Stein v The King

Case •

[2023] NSWCCA 324

•

15 December 2023

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Stein v R [2023] NSWCCA 324
Hearing dates: 1 November 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Before: Wilson J at [1]
Fagan J at [103]
Sweeney J at [104]
Decision:

1. Grant the applicant leave to appeal against the sentence imposed upon him on 13 May 2022.

2. Dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – sexual intercourse without consent – whether sentencing judge erred in assessing objective seriousness of offences – whether sentencing judge erred in assessing applicant’s disability – whether sentencing judge erred by having insufficient regard to applicant’s history of early childhood deprivation – whether sentencing judge erred in assessing applicant’s prospects of rehabilitation and likelihood of reoffending – whether sentencing judge erred by attributing too much weight to harm to the victim – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2), 44(2), 53A

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Evidence Act 1995 (NSW), s 66

Cases Cited:

Alseedi v R [2009] NSWCCA 185

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

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

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

Lawrence v R [2023] NSWCCA 110

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

Sigalla v R [2021] NSWCCA 22

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

WW v R [2023] NSWCCA 311

Category:Principal judgment
Parties: Jacob Stein (Applicant)
Rex (Respondent)
Representation:

Counsel:
M King (Applicant)
V Garrity (Respondent)

Solicitors:
Legal Aid Commission (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/146090
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
13 May 2022
Before:
Baly SC DCJ
File Number(s):
2020/146090

JUDGMENT

  1. WILSON J: On 11 March 2022 Jacob Stein, the applicant, was found guilty by a jury of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), after a trial held between 28 February and 11 March 2022. Such an offence carries a maximum sentence of 14 years imprisonment with a standard non-parole period of 7 years. On 13 May 2022 he was sentenced by her Honour Judge Baly SC to an aggregate sentence of 6 years imprisonment with a non-parole period (“NPP”) of 3 years and 7 months, a sentence against which he now seeks the leave of this Court to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). An extension of time in which to bring his application was also required. The Crown did not oppose the extension and it was granted at the hearing of the matter before us on 1 November 2023.

  2. The offences, committed against one young woman, Ms R, occurred on 21 April 2019 during a single incident. The first count reflected an act of digital - vaginal penetration; the second an act of penile - vaginal intercourse. In imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour specified an indicative sentence of 5 years’ imprisonment with a 3 year NPP for the first count, and a term of imprisonment of 5 years and 5 months with a NPP of 3 years and 3 months for the second count.

  3. The applicant advances six grounds of appeal against the aggregate sentence, as follows:

“1. The sentencing judge erred in her assessment of the objective seriousness of the offences.

2. The sentencing judge erred in her assessment of the applicant’s disability.

3. The sentencing judge erred by having insufficient regard to the applicant’s history of early childhood deprivation.

4. The sentencing judge erred in her assessment of the applicant’s prospects of rehabilitation and whether he is unlikely to reoffend.

5. The sentencing judge erred in the weight attributed to the harm to the victim.

6. The sentence imposed was manifestly excess.”

The Proceedings in the District Court

  1. The applicant appeared before her Honour on 13 May 2022 for sentence hearing. The matter having proceeded to verdict at trial, it was a matter for the court to determine the facts of the applicant’s crimes, consistent with the verdicts of the jury.

The Crown Case

  1. The Crown tendered the applicant’s criminal history, a victim impact statement from the victim in the proceedings, two reports of Dr Anthony Samuels, forensic psychiatrist, a report of Dr Adam Martin, forensic psychiatrist, and a set of proposed facts drawn from the evidence led at trial.

  2. Her Honour found the facts of the offending to be as follows.

  3. On 21 April 2019 Ms R, who had celebrated her 16th birthday the previous day, attended residential premises at Gregory Hills to spend the evening crocheting with her friend, Ms Bunning, at whose home she was to stay the night. Ms R met the applicant, who was some 10 years older, for the first time that evening. The applicant was told that Ms R was 16 years old.

  4. Ms R and her friend spent most of the evening crocheting. The applicant, who was also a visitor at the premises, spent time with his friend Mr Berry, who lived at the house with Ms Bunning, with part of the evening devoted to the exploration of old abandoned buildings in the area.

  5. At about midnight Ms R changed into her pyjamas and went to bed, soon falling asleep. She was woken at about 2am by the applicant, who asked if he could get into the bottom of the bunk beds Ms R was sleeping in, as the top bunk was “covered in stuff”. Ms R allowed him to do so, although she moved closer to the wall as she did not want the applicant to touch her. The applicant got into bed beside Ms R, moving into a “spooning” position behind her. He began to slide his hands up and down Ms R’s hips, before stroking her bottom and genital area over her clothing. Putting a hand inside her clothing the applicant tried to penetrate her vagina with a finger. Ms R told him she was tired and in pain.

  6. Although the applicant stopped trying to penetrate Ms R’s vagina, he continued to touch her thighs and bottom. He then again moved a hand to her genital area, this time inserting his finger into Ms R’s vagina and thrusting it in and out. Ms R told the applicant “no”, but he ignored her and continued. This conduct, which caused Ms R significant pain due to a thrush infection, was reflected by count 1.

  7. The applicant asked Ms R if he could take her pants off. She told him “no”, but he again ignored her. When he placed his penis near her vagina, she told him he could touch her but said, “Just don’t fuck me”. The applicant ignored what Ms R said and thrust his penis into her vagina, causing her considerable pain. This act was reflected by count 2. Ms R was crying throughout this incident.

  8. The following morning, the applicant apologised to Ms R, saying “Sorry if I peer pressured you into anything”. Later Mr Berry took Ms R and the applicant in his car to drive each home; the applicant was dropped off first. As soon as he got out of the car Ms R burst into tears and told Mr Berry what had happened. She told a number of others soon after; she was observed to be crying hysterically as she described what had occurred.

  9. The following day, 22 April 2019, the applicant contacted Ms R by text message. During an exchange of messages Ms R accused him of non-consensual intercourse with her. The applicant apologised and said it would not happen again. He said that he thought she was aware of what was going on.

  10. Ms R complained to police on 18 December 2019 and the applicant was charged in May 2020.

  11. The applicant gave evidence in his case at trial. He gave a completely different account of the events of the relevant evening, deposing that Ms R had initiated sexual activity between them, which he had resisted, as he was tired and did not wish to have intercourse with her. The applicant claimed that Ms R had touched him and “ground” her bottom against his leg, before taking his hand and placing it on her chest. He said she touched his penis and, removing her pants, performed oral intercourse on him before they had penile-vaginal intercourse. Clearly, the jury rejected the applicant’s account as not one that was reasonably possible.

  12. The applicant had no history of criminal offending.

  13. In her victim impact statement Ms R described herself as an “empty shell” who had been made a commodity for someone else’s sexual gratification. She referred to her feelings of self-disgust, as if she could never again be clean, and the pain and nightmares that affected her day and night. Ms R said that she had become disconnected from those around her and was left feeling “numb”, with a part of her stolen away.

  14. The Crown also tendered two reports from Dr Anthony Samuels of 13 January 2021 and 9 June 2021, and a report from Dr Adam Martin of 12 August 2021. Both are forensic psychiatrists.

  15. Dr Samuels saw the applicant at the request of his solicitors on 13 January 2021 to assess his fitness to be tried. He obtained a history from the applicant of earlier diagnoses of “Asperger’s, autism and depression”. The applicant said he had difficulties with understanding “social and non-verbal cues”. He provided an account of a good childhood growing up with his mother, stepfather, and sister. He went to a “normal school” although he had some problems with learning. He completed school with a Life Skills Certificate and subsequently obtained certificates in Horticulture and Transport Logistics through TAFE. He has had some work as a farm hand and in other unskilled positions but was not employed when seen by Dr Samuels.

  16. The applicant said he had seen doctors as a child but not more recently. He described becoming depressed in 2018 after a baby he believed to be his was proved by DNA testing to have no relationship to him. He reported his health to be generally good and, although he sometimes felt depressed, he was “okay” at the time of the assessment. Some difficulty with literacy was reported.

  17. Dr Samuels found the applicant to be somewhat concrete in expression with normal if stilted speech. His memory and concentration were adequate. There was no evidence of thought disorder or any psychiatric disorder. His cognitive functioning was reasonable and IQ in the low – normal range. The applicant was considered fit to be tried.

  18. Dr Samuels reviewed the applicant again on 9 June 2021, with the benefit of relevant medical records, which included reference to a childhood diagnosis of Asperger’s autism. The records noted that the applicant was diagnosed with Attention Deficit Hyperactivity Disorder in 2003 and receives a disability allowance. In July 2007 there was a record of the applicant’s disruptive conduct at school, with behavioural and anger problems noted. In June 2009 he was prescribed an anti-depressant, which he did not take. He was reported to have done “badly” at school and, in October the following year, an incident of self-harm was recorded after unpleasant rumours had been spread at school about him. He had suffered some physical injuries over the years, following skateboarding or cycling accidents.

  19. In early 2019 medical records referred to the applicant being distressed over the question of the parentage of a baby he believed to be his, leading to low mood and sleeplessness. He again reported feeling depressed after being charged with the present matters.

  20. Dr Samuels observed that the diagnoses of Asperger’s and Autism Spectrum Disorder were well documented and some difficulty in picking up “subtle signs of emotional distress” was possible, with the applicant’s ability to interpret verbal and non-verbal cues potentially compromised.

  21. Dr Martin assessed the applicant on 3 August 2021, prior to trial, at the request of the Crown. The applicant provided an account of his childhood similar to that given to Dr Samuels, and referred to diagnoses of “Asperger’s / autism” made when he was a child. His family were very supportive, and he had had the assistance of a teacher’s aide throughout his school years. He said that he finished Year 12 although his HSC was “not marked”. He reported some literacy problems.

  22. The applicant said that he smoked cigarettes and vapes but did not use drugs or drink alcohol other than socially. He has friends and has had steady girlfriends in the past. He told Dr Martin he had a number of hobbies such as video gaming and BMX riding. Dr Martin reviewed the applicant’s medical and educational records.

  23. On assessment the applicant spoke without apparent communication difficulties, and he did not seem preoccupied or perplexed. He did not present to Dr Martin as having any major mental illness or serious mood disturbance. The doctor noted that the applicant lived independently, functioning relatively normally. He observed:

“It had been clearly documented that clinicians have thought that he has presented with features of Autism Spectrum Disorder, although overall, documentation available is brief and lacking detail. Mr Stein clearly had emotional and behavioural problems, and self-describes emotional volatility and having some problems interpreting social cues. Overall, in my view, the information for him having Autism Spectrum Disorder is limited [at least in terms of information made available to me at this stage]. If he has this condition, I would regard it as mild in terms of severity and he appears to be living independently and functioning at a reasonable level in that he has been able to work, engage in relationships and does not require community support. In this limited cross-sectional interview, he did not impress as having significant communication difficulties, and he did not describe unusual or restricted behaviours.”

  1. Dr Martin thought that the applicant had a good understanding of the concept of consent to sexual activity, and he did not have language problems that would curtail his capacity to understand a command “no”. He thought it was speculative to conclude that the applicant had significant difficulties in understanding verbal and non-verbal cues.

The Subjective Case

  1. As noted, the applicant gave evidence at trial denying the account of events given by Ms R and asserting that she had initiated sexual contact. He did not state that he had misunderstood the situation.

  2. The applicant did not give any additional evidence on sentence. He tendered a report from Professor Susan Hayes, forensic psychologist, dated 4 May 2022, and read affidavits from his solicitor, Julian Mufale, as to information provided to Professor Hayes; and from his mother, Melanie Shaw, both sworn on 13 May 2022. He also tendered a reference from a friend, Jamie Pittorino; a paper from the Australian Institute of Family Studies (“AIFS”) concerning “Domestic and Family Violence in Pregnancy and Early Parenthood”; and a leaflet from NSW Corrective Services (“NSWCS”) concerning the Additional Support Units that provide support for disabled inmates.

  3. Professor Hayes assessed the applicant on 28 April 2022 (following his trial) having been asked to comment upon whether he had an intellectual disability and, if so, whether any of the features referred to in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] applied to him. She had access to the reports and trial evidence of Dr Samuels and Dr Martin, a copy of the Crown Case Statement, the medical records previously provided to the psychiatrists, and an affidavit of Ms Shaw sworn on 13 April 2022 (the latter not being tendered on sentence). She did not have the trial transcript of Ms R’s evidence, or trial exhibit B, the record of the text messages exchanged between the applicant and Ms R following the commission of the offences.

  4. Professor Hayes saw the applicant over a period of one and a half hours, noting that the applicant was a poor historian and “vague” about some periods of his life. He was rational and lucid and able to maintain focus. There was no evidence of thought disorder. Family, social, medical, educational and employment histories were obtained from him. The Kaufman Brief Intelligence Test Second Edition (“KBIT-2”) and Vineland Adaptive Behaviour Scales – 3 (“VAB3”) were administered to determine the applicant’s intellectual capacity. The results of the KBIT-2 placed the applicant at the lower end of the range of borderline intellectual disability at a level lower than 97% of his peers. His non-verbal skills were better than his verbal skills. The VAB3 measures adaptive behaviour in three main domains, being communication, daily living skills, and socialisation. The results returned by this testing placed the applicant in the range of mild intellectual disability, functioning at a level lower than 99% of his peers. Professor Hayes noted that the applicant’s:

“verbal cognitive reasoning skills and his adaptive behaviour communication skills are both areas of significant impairment, with communication skills being in the range of moderate intellectual disability.”

  1. She opined that his deficits “may contribute to the commission of the offence in a material way” by having an impact on his ability to “process the verbal interactions between himself and the victim”. The professor noted that people with an intellectual disability tend to be disadvantaged in custody, often being “stood-over” by more able inmates; housed in special units with lesser access to programmes and treatment; and sometimes inadvertently breach prison rules leading to sanctions. She did not regard him as presenting a danger to others. Professor Hayes explained that intellectually disabled prisoners are sometimes housed in an Additional Support Unit, although beds were few and there was often a delay in a prisoner being placed in a specialist unit.

  2. The applicant’s mother, Ms Shaw, said in her affidavit that she had been 15 years old when she fell pregnant with the applicant, to a man with whom she lived for about seven months thereafter. She said that her then partner was violent and sexually and physically abused her, as did his friends. Eventually she fled, returning to live with her father. After the applicant’s birth Ms Shaw moved to a refuge following conflict with her father’s girlfriend. Her former partner found her, and Ms Shaw said that she was again abused, and a gun was held to the head of her baby. When she reported the abuse, the applicant was removed from her care and placed with a foster family, where he remained for three years. On returning to her care Ms Shaw said the applicant found it difficult to adjust, missed his foster family, and was uncomfortable with his mother’s relatives.

  3. At about that time Ms Shaw met her current partner who thereafter assumed the role of stepfather to the applicant. The applicant had no real contact with his natural father until he was 22, when he travelled to Melbourne for a family funeral and met him there briefly. The only contact the applicant had after that occasion was when he received a letter from his father that blamed his children for his then position and enclosed a photograph of his father with a noose about his neck.

  4. During his school years Ms Shaw said that the applicant was allocated to “an IM support unit” in Year 5 and had a teacher’s aide to assist him in Year 7. From 2007 he had the support of a “class mentor” who continues to play an important role in his life. Ms Shaw said that the applicant had been employed but had lost his job after he was found guilty at trial. He continued to reside at the family home, and assisted Ms Shaw with the care of her younger child, who has a form of Down’s Syndrome.

  1. The paper from the AIFS concerning domestic violence referred to statistical research that suggests women are more likely to experience domestic violence during pregnancy and immediately after confinement than at other times, with younger women even more at risk. It identified factors associated with family violence at these times and noted a strong correlation between unintended pregnancies and violence. Domestic violence during pregnancy has been associated with negative health outcomes for the woman, foetus and child, including foetal stress and low birth weight. Newborns exposed in utero to domestic violence were often found to have higher levels of stress hormones at birth, which could be an indicator of future problems. Strategies for intervention were discussed.

  2. Mr Pittorino told the court in his letter that he and the applicant had been best friends since childhood and continued to enjoy activities such as BMX riding together. The applicant and Mr Pittorino had previously formed a car club, the main focus of which was to assist children who struggled at school with social events. Mr Pittorino said that the applicant had always been ready to help others.

  3. The NSWCS document explained the role, eligibility for, and locations of Additional Support Units (which are only available to male offenders).

Remarks on Sentence

  1. In her remarks, delivered ex tempore at the conclusion of the sentence hearing, Judge Baly SC set out the facts of the applicant’s crimes as summarised above and noted the applicable penalties. Her Honour observed that:

“Ms [R] courageously read her victim impact statement to this Court. Whilst she says that she cannot describe on pen and paper the impact of these crimes upon her, she has set out what can only be described as the devastating impact.

The harm done to Ms [R] must be a sentencing purpose that attracts considerable weight in terms of the appropriate sentences.”

  1. Of the applicant her Honour said that he was a (then) 29 year old man with no prior criminal convictions who was, as a person of former good character, entitled to have leniency extended to him. Her Honour summarised the contents of Ms Shaw’s affidavit which she noted was of assistance to her in understanding the applicant’s personal circumstances, and she set out the contents of the reference from Mr Pittorino.

  2. The sentencing judge referred extensively to the opinions and evidence of Dr Samuels and Dr Martin, and set out the conclusions Professor Hayes reached during her assessment of the applicant.

  3. Her Honour considered the objective gravity of the offences, noting that:

“Factors which bear upon objective seriousness include the nature of the act, the duration of the assault, the age of the victim and the offender and any disparity, the impact of the offence upon the victim, and, in my view the moral culpability of the offender in this case is relevant to objective seriousness.

I agree that Count 1 is not by reason only of the fact that it involved digital intercourse, less serious than Count 2 which involved penile intercourse. Both acts caused considerable pain to the victim. But, as the Crown observed, the penile intercourse was for longer, occurred after pain had already been caused by the digital intercourse, and in circumstances where the victim had said no to the offender taking her pants down and specifically told him not to fuck her. Further, she was crying during this event. In my view, it is marginally more serious than Count 1.

As to the offender’s state of mind, although the Crown relied on recklessness at the trial, the evidence establishes that the victim said no to both acts and, specifically in relation to Count 2 said, ‘don’t fuck me’.”

  1. Referring to the applicant’s evidence at trial, her Honour observed that there was “no middle ground” whereby the applicant might be concluded to have been mistaken or reckless as to Ms R’s consent. Her conclusion was that the applicant knew Ms R did not consent to intercourse because she had told him so. Although the offence was not planned, “it was deliberate and opportunistic”. The age differential was of significance in that a 16 year old was confronted and sexually assaulted by an adult.

  2. Her Honour rejected the applicant’s submission that the offence did not involve any humiliation or hurt, stating:

“It clearly did involve physical pain and hurt and in my view it is not the place of lawyers in this Court to presume that this was not a humiliating experience for Ms [R]. In fact, I infer that it almost certainly would have been. To the same end, the fact that Ms [R] remained in the offender’s company that night and the next day is neither here nor there in terms of objective seriousness. The evidence satisfies me that Ms [R] complained immediately after the offender got out of Mr Berry’s car. I infer that at that time she felt able to complain.”

  1. Noting Professor Hayes’ qualified opinion that the applicant’s intellectual disability “may” have causally contributed to the offending, her Honour did not conclude that there was any such link. The offending was neither sophisticated nor planned. It involved the applicant ignoring Ms R’s clear refusal to engage in sexual activity by the repetition of a simple and unsubtle word, “no”. Further, neither the applicant’s case at trial nor his accounts to Drs Samuels and Martin advanced or relied upon any claim of confusion or misunderstanding concerning Ms R’s consent or otherwise to sexual intercourse. The applicant’s case was an assertion that Ms R was the sexual aggressor; there was no room for a later claim of mistake or inability to read a social interaction.

  2. Having rejected any claim of a causal link between the applicant’s disabilities and the commission of the offence, her Honour’s conclusion was that the applicant’s moral culpability was not diminished.

  3. Count 1 was found to fall within the mid-range of gravity for an offence contrary to s 61I, whilst count 2 fell firmly into that category, or perhaps higher. The fact that the offending occurred in the home of Ms Bunning, where Ms R had gone to crochet with her friend and should have been safe, was a feature of statutory aggravation pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.

  4. Her Honour could not conclude that the applicant was remorseful. Although he had expressed remorse in the text messages to Ms R in which he apologised for his conduct, the sentencing judge found that remorse had been “thrown away” in light of his later denials and failure to accept responsibility for his conduct. His prior good character and absence of any criminal history were mitigating features, and his disabilities would make his experience of incarceration more onerous, pointing to a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. It was not possible for the sentencing judge to make any positive finding as to the applicant’s future prospects, because of his refusal to take responsibility for his crimes and acknowledge the harm done to Ms R.

  5. Her Honour found that specific deterrence had some limited role to play in the exercise of the sentencing discretion, as did the principle of general deterrence, which could not be said to be irrelevant. Some partial accumulation was required. Her Honour concluded:

“It is to be remembered that these offences are offences of violence. In this case the offender’s violation of the victim was significant. Not only did she say no she told him she was in pain. He ignored her for his own sexual gratification not once, but twice.

The sentence, notwithstanding Mr Stein’s significant intellectual disability, must be reasonably stern. Each sentence must be a reasonable [sic] stern one commensurate with all the factors including the objective seriousness of the offences, each of which falls in my view into the mid‑range.”

The Application to this Court

  1. As earlier noted, the applicant seeks leave to advance six grounds of appeal.

Ground 1: Asserted error in the assessment of objective seriousness

  1. Although not pleaded in the notice of Grounds of Appeal filed with the Court on 21 August 2023 the applicant advanced two sub-grounds in written submissions, being:

(a) “The sentencing judge erred in finding that the offender’s moral culpability was relevant to her assessment of objective seriousness”; and

(b) “The sentencing judge otherwise erred in her assessment of objective seriousness of the offences.”

  1. These contentions will be addressed as part of the overarching ground 1.

  2. The applicant argues that, in concluding that his moral culpability was relevant to objective seriousness, the sentencing judge erred. He relies upon the explanations given of the relationship between those two features in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (“DS & DM”) and Lawrence v R [2023] NSWCCA 110 as authority for his submission. In the former an argument that the degree of an offender’s moral culpability was always a feature relevant to the assessment of the gravity of the crime was rejected by this Court.

  3. Moral culpability and the objective gravity of an offence are, as a general statement of principal, separate features, each of which must be considered by a sentencing court when determining the proper penalty to be imposed upon an offender. However, the rule is not without its exceptions, a proposition recognised in DS & DM and Lawrence, the authorities referred to, and others. In Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112], Johnson J referred to the matters that may bear upon the assessment of the objective gravity of an offence as including some features that could be regarded as subjective considerations:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305 at 324-325; [1982] HCA 55 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [171]-[172] (Callinan J).”

  1. Another feature that could be regarded as both a subjective feature and one of relevance to the gravity of an offence is an offender’s state of mind, a consideration sometimes encapsulated by motivation, but not always so. When assessing the gravity of sexual offending the state of mind of an offender is a feature that will ordinarily be relevant to both the seriousness of an offence, and the moral culpability of an offender. Whether an offender knew the victim did not consent to intercourse or was reckless to the absence of consent bears upon the gravity of the crime and also the moral blameworthiness of the offender. Generally, the offender who is well aware of the victim’s refusal to participate in sexual activity but proceeds nevertheless will both commit a more serious crime, and be more worthy of blame than the offender who is reckless as to the lack of consent.

  2. It is not without significance that the sentencing judge dealt with the question of the applicant’s state of mind, his moral culpability, and the gravity of the offending in the same section of her judgment. In this instance, the applicant’s state of mind informed both the gravity of the crime, and his personal culpability for it. Although in the portion of her remarks extracted at [43] above her Honour used the phrase “moral culpability”, it is clear from what she said in the following passages, and in the context of the whole, that she was referring to that aspect of the applicant’s moral blameworthiness that was informed by his state of mind. She went on to set out the circumstances of the offending, concluding that the applicant knew of, rather than was reckless to, Ms R’s rejection of his sexual advances. Her Honour observed that her conclusion in this regard was one which carried “some considerable weight in terms of objective seriousness”, and also served to negate the applicant’s submission that his cognitive impairment was causally connected to his offending and thus that her Honour should find that his moral culpability was lessened.

  3. The sentencing judge concluded that the applicant’s moral blameworthiness was not reduced by his impairment because it was not causally connected to his crimes. He had known that Ms R did not want to engage in sexual activity but ignored her wishes. His state of mind elevated his personal blameworthiness and made his crimes more serious than they would have been had his state of mind been one of recklessness. On a fair reading of the whole of her Honour’s remarks, delivered ex tempore, it is clear that these were her Honour’s conclusions. She did not have regard to the applicant’s moral culpability to wrongly elevate the assessment of the gravity of his crimes.

  4. The applicant otherwise complains that her Honour’s conclusions as to the objective gravity of his crimes were not open to her on the evidence. His contentions in support of this sub-ground are, to a degree, semantic, and rely upon a critique of a single sentence.

  5. In her remarks the sentencing judge set out the “factors which bear upon objective circumstances”, including the nature of the particular act of intercourse, its duration, the circumstances in which it occurred, the relative ages of Ms R and the applicant, and the applicant’s state of mind. Of the latter she referred to the applicant’s case at trial, being an assertion in his evidence that it was Ms R who desired and insisted upon sexual activity, in which he was reluctant to participate. She said:

“There was, in truth, no middle ground whereby the accused could have been honestly but not reasonably mistaken, nor, in my view, was the offender reckless. The offender’s state of mind in my view was that he knew that Ms [R] did not consent because she told him so. This was an offence whereby the offender actually knew Ms [R] did not consent. Whilst it was not planned, it was deliberate and opportunistic. This finding carries some considerable weight in terms of objective seriousness.”

  1. The applicant contends that, in the penultimate and final sentences of this paragraph of her remarks, the sentencing judge was in error by attributing “considerable weight” to the deliberate if opportunistic nature of the offending by wrongly balancing it against the unplanned nature of the crimes. That contention relies upon a minute deconstruction of the language used by the sentencing judge which cannot be accepted as legitimate, particularly having regard to the ex tempore nature of the judgment. Sentencing remarks must be read as a whole, rather than by way of a semantic analysis of individual words or sentences. It is not the form of expression with which an appellate court is concerned, but the proper application of legal principle.

  2. Her Honour properly took into account the “facts, matters and circumstances” that bear upon the gravity of the applicant’s crimes in accordance with what was said in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, at [29]. These included the applicant’s actual knowledge of Ms R’s refusal to participate in sexual activity and disregard of her wishes; his greater (chronological) age and stature when compared to Ms R; the nature of the acts of digital and penile penetration; the duration of each act of intercourse; the physical pain caused to Ms R, something she conveyed to the applicant; the unplanned nature of the offending; and the deliberation with which it was committed. Weighing these features, the conclusion of the sentencing judge was that both offences fell into the mid-range of gravity, with count 2 more firmly into that part of the range than count 1. That conclusion was open to her Honour.

  3. This ground is not made out.

Ground 2: Error in the assessment of the applicant’s disability

  1. Evidence of the applicant’s cognitive impairment formed part of his case at trial and on sentence. By this ground, the applicant contends that the sentencing judge failed to give “proper weight” to the opinions of Professor Hayes by preferring the conclusions of Dr Samuels and Dr Martin. It is submitted that, as Professor Hayes alone of the expert witnesses conducted a formal assessment of the applicant’s intellectual functioning, the sentencing judge was wrong to “reject” her opinion that “the applicant’s mental state was causally related to his offending”, particularly with respect to his capacity to interpret and understand verbal and non-verbal cues. It is submitted that, in finding that the applicant was able to understand the word “no”, the sentencing judge oversimplified the evidence as to Ms R’s rejection of the applicant’s sexual advances.

  2. In seeking to make good this ground, the applicant focused on whether or not Ms R gave evidence of having used the word “no” in relation to both acts of intercourse. Any oversimplification rests in that argument, not in any conclusion of the sentencing judge. Her Honour’s assessment of the weight to be given to the opinions of Professor Hayes was, subject to the requirement that her conclusions had to be in conformity with the verdicts returned by the jury, a discretionary matter. The sentencing judge accepted Professor Hayes’ conclusion that the applicant had an intellectual disability with associated impairment in areas of cognitive functioning; she was not required to accept the qualified opinion offered by Professor Hayes as to the possible relevance of the applicant’s impairment to his understanding of the absence of consent by Ms R to sexual activity.

  3. That was particularly so in light of the way in which the applicant advanced his case to the jury. The applicant did not defend the charges by a claim that his cognitive impairment prevented him from comprehending the verbal and non-verbal cues given to him by Ms R. His case was that Ms R initiated sexual activity and persisted in the face of his clear reluctance, with the applicant ultimately persuaded by her to engage in sexual intercourse. In light of his sworn evidence to that effect, it was entirely open to her Honour to reject the opinion expressed by Professor Hayes as to the potential relevance of the applicant’s impairment. The professor opined:

“Mr Stein’s mental health may contribute to the commission of the offence in a material way, because of his intellectual disability and Autism Spectrum Disorder diagnosis, and particularly his deficits in verbal cognitive reasoning skills and adaptive behaviour communication skills. These deficits may have impacted upon his ability to understand and process the verbal interactions between himself and the victim.”

  1. The sentencing judge gave clear reasons for her rejection of that opinion. Her Honour noted its qualified nature, expressed by use of the word “may”. She referred to the simple nature of the communication between Ms R and the applicant, which her Honour concluded was not so subtle that the applicant may have misunderstood it, despite his cognitive impairment. Ms R was clear and straightforward in conveying her lack of consent, using the word “no”. Whilst the applicant is critical of her Honour for so concluding, there was ample evidence of Ms R’s rejection of sexual activity, conveyed in a straightforward way.

  2. In her evidence of 1 March 2022 Ms R told the jury that she had never met the applicant before the evening prior to the offences. She had not had any real discussion with him on that evening, spending her time crocheting and chatting with Ms Bunning whilst the applicant watched car videos and then went out with Mr Berry. She had not seen him again before going to bed and falling asleep. When awoken by the applicant asking to get into the bottom bunk bed with her Ms R allowed him to do so as he told her “there was shit on the top bunk”. She moved closer to the wall because she did not want him to touch her, and faced away from the applicant, with her back to him. Ms R did not respond when he began to touch her until he tried to penetrate her vagina with his finger, at which time she told him that she was in pain and tired. It was open to her Honour to conclude, as the jury must have, that the applicant understood this as a rejection of digital penetration since his response was to move his hand away from Ms R’s genital area. It is immaterial that Ms R did not use the word “no” at that point. She said and did enough to convey her rejection of this activity to the applicant.

  1. When the applicant pulled Ms R’s pyjama pants and underwear down despite her refusal to engage with him, she said, “You can touch me wherever but just don’t fuck me”. The applicant’s case was not that he did not understand these clear words, but that Ms R did not use them. By its verdict the jury clearly accepted Ms R’s account of what was said and rejected that of the applicant. Consistent with the verdict her Honour accepted that Ms R had conveyed her lack of consent. Soon after the assaults, Ms R complained of what had happened, telling others that “Jacob fucked me, and I said no”.

  2. Her Honour characterised Ms R’s refusal of sex as her having told the applicant no. That was a reasonable summary of what Ms R had said and done, including by reference to Ms R’s evidence of the terms of the complaint she made, evidence that was available to go to the truth of the assertion pursuant to s 66 of the Evidence Act 1995 (NSW).

  3. As her Honour observed when considering the weight to be given to Professor Hayes’ qualified opinion, the professor did not engage with “the nature of the offending”. She did not consider the evidence given by Ms R to the jury and did not ask the applicant about any aspect of the evidence. She did not refer to the evidence of Drs Samuels and Martin in which each noted the applicant’s claim that Ms R was the initiator of sexual activity, or the conclusions each had reached that the applicant had an adequate understanding of sexual consent. Finally, her Honour noted that Professor Hayes did not refer to or assess the relevance of important evidence in the trial, being the record of the text messages exchanged between the applicant and Ms R very shortly after the offending, in which the applicant acknowledged “that the victim said no” and apologised for what he had done.

  4. The value of an expert’s opinion is dependent to an extent on the material provided to the expert and upon which the opinion may be based. In forming her qualified opinion, Professor Hayes did not have access to the trial testimony of Ms R, nor was she provided with the record of the exchange of text messages between Ms R and the applicant. She was given the transcript of the applicant’s evidence only after writing her report and offered the bare statement that consideration of the transcript did not alter her opinion. The rationale for that statement was not explained.

  5. Her Honour concluded that the weight to be given to Professor Hayes’ evidence was diminished by reference to the limited material provided to her, and the importance of the information that she did not have access to in forming her opinion, together with the professor’s failure to engage with the applicant’s case or the opinions of Drs Samuels and Martin. That conclusion was in my view both reasonable and appropriate; it was certainly open to her Honour in the exercise of the sentencing discretion. Matters of weight are very much for the sentencing judge. For that reason a ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499 at 504 – 505; [1936] HCA 40, and which can properly be determined by an appellate court: see generally WW v R [2023] NSWCCA 311 at [60] – [65].

  6. Whether this ground is viewed as a legitimate complaint by itself of error, or a complaint more properly directed to a contention that the sentence imposed is unfair, it is not made out. The applicant’s disability was specifically and properly recognised in the conclusions reached by the sentencing judge that Mr Stein would experience hardship in a custodial environment because of that feature, leading to the finding of special circumstances such as to vary the statutory ratio of sentence in the applicant’s favour. That approach was open to her Honour in the exercise of the sentencing discretion.

Ground 3: Error in the weight given to childhood deprivation

  1. By this ground the applicant argues that he presented a “compelling case of early childhood deprivation” and her Honour erred in giving it such limited weight that she did not conclude that his moral culpability for the offending was reduced.

  2. As another complaint directed to the weight given, or not given, to a particular feature, it is best addressed as relevant to an assertion of unfairness in the sentencing outcome. Even so, the applicant has failed to make out his complaint.

  3. The sentencing judge took into consideration the evidence tendered by the applicant of domestic violence against his mother prior to his birth, and the incident that led to the applicant being removed from his mother’s care. She observed that the evidence assisted her in understanding the applicant’s personal circumstances. Her Honour did not go further and conclude that the evidence relied upon to establish childhood dysfunction diminished the applicant’s personal blameworthiness for his crimes. She said:

“The next issue concerns whether the principles enunciated in Bugmy and Munda and other cases including Fernando are enlivened here. There are some circumstances of Mr Stein’s life that meant he did experience disadvantage, even deprivation, when he was an infant. I do accept that violence experienced by a mother during pregnancy may affect and have a long-term effect on a child. In that respect, I have read exhibit 2 [the AIFS document] during the morning tea break. But even accepting that fact, I have ultimately agreed with the Crown, namely the evidence does not enliven Bugmy principles.”

  1. That conclusion was open to the sentencing judge.

  2. There is no rule of law that any deprivation or difficulty in childhood obliges a sentencing court to ameliorate the sentence imposed upon an offender. Although, as here, the authority of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is frequently relied upon to so argue, the High Court did not formulate such a rule. In Bugmy, at [40], the Court said:

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

  1. In the applicant’s case, her Honour was not persuaded that the applicant’s upbringing had been relevantly dysfunctional. Whilst she accepted that there was domestic violence directed to the applicant’s mother when pregnant, and that the applicant himself had been threatened in an incident when he was a baby, his childhood had been otherwise positive and supportive. After some turbulence when the applicant was a very young infant, the evidence was that he had enjoyed a relatively stable upbringing. The foster home in which he was placed for the first 3 years of his life appears to have been positive and loving. There was a period of disruption when the applicant returned to his mother’s care and settled into a new environment, but he thereafter enjoyed a loving and supportive home, with his mother and stepfather providing him with a caring environment. Nothing in Ms Shaw’s affidavit, the AIFS paper, or Professor Hayes’ report, could establish that the events of gestation and very early childhood had had any material impact upon the applicant. There was simply no evidence of the sort of traumatic and damaging life described in Bugmy, and the conclusion reached by the sentencing judge was open to her.

  2. That is particularly so in circumstances where the applicant’s case was not one where he asserted that childhood adversity or cognitive impairment had any role to play in the incident reflected by the offences of which the applicant was convicted. His case was not that early dysfunction or cognitive impairment had left him unable to understand sexual consent or to control his sexual urges; it was that such sexual activity as had occurred had been initiated and consented to by Ms R. Necessarily, that had some impact upon the weight to be afforded to his claim on sentence that his responsibility for crimes he denied had occurred in the way particularised should be found to be reduced.

  3. Her Honour was correct to reject the contention that so-called “Bugmy features” had any role to play in the sentence proceedings, other than by assisting the sentencing court to fully understand the applicant’s subjective circumstances. The applicant’s childhood was not of the seriously deprived or disadvantaged type that led to the development of “the Bugmy principle”.

Ground 4: Error in assessing the applicant’s future prospects

  1. The applicant’s contention is that the sentencing judge gave “undue weight” to the applicant’s failure to accept responsibility for his crimes and, in effect, punished him for his plea of not guilty at trial. Both propositions must be rejected.

  2. Her Honour’s conclusions as to the applicant’s prospects for rehabilitation and likelihood of reoffending were in fact largely neutral, in that she could make neither a positive nor a negative finding with respect to those features. She observed that it was difficult to reach any conclusion because the applicant “has not accepted responsibility for what he did, nor expressed any insight into the harm done”. Her Honour concluded:

“[…] I cannot find even on balance that he has good prospects of rehabilitation or is unlikely to reoffend”.

  1. Referring to Alseedi v R [2009] NSWCCA 185 and Sigalla v R [2021] NSWCCA 22, the applicant argues that remorse is not a pre-requisite to a conclusion that an offender has positive prospects of rehabilitation or is unlikely to re-offend. Whilst that proposition is undoubtedly correct, its existence does not dictate that an offender who maintains his or her innocence will always be entitled to favourable conclusions being reached by a sentencing court with respect to these features; it will always be a matter for assessment of the particular circumstances.

  2. In the applicant’s case her Honour referred to the features relevant to that assessment. She noted that the applicant had apologised for his conduct and expressed some regret for it in the text messages he sent to Ms R, although she ultimately concluded that the significance of that evidence had been diminished by the applicant’s claim at his trial that his messages were not a genuine acceptance of wrongdoing. She had regard to the applicant’s former good character, the absence of any criminal record, the family support available to the applicant, and his acceptance of the need for counselling, as relevant and positive features, each of which was considered. However, even taking those features into account, the sentencing judge could not make positive findings that the applicant had good prospects for the future or was unlikely to reoffend. Those conclusions were open to the court.

  3. The failure to acknowledge wrongdoing, and to accept responsibility for it, are features of relevance to the assessment of an offender’s prospects. The offender who will not admit wrongdoing is very likely to be compromised to some degree in his or her capacity to reform the conduct that led to the commission of the offence. That was her Honour’s conclusion in this instance.

  4. That she reached that conclusion cannot be regarded as a form of punishment wrongly meted out to the applicant for entering his pleas of not guilty. It was not the applicant’s pleas that her Honour gave some weight to, but the positive case he advanced in which he falsely blamed Ms R for initiating sexual activity in the face of his reluctance to participate in it. It is always open to an accused person to enter a plea of not guilty and advance what was once described as “a negative defence”, that is, a defence which tests the strength of the Crown case and seeks to highlight discrepancies or inconsistencies in the evidence, without advancing an alternative case, as the applicant did here. No accused person can be penalised by a sentencing court for putting the Crown to proof. However where, as here, an accused person does advance a positive defence, by suggesting or deposing to a particular set of circumstances, a sentencing court is entitled to consider the case put at trial when determining features relevant to sentence. The nature of the applicant’s case was of direct relevance to his prospects for the future, insofar as it did not allow for any favourable finding that the applicant had demonstrated insight into his offending conduct. Without insight, there remains a risk of recidivism. That was not the conclusion of the sentencing judge in this case; rather, her Honour found that she could not make any positive findings as to rehabilitation and future good conduct. No error has been shown in that conclusion.

Ground 5: Error in the weight attributed to the harm done

  1. In another complaint about the weight afforded to a particular feature the applicant submits that “undue weight” was attributed to the harm done to Ms R by the offences committed against her. He points to part of the sentencing remarks, and to something said by her Honour to the jury at the conclusion of the trial, to support his argument. The impugned passage from the sentencing remarks is:

“Ms [R] courageously read her victim impact statement to this Court. Whilst she says that she cannot describe on pen and paper the impact of these crimes upon her, she has set out what can only be described as the devastating impact.

The harm done to Ms [R] must be a sentencing purpose that attracts considerable weight in terms of the appropriate sentences.”

  1. From her Honour’s comments to the jury after the delivery of its verdicts the applicant highlights the following as evidence that the judge was “personally affected by the trial evidence of the victim”:

“I do want to say two things to you before I discharge you. Firstly, it was a distressing experience watching Ms [R] give her evidence, I acknowledge that. And I acknowledge that that may have an impact – no doubt, have an impact on you. If you want to, you should take advantage of a counselling service that is free of charge to you. You’ll be given a brochure about that.

But I stress that I am well aware that that was distressing. It was distressing for me and no doubt for you. So, if you feel the need to take account of the counselling – take advantage of that service, please do. So, that’s the first thing I want to say to you.”

  1. The first complaint concerning her Honour’s remarks on sentence is a purely semantic one; the second complaint about the remarks to the jury mistakes the functions of a trial judge with the functions of a sentencing judge. Neither has merit.

  2. In the former, her Honour was doing no more than giving proper attention to the harm done to Ms R, that being one of the purposes of sentencing provided for by s 3A(g) of the Crimes (Sentencing Procedure) Act. Whilst her Honour referred in the course of her remarks to the contents of Ms R’s victim impact statement, she could have made the same observation if no victim impact statement had been received. It should not be a matter of surprise or comment that a sentencing court might conclude that a victim of sexual assault has suffered harm, even devastating harm; it is the long experience of the criminal courts that sexual violence ordinarily causes great damage to the victim of it. There can be no error in referring to that feature of sexual offending.

  3. Contrary to the applicant’s submission, the use by her Honour of the adjective “devastating” does not establish that the sentencing judge made a finding that the harm done was much greater than that which might be expected such as to constitute “substantial harm”, thus expressing a conclusion that a feature of statutory aggravation provided for by s 21A(2)(g) of the Crimes (Sentencing Procedure) Act had been made out. Devastating harm to the victim of sexual offending is exactly what might be expected to be occasioned by the commission of an offence of sexual assault. That is one reason the legislature has seen fit to penalise such offending with a maximum term of 14 years imprisonment and a SNPP of 7 years. Sexual crimes are of their very nature serious and do great harm. There could be no error in her Honour acknowledging that harm.

  4. As to reliance upon her Honour’s comments to the jury at the conclusion of the trial as evidence that the sentencing judge was “personally affected” by Ms R’s testimony, that complaint must be very firmly rejected. It entirely mistakes the separate and distinct role of the trial judge with that of the sentencing judge.

  5. It is right and proper for a trial judge to acknowledge the possible impact upon jurors of the evidence given at trial. Our criminal justice system regularly exposes jurors to evidence of a disturbing and traumatic nature, which is highly likely to take a personal toll on at least some jurors. Criminal lawyers can sometimes lose sight of the fact that, for those not familiar with and largely inured to the horror that typically attaches to crimes of personal violence, listening to a witness describe such a crime or its aftermath can be extremely distressing, and can lead to some level of trauma for the listener. Recognition of that fact has in modern times led to the establishment of a counselling service provided without charge to jurors under the auspices of the Office of the Sheriff. It is always important for a trial judge to acknowledge the possibility that jurors may suffer some level of vicarious trauma from serving on a jury in a trial involving an allegation of violent crime. It is equally important for the judge to encourage jurors to take advantage of the available counselling services if required. Most trial judges will as a matter of ordinary practice say something very like the observations made to the jury that heard the applicant’s trial. That is done to discharge the judge’s duty in managing the jury, as much as from a sense of common humanity; it should not be taken to be evidence of some personal bias held by the judge which will later be visited upon the offender at sentence. It does not serve that function in the applicant’s case.

Ground 6: Manifest excess

  1. The applicant relies heavily on the errors asserted by grounds 1 to 5 to establish that the sentence imposed upon him is plainly unjust. To that extent this ground cannot be made out, as I have already concluded that the errors complained of have not been established. He otherwise contends that the sentence itself is demonstrative of error. That contention too must be rejected.

  2. The principles to be applied to a ground asserting that a sentence is manifestly excessive are well established. In Hughes v R [2018] NSWCCA 2 at [86], this Court said:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that this Court might have exercised the sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].”

  1. The applicant calls in aid sentencing statistics published by the Judicial Commission for offences contrary to s 61I of the Crimes Act, in the period 24 September 2018 to 31 December 2022, for an offender with no criminal record who was convicted after trial, based on a sample size of 53.

  2. Even setting aside the ordinarily cautious approach appellate courts should take to the use of sentencing statistics as evidencing the inadequacy or excessiveness of a sentence imposed, the statistics cited here are particularly unhelpful, in that they refer to offenders who were sentenced for a single offence contrary to s 61I, rather than for two such counts, as was the applicant. The features that are of assistance in assessing the complaint of an excessive sentence are the maximum penalty and SNPP for an offence of sexual intercourse without consent, being 14 and 7 years respectively; the gravity of the offences, being offences assessed as falling within the mid-range; the number of offences, being two, and any requirement for some level of accumulation; and the subjective case advanced.

  3. Taking those features into consideration, an aggregate term of 6 years with a NPP of 3 years and 3 months cannot be regarded as unjust. The NPP represented the minimum period required to be served to reflect the gravity of the crimes, having regard to the subjective case. It does not bespeak error. Nor does the overall term evidence some misapplication of principle.

  4. This ground cannot be made good.

Conclusion

  1. For the reasons given the orders I propose are:

  1. Grant the applicant leave to appeal against the sentence imposed upon him on 13 May 2022.

  2. Dismiss the appeal.

  1. FAGAN J: I agree with Wilson J.

  2. SWEENEY J: I agree with Wilson J.

**********

Decision last updated: 15 December 2023

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Cases Citing This Decision

3

R v Widdison [2024] NSWDC 601
R v Jackson [2024] NSWCCA 156
Director of Public Prosecutions v Griffiths (No 1) [2024] VSC 264
Cases Cited

25

Statutory Material Cited

4

Alseedi v R [2009] NSWCCA 185
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37