Chen v R

HEADNOTE

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

Zhengkun Chen (the applicant) sought leave to appeal his aggregate sentence for one count of attempt sexual intercourse without consent and one count of assault occasioning actual bodily harm. Following pleas of guilty the applicant was sentenced in the District Court to an aggregate term of 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.

The plea to the attempt sexual intercourse charge was entered on the basis that the applicant was reckless as to whether the complainant was not consenting, rather than that he had actual knowledge of non-consent.

The sole ground for which leave to appeal was sought was that the sentencing judge made a material error in finding that the applicant “acted in a fashion where he was just going to have sex with [the complainant] essentially no matter what”.

The Court (Adamson JA, Fagan and Coleman JJ) held, refusing leave to appeal against sentence:

The impugned finding was not foreclosed by the fact that the applicant desisted from his attempt when the complainant kicked him away. It was open to find that, while proceeding as far as he did, he was reckless about non-consent in the sense of excluding consideration of the complainant’s wishes The applicant’s admission, by his plea, that he was reckless as to whether the complainant was consenting amounted, in the circumstances, to exactly the finding that the applicant submitted was not open: at [16].

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal from an aggregate sentence imposed by his Honour Judge Pickering SC in the District Court on 11 April 2025. He pleaded guilty to the following charges, each of them committed against the complainant at her home at West Ryde on 16 August 2022:

1 Attempt to have sexual intercourse without consent, knowing that the complainant was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW) (maximum 14 years imprisonment, no standard non-parole period; indicative sentence 1 year and 9 months).

2 Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (maximum 5 years imprisonment; indicative sentence 9 months).

2. The indicative sentences took into account a 10% discount that was allowed for the accused having entered his pleas at the call over in the District Court. His Honour fixed an aggregate sentence of 2 years and 3 months with a non-parole period of 1 year and 2 months. Four grounds of appeal were specified in the Notice of Appeal but at the hearing only one ground was pressed, namely, that the learned sentencing judge made a material error of fact in relation to count 1. His Honour concluded that the applicant proceeded with the physical acts that constituted his attempt to have sexual intercourse with the complainant in a state of mind that he was going to have sex with her no matter what, in disregard of whether she did or did not consent. It is said that that finding was not open.

3. The pleas were entered on the basis of an agreed statement of facts, only part of which need be referred to for the purpose of determining the leave application. The applicant was 31 years of age in August 2022. He was self-employed as a Gyprock installer. He had been in a relationship with his wife for 10 years and they had two children. In 2018 the applicant commenced an extramarital sexual relationship with the complainant. She was about 11 years his senior and was aged 42 years at the date of the offences. In 2020, while the applicant’s intimate relationship with the complainant was ongoing, she commenced activities as a sex worker. The applicant was unaware of that until June 2022. When he found out he asked her to stop and offered her financial assistance. She continued nonetheless.

4. On the evening of 15 August 2022 the applicant went out to dinner with friends and consumed a number of alcoholic drinks. From 5:45 pm he made numerous phone calls to the complainant and sent numerous text and voice messages. She was working that night but finished and returned home at about 10:00 pm. She changed into a T-shirt, underwear and dressing gown. She saw numerous missed calls from the applicant. At about 11:07 pm she sent the applicant the following text message, in Mandarin:

I wish you a good farewell, I no longer see you again.

5. The agreed statement of facts continues as follows:

8 The [applicant] and victim continued communicating with each other by phone. In total the [applicant] called the complainant nearly 20 times between 5:45 pm on 15 August 2022 and 12:13 am on 16 August 2022, and sent over 40 text and voice messages.

9 At 11:55 pm the [applicant] told the complainant that he was coming over to her house. The victim was concerned that he would disturb neighbours so she let him in about 12:15 am. He smelt of alcohol and was unsteady on his feet. She told him to stay away from her because the smell of alcohol on him made her feel sick. She then went to her bed and sat with her back against the headboard and the offender went and sat down on the sofa.

6. The applicant berated the complainant for working as a prostitute. She began to cry. The applicant went into the bathroom, then returned and started to take off his shirt. The complainant said, “Why you taking off your clothes? If you want to sleep, go back to your home”. The applicant said, “I cannot go back, I am very drunk, I want to sleep here”. Shortly afterwards, the applicant took off his shirt and pants so that he was wearing only his underwear. The complainant noticed that his penis was erect.

7. The complainant was at that time still sitting at the head of her bed with her legs crossed. In the agreed facts the applicant’s attempt to have sexual intercourse is recounted in these terms:

13 The [applicant] stood in front of the victim. The [applicant] began to touch the victim’s bottom and legs. He removed her underwear and threw it on the floor. He lent over the victim and she felt his penis pushing at the inside of her leg near her vagina. The [applicant] thrusted against the victim’s thigh close to her vagina. This act constitutes the offence. The victim said, “Don’t touch me, you are dirty”.

14 The [applicant] said, “I’m dirty? You’re much dirtier than me, you are just a prostitute who charges $160 per hour. The prostitutes I use charge over $300 per hour, but you only charge $160”.

15 The victim told him, “I don’t want to have sex, I don’t want to have a relationship with you any more, you are dirty”. The victim brought her knees close to her chest and kicked the [applicant] away causing him to fall backwards onto the floor.

8. According to par 16 of the agreed facts, the applicant got up off the floor “after a while” and put his clothes back on. He then approached the complainant again and the assault occasioning actual bodily harm took place. It is not necessary to recite the facts of that offence.

9. By pleading guilty to the first count, the applicant admitted that he knew the complainant was not consenting to sexual intercourse when he pursued his attempt by removing his own clothes, removing her underwear and thrusting himself against her. The agreed facts did not specify whether his knowledge of non-consent took the form of actual knowledge as provided for in par (a) of s 61HK(1) of the Crimes Act, or recklessness as provided for in par (b). The applicant’s counsel insisted, in written and oral submissions, that he had pleaded on the basis that his state of mind was recklessness and not actual knowledge. The solicitor who appeared for the Crown at the sentence hearing withdrew his initial submission in writing that the applicant had actual knowledge of non-consent. He told the judge this:

It’s conceded the plea was on the basis of recklessness.

10. At p 4 of his Remarks on Sentence the learned judge referred to the initial lack of clarity about that point and continued as follows:

Either way, if there was an agreement that it was recklessness, it probably should have been put in the facts if it was going to be agreed. It is to be stated though, as a matter of law, confirmed by the Court of Criminal Appeal in numerous decisions, that recklessness is not necessarily a less serious form of state of mind than actual knowledge. Each will depend on their own facts. Even here, counsel for the offender suggested that the offence only commenced at the time that the victim said, “Don’t touch me, you are dirty,” and that everything up to that point was essentially, if not consensual, in the mind of the offender, consensual.

Again, that was not agreed to by the Crown at all.

11. In the following passage at p 5 his Honour addressed counsel’s submission as to when “the offence … commenced”. The submission was really an argument about the timing of the complainant’s intimations of non-consent and about when actual realisation of her non-consent may have dawned on the applicant:

I cannot possibly sentence on the basis suggested by counsel [for] the offender that the offence only commenced effectively when she has indicated “don’t touch me” because the entire statement of facts is completely contrary to that aspect. She had actually told him the relationship was over. She did not want to have anything to do with him. The facts reveal that she was crying at an earlier stage. He was speaking to her disrespectfully. There is nothing that would have ever indicated that she was consenting to sexual intercourse or any form of sexual intercourse, nor was there any basis that he would have had any other acceptance and that she did not want to have sexual intercourse.

As such, from the sentencing perspective, I am well and truly satisfied beyond reasonable doubt that the time he exited the bathroom and from the first aspect of para 13 [of the agreed facts] onwards, that all of that was done not just without her consent but also in circumstances that the element, even if it amounted to recklessness, which I accept, is made out and occurred and can be established beyond reasonable doubt for all aspects of para 13.

What it then reveals is someone who was attempting to have sexual intercourse without consent.

[Emphasis added].

12. The learned sentencing judge concluded his consideration of the applicant’s knowledge of non-consent at p 6 of the Remarks as follows:

Here, he proceeded to act in this fashion at a time after she was crying, in her home where she had indicated that the relationship had come to an end. In that respect, it has an aspect of him simply not respecting her wishes. He also turned up in an intoxicated state, accepting that intoxication is not a mitigating feature, and in a fairly belligerent fashion inside her place and he acted in a fashion where he was just going to try and have sex with her essentially no matter what, so much is the recklessness that he did not turn his mind to the question of what she wanted. Rather, he was completely focused on what he wanted, and what he wanted was a sexual encounter.

[Emphasis added].

13. His Honour’s conclusion that the applicant manifested an intention “to try and have sex with her essentially no matter what” is another way of saying that he was reckless as to her non-consent. The essence of the quoted findings is that, in assessing the gravity of the applicant’s recklessness, his Honour took into account that the complainant’s non-consent to sexual activity had been clearly conveyed from the moment the applicant entered her home and that her non-consent would have been apparent to him from that time if he had considered her wishes at all. His Honour concluded that the applicant’s actions from when he exited the bathroom, which was when he commenced to undress, were contrary to the complainant’s wishes. The agreed basis that there was recklessness on the matter of consent inherently involved that the applicant gave no thought to whether or not the complainant consented. As his Honour justifiably concluded:

so much is the recklessness that he did not turn his mind to the question of what she wanted.

14. Counsel who appeared for the applicant did not rely upon the written submissions filed in this Court, that were prepared by his predecessor on the brief. In oral submissions he endeavoured to support the appeal ground as follows:

if that proposition's right or that statement by his Honour is correct, that is, that he went inside her place and he acted in a fashion that he was going to try to have sex with her essentially no matter what, how can that be right in circumstances where he commits an act, commits the offence, she kicks him off and that act in itself comes to an end.

15. It was pointed out to counsel that, according to the agreed facts, the complainant made it clear when the applicant came out of the bathroom that she did not want him to get undressed or to have sex with her. The following exchange then took place

FAGAN J: Well isn't that a basis then upon which it was open to his Honour to say, and to find as he did, at [p 6 of the Remarks] that he acted in a fashion indicating he was just going to try to have sex with her essentially no matter what. She said, "If you want to sleep, go home, not here", and he just went into the bathroom and started taking his clothes off.

KARIM: There was belligerence and disregard to her wishes. But not regarding the attempted sexual intercourse. Because once she kicks him the conduct itself comes to an end.

[…]

KARIM: […] the essence of what I'm saying is that if that is right why would he just cease his conduct once she's kicked him off. If it's correct that he was going to have sex with her essentially no matter what he would have proceeded to attempt to sexually assault the victim. He didn't do so, he just ceased, and that was it.

[…]

KARIM: But [what] I'm saying to your Honour is that if it's true that he would essentially go ahead and do it no matter what he would have proceeded with the conduct. His post conduct doesn't support his Honour's findings that he would have done so no matter what, that's the essence of the complaint.

16. There is no substance to this argument. Of course the facts included that the applicant desisted without having completed the sexual act. That is why the charge was one of attempt only. Contrary to counsel’s submission, where an offender has broken off his conduct before penetration, it is open to a tribunal of fact to find that, while proceeding as far as he did, he was reckless about non-consent in the sense of excluding consideration of the complainant’s wishes. Further, the applicant agreed that he was reckless about the complainant’s wishes when he committed the physical aspects of the attempt. Indeed, he insisted upon recklessness as opposed to actual knowledge. In the circumstances of the case, his admission of that mental state amounted to exactly what the learned judge found, namely, that he determined upon making the attempt without turning his mind to “the question of what she wanted” and that he proceeded no matter what her wishes might be up to the point where she kicked him away.

17. The proposed ground of appeal has not been shown to be arguable. The order of the Court is as follows:

Leave to appeal against sentence is refused.

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