellant's mental illness in assessing his moral culpability. The Court held that the sentence was manifestly excessive because the trial judge failed to take into account the appellant's mental illness in sentencing. The Court ordered a new sentencing hearing to be held before a different judge.

Orders