Fisher v R; R v Fisher

Background

1. The complainant said that she had known Ryan for 10 years and that they had had an "on-again, off-again" intimate relationship for the past two years. Ryan had arranged a birthday celebration for himself at a hotel in Baulkham Hills on the evening of 25 January 2018.
2. At 7.30am on 25 January 2018, when the complainant finished her night shift as a nurse, she returned to her parents' house in Baulkham Hills and fell asleep on the lounge for about three hours.
3. On the afternoon of 25 January 2018, the complainant went to Nicole's parents' house in Castle Hill. They were joined by Nicole's partner, Aiden, at about 4.30pm. Between 4.30pm and 7.30pm, when they left for the hotel, the complainant consumed in the order of three Vodka Cruisers.

The gathering at the hotel in Baulkham Hills

1. When the complainant arrived at the hotel, she estimated that there were between 20 and 30 people there for Ryan's birthday, some of whom she recognised. Ryan played Rugby League for the Toongabbie Tigers. The complainant recognised some of Ryan's teammates at the hotel that night because she had previously gone to watch him play. She did not know the applicant.
2. Dave, who also played for the Toongabbie Tigers, picked up the applicant and another team member, Dean Milroy, who all went to Ryan's birthday gathering at the hotel. Dave recalled that they arrived at about 7.30pm.
3. In the five hours between 7.30pm and 12.30am, while the complainant was at the hotel, she consumed in the order of 10 mixed drinks of vodka, cordial and water. Until about 11pm when Nicole and Aiden left, the complainant was with them. From time to time, Ryan approached the complainant and kissed her on the lips. In cross-examination, the complainant agreed that she and Ryan did not spend much time together that night. She explained, "[i]t was his birthday. He was talking to everyone, all over the shop."
4. Nicole and Aiden left together at about 11pm to return to Nicole's parents' place. According to Nicole, the complainant told her that she was going back to Ryan's place after the party. Nicole's evidence was that, before she left, she told Ryan to look after the complainant.

The resumed party at Ryan's house after the hotel closed at 12.30am

1. At about 12.30am, when the hotel closed, the complainant and another man called Joshua (who was Ryan's housemate, but not a team member) caught a taxi to Ryan's house, which was in Castle Hill, about 10 minutes' drive from the hotel. The complainant agreed in cross-examination that she had sent a text message to Ryan at 12.55am (although she had no particular recollection of doing so), saying words to the effect of "Everyone has left me. I don't want to bother you but is it all right if I come back to yours and stay the night?" Ryan responded by agreeing that she could.
2. Dave, the applicant and two other team members, Jack and Matt, caught an Uber from the hotel to Coles Express to get cigarettes and food before arriving at Ryan's house at about 12.45am. They carried three cartons of beer into the house. Dave agreed that it was common for men who played for the Toongabbie Tigers Rugby League Club to congregate at Ryan's house and drink substantial quantities of alcohol. He recalled at least two previous occasions when the applicant had gone into Ryan's room after drinking too much and he had gone into the room and tried to wake him up. Ryan also recalled two previous occasions on which the applicant had passed out on the bed in his bedroom at previous gatherings. On neither such occasion had he asked Ryan's permission to do so. The applicant gave evidence to similar effect. He said in cross-examination that on one prior occasion when he had slept on Ryan's bed, a woman had been there.
3. Dave noticed that there was only one woman on the premises. He did not know her but saw her on the porch, talking with Simon, when he arrived. Dave knew Simon to be a friend of Ryan's, and Joshua.
4. The complainant estimated that there were about 20 people at Ryan's place, of whom she was the only female. She sat on the porch and spoke to two men, Simon and David, as well as to Ryan. She sat in the same seat for about two hours and did not even go to the toilet inside. She did not feel comfortable going inside as she did not know many of the people who were inside. From time to time Ryan would come out to the porch and kiss her on the lips. The complainant did not kiss anyone else that evening (apart from in the course of the events which are the subject of the charges). She was not in a relationship with anyone apart from Ryan at the time.

The complainant's evidence

1. The complainant slept on her stomach with her face in the pillow. After falling asleep, the next thing she recalled was the doona being pulled off and her jumpsuit coming off her shoulders and being pulled down with her underpants. She assumed that Ryan was getting into bed with her. She did not question what was happening because it was something that occurred quite frequently; that she would go to bed before Ryan did and he would come in and they "would be intimate." She went from her sleeping position, when she was lying on her stomach, and turned over onto her back after the person grabbed her on the hip. Nothing was said. The complainant was still sleepy.
2. The complainant's legs were pulled apart. She did not resist, believing the man to be Ryan. The man began licking her vagina for two to three minutes. She felt that he "spat on [her] down there", which she thought was unusual but attributed it to Ryan's intoxication. She was, at that time, "still really sleepy". She was "still tired" and her arms were just down beside her. The only physical contact between her and the man in the bed was that his tongue was on her vagina. This was the conduct constituting count 1 on the indictment.
3. In cross-examination, the complainant agreed that she had told police when she was interviewed on 26 January 2018 that she felt her jumpsuit being pulled down while she was still on her stomach and that the "person" had performed oral sex on her vagina for about one minute before pulling her arm and turning her over. The person had then continued with oral sex for about two to three minutes. She agreed that there was a "slight difference" between what she had told police and her evidence in chief. She also agreed that in her statement, which was taken by police on 27 January 2018, she had said that the person had grabbed her on the torso to turn her over.
4. After about three minutes, the man's body came up towards her and his penis entered her vagina and thrust back and forth. This was the first time since the man had come to bed that the complainant opened her eyes. The complainant noticed that the man's chest was very stiff. Although he grabbed her breast with his hands, he "felt very far away from [her]". She put her arms out to grab him to come closer so that she could give him a kiss. She detected that he was wearing a T-shirt. The kiss, which took place with lips closed, lasted for less than a second before the man pulled himself away from her again. In cross-examination, the complainant said she could not remember who had pulled away first. At that point the man got up and moved away, extracting his penis from her vagina in the process. This was the conduct constituting count 2.

The applicant's evidence of the events in the bedroom

1. The applicant said that, at some stage in the evening, he went into Ryan's bedroom to have a sleep as he was feeling sick in his stomach. He did not ask Ryan before going to his bedroom for that purpose, and had done that on the two prior occasions that he had been to Ryan's house.
2. As he approached the room, the door was closed and the light was off. He opened the door and saw that someone was in the bed, lying on top of the sheet and under the blanket. The blanket was covering the shoulders of the person and half of the person's head. He went to the bed and lay down on the other side of the bed on top of the covers. He was clothed at the time. The room was dark. He went to sleep.
3. The applicant said that he was woken by the other person "spooning" and "cuddling" him. He felt her rubbing his penis with her hand on top of his shorts. He did not know who the person was and it did not cross his mind to find out.
4. The applicant said that he turned towards the person and started to kiss her. This continued for about five minutes. She tried to put her hand in his shorts but his shorts were too tight. He tried to take his shorts off and heard the change falling out of his pocket, as well as his phone. His underpants came off with the shorts. According to the applicant, he said, "There goes thirty thousand dollars in change", which made the woman laugh. They continued to kiss and she proceeded to play with his penis. She was fully clothed. He was trying to put his hand down her pants but he could not work out how to do it because it was "super dark". He told her that he was going to lock the door. He got up and tried to lock the door but, when this proved impossible, he returned to the bed and found her naked. He was still wearing a black T-shirt. By this time, according to the applicant, the woman was lying on her back in the middle of the bed. He continued to kiss her and tried to "have sex with her but it wasn't going to happen" because she "wasn't wet at all."
5. The applicant's evidence was that he decided to "give oral sex." He said that while his mouth was on her genital area she was moaning, rubbing his hair and touching his head. After about five minutes he climbed back on top of her and proceeded to have sex by penetrating her vagina with his penis. She was moaning and kissing him "the whole time" and he was "sucking her breasts as well". He explained that because of a basketball accident when he was young, he had several operations on his nose, which resulted in additional bone being inserted into his nose, with the consequence that his nose was "rock solid". He said that because he and the complainant were kissing, their noses would have touched and his nose would have touched her cheek.

The immediate aftermath

1. The complainant described herself as going "into a state of shock and just grief" as soon as the man left the room. She went back to the bed and sent Ryan a message via Facebook at 5.35am which said, "Please come here for a second." She then rang him and asked him if he had just come in and had sex with her. She was crying. He responded, "What the fuck is going on?" He subsequently responded that he was in Baulkham Hills but would return home. The Crown tendered the Facebook messages between them. According to Tim (who was at his home with Ryan), Ryan told those present that he had just received a message from a woman asking, "Was that you that just come in [sic] and fucked me?" Tim said to Ryan, "Well, it can't be you mate." Ryan immediately said, "Mate, I've got to go." Tim estimated that Ryan had been there for "two drinks", which he equated to "roughly half an hour".
2. After the complainant had spoken to Ryan on the phone, someone else came into the bedroom. The complainant screamed, "Fuck off, fuck off, leave me alone." The person left and the complainant got off the bed, changed and sat against the door. She was aware of other people trying to get into the room. She continued to hold the door closed by sitting with her back against it.
3. According to Dean Catliffe, he was looking for Ryan and had gone to Ryan's bedroom to find him. When he went to open the bedroom door, he heard a woman's voice, saying, "Can you fuck off?". Robert also recalled that when he tried to open the door to the bedroom, he heard the same response.
4. The complainant also phoned Nicole and Aiden and told Nicole that someone, who was not Ryan, had come into Ryan's room and had sex with her. She was crying hysterically as she spoke to them.
5. Dave recalled that, on the morning of 26 January 2018, Ryan phoned Jacob, another friend who was at Ryan's house. Dave could hear because Jacob had put him on speaker phone. Ryan said, "What's going on in my house?", to which Jacob apparently responded, "What do you mean?" Ryan said, "Something's going on in my bedroom, can you go and check?" Dave and Jacob went to Ryan's bedroom but they could not open the door because someone was sitting behind the door. According to Dave, they heard a voice from inside the bedroom telling them to go away. Jacob gave evidence to the same effect.

The departure of the complainant from Ryan's house

1. According to the complainant, Ryan consoled her before walking with her out to the Uber, which was waiting outside. Dave, who had stayed the night at Ryan's house, saw that the woman he had noticed the previous evening on the porch was crying as she was being taken out to the front of the house by Ryan to be put in an Uber.

Discussions at Ryan's house after the complainant's departure

1. Ryan did not accompany the complainant to Nicole's house in the Uber. Instead, he stayed at home with those of his friends who remained. He returned to the patio where, according to Robert, the following men were present: Robert, Dean Catliffe, Dave, Jacob and the applicant. Jack was still sleeping on the couch, where he had passed out earlier that night. Ryan said to the group of men that someone had had sex with "that girl while she was sleeping in the room." According to Robert, each of them had denied it, including the applicant. The applicant's denial was relied on by the Crown as evincing a consciousness of guilt. In cross-examination, Robert accepted that, because of his state of intoxication and the passage of time, he could not recall the exact words each man had used to deny having had sex with the woman in Ryan's bedroom. According to Dean Catliffe, the applicant had said, in the course of the discussion, that he had been in Ryan's bedroom.
2. Jacob's recollection was that Ryan had told the group of men who had assembled on the patio that the complainant was "gonna go to the cops". Jacob's evidence was that he could not remember what anyone had responded when Ryan put the allegation to them. In cross-examination, Jacob agreed that he had not told the police that Ryan had told them that the complainant was going to call the police and agreed that he did not have a recollection of Ryan saying that. According to Ryan, he asked the applicant what had happened, to which the applicant answered, "I don't know."

Events concerning the complainant after her departure from Ryan's place

1. According to Nicole, the trip from Ryan's house to her house took about five minutes in a car. When the complainant arrived at Nicole's house, she had a shower and changed into clothes which Nicole lent to her. The complainant told Nicole and Aiden what had happened (oral sex, that the man had spat on her genitals and had sex with her). Nicole called the police, who came to her house and spoke to the complainant.
2. The complainant told police what had happened and gave them the clothing she had been wearing at the relevant time. Photographs of the clothing were tendered by the Crown. The police arranged for the complainant to go to Blacktown Hospital for forensic swabs to be obtained. After the testing had been completed, Nicole and Aiden took the complainant home to her parents' place in Baulkham Hills. According to Nicole, the complainant told Nicole that when she had kissed the man, it felt a bit strange. Nicole accepted in cross-examination that she had told police, in her statement made on 16 September 2019: "I remember that [the complainant] had said that kissing him felt weird ..."
3. The complainant accompanied the police to Ryan's house. He was still there at the time, although he left at 10.30am to go to an Australia Day party. The complainant and Ryan have not seen each other since, although they have been in occasional contact via text message.
4. The Crown also tendered photographs of, and film taken at, Ryan's house and extracts from CCTV footage which had been taken at the hotel where the birthday party had taken place that evening.
5. The Crown called Dr Sienna Collins to establish the overwhelming probability that the DNA in the semen detected in the high vaginal swab was that of the applicant. There was no issue about this evidence or that the applicant had had penile/vaginal sexual intercourse with the complainant on 26 January 2018, as confirmed by the applicant's trial counsel in his opening.

The closing submissions and the summing up

1. Both the Crown and the defence made closing submissions on 12 February 2020 in accordance with the way they had opened their cases.
2. The summing up commenced shortly after 2pm on 12 February 2020. Early in the summing up, the trial judge gave the jurors a document marked MFI9 which set out the elements of the counts on the indictment. The document identified the elements (to which there is no challenge in this Court) as follows: "1. That at the time and place alleged the accused had, in the instance of the particular charge, sexual intercourse with the complainant … 2. That in the instance of count 1 that the act of intercourse was without consent on behalf of the complainant .... … As separately considered also; That in the instance of count 2 was that the act of intercourse was without consent on behalf of the complainant … …. 3. That the accused knew that the complainant … did not consent to the sexual intercourse in count 1. As separately considered that the accused knew that the complainant ... did not consent to the sexual intercourse in count 2. The accused's state of mind: In the present context, in each count, as separately considered, the Crown must prove beyond reasonable doubt that the accused was either: (a) aware that ... did not consent to intercourse with him because of a mistake as to the accused's identity; or (b) reckless as to the issue of consent on one of two bases. They are either: i. that the accused simply failed to consider whether or not the complainant … was consenting to sexual intercourse with him, but proceeded nonetheless, even though there was a risk that the complainant was not consenting in the circumstances as would have been obvious to someone of the accused's mental capacity if he had turned his mind to it; or ii. that the accused's state of mind was such that he realised that there was a possibility of the complainant not consenting to sexual intercourse with him, but the accused proceeded regardless of whether she was consenting or not; or (c) the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse If you come to the conclusion in a count, as separately considered, that the complainant … has merely submitted to intercourse and consented only in that limited sense under a mistaken belief as to the accused's identity, the complainant is taken not to have consented in law and the accused is to be regarded as knowing that the complainant did not consent to sexual intercourse if you find that the accused knew or was reckless to the complainant holding such a belief. In relation to (c), above, you must first determine whether the accused honestly believed the complainant consented and if so, to then determine whether there were reasonable grounds his belief in the circumstances of the case. For the purpose of making any finding regarding the accused's state of mind regarding consent or lack of consent, you must have regard to all the circumstances of the case, including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse. …"

Deliberation by the jury

1. On 14 February 2020, the jury continued to deliberate. However, as one juror was unavailable for Monday 17 February 2020 and Tuesday 18 February 2020, his Honour adjourned the matter to Wednesday 19 February 2020.
2. In the morning of 19 February 2020, the jury sent a note, asking how they should proceed if they could not reach a unanimous verdict on both counts. His Honour told the jury that he could take a verdict on one of the counts if the jury was unanimous. The jury retired to further consider its verdicts at 12.15pm. During the adjournment, his Honour received further notes. One of the notes said: "To ensure we correctly understand could you please go over again the third element of proof required, in particular how points A, B and C relate to the accused being considered as knowing there was potentially no consent."
3. The trial judge brought the jury back and answered the question as follows: "In the written directions that I have given you which I told you had the same force as any oral directions I gave you at the time and I give you now, knowing is resolved as having three possible meanings, that is as in A, B and C. A is fairly straight forward, knowing in the sense of being aware that the complainant did not consent to intercourse with the accused because of a mistake as to the accused's identity. The second mechanism whereby the law deems a person to know that there was no consent is in the concept known as recklessness in law. Now recklessness can be established in more than one way, those two ways are firstly that the accused simply failed to consider whether or not the complainant was consenting to sexual intercourse with him but proceeded nonetheless even though there was a risk that the complainant was not consenting in the circumstances as would have been obvious to someone of the accused's mental capacity if he had turned his mind to it and the reference to mental capacity means assuming that he is a normal person. The alternative mechanism for establishing recklessness is that the accused's state of mind was such that he realised there was a possibility of the complainant not consenting to sexual intercourse with him but the accused proceeded regardless of whether she was consenting or not or, and this is where we come to C, the accused had no reasonable grounds for believing that the complainant consented to sexual intercourse. Now once the law introduces the word "reasonable" it means as assessed by you, members of the jury, applying the standards of ordinary people in the community."

The application for leave to appeal against conviction

Ground 1: alleged inconsistency between the verdict of guilty on count 1 and failure to agree on count 2

1. Mr Bellanto QC, who appeared with Mr Bicanic on behalf of the applicant, argued that there was an inconsistency between the verdict on count 1 and the failure to agree on count 2 because counts 1 and 2 constituted the same course of conduct and had the same elements.
2. It was common ground that the principles which apply to the present situation are, in substance, analogous to the principles which apply where it is alleged that there is an inconsistency between verdicts: Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [248] (Bathurst CJ, Bell P and Hamill J agreeing). The focus of the appellate court, when the verdicts are alleged to be inconsistent, is upon any explanation for the acquittal. The classic statement of principle appears in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J (McClellan CJ at CL and Latham J agreeing) said: "[128] … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … … [130] Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility."
3. That a jury reaches a different verdict in respect of different counts, or, as in this case, returns a verdict of guilty in respect of one count and is unable to agree on another count, does not lead to any assumption of inconsistency. Where a jury is unable to agree on a verdict of guilty on a charge of a sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ).

Ground 2: alleged unreasonable verdict

1. Although Mr Bellanto did not abandon the unreasonable verdict ground, he accepted in oral submissions that if this Court was not satisfied that there was an inconsistency between the verdict on count 1 and the failure to agree on count 2, ground 2 had no separate life or effect. This concession enables ground 2 to be addressed relatively briefly.
2. This Court, in determining the unreasonable verdict ground, is obliged to make its own assessment of all of the evidence to determine whether it was open to the jury to be satisfied of the applicant's guilt on count 1 beyond reasonable doubt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
3. In M v The Queen at 493, the High Court said, in answering this question: "... the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." [Footnotes omitted.]
4. As with ground 1, in his submissions on ground 2, Mr Bellanto placed significant weight on the alleged disparity between the complaint evidence with respect to count 1 (which was not mentioned specifically to Ryan, although she told Nicole) and that with respect to count 2.
5. He also contended that there "was nothing in the evidence that would provide an avenue for the jury to be satisfied of the disputed elements in relation to count 1, yet not be satisfied of the disputed elements in relation to count 2 and submitted that the result "smacks of compromise" (citing Daaboul at [245], which cited Crofts v R [2018] VSCA 197 at [48] (Priest JA)).
6. Mr Bellanto submitted that "[n]otwithstanding the jury's apparent 'belief' in the complainant's version in relation to count 1, very little or no weight can be placed on the jury's guilty verdict given the irreconcilability of the guilty verdict and the failure to agree."
7. For the reasons given above, I do not regard this alleged distinction in the quality of the complaint evidence with respect to the conduct alleged in count 1 and the conduct alleged in count 2 as other than specious in the context of the circumstances in which the two forms of sexual intercourse took place. Further, as explained above, the quality of the complaint evidence can have no bearing on the third element, which pertained exclusively to the applicant's state of mind.

The Crown appeal against sentence

1. As referred to above, the Crown, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) appeals against the sentence on two grounds. Before turning to the grounds, I propose to summarise what occurred in the course of the sentence proceedings.

The applicant's submissions on sentence

1. Mr Rowe, trial counsel for the applicant, submitted that it was for the sentencing judge to make a factual finding, consistent with the jury's verdict, as to the basis upon which the Crown had proved beyond reasonable doubt that the complainant was not consenting to oral intercourse. Mr Rowe submitted that the applicant should be sentenced on the basis that he honestly believed the complainant was consenting but that such belief was not supported on reasonable grounds. He submitted that this finding was consistent with the applicant's conduct in returning to the bedroom after using the toilet and asking the complainant what was wrong when he discovered that she was crying.
2. Mr Rowe argued that the applicant acted spontaneously with an honest belief that the complainant was consenting. He further submitted that the offence did not involve any coercion, threats, use of force or degrading conduct and that the oral intercourse was of short duration, lasting for two or three minutes. He contended that the offence was at the "very low end of the range of objective seriousness".
3. Mr Rowe relied on the applicant's good work history, his good character, his family situation (engaged with three young children) and lack of prior criminal record. He submitted that his risk of re-offending was "extremely low".
4. Mr Rowe submitted that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) had not been crossed (that no sentence other than imprisonment was appropriate) and that a lengthy CCO, conditional on community service work, would be appropriate.

The Crown's submissions on sentence

1. The Crown provided written submissions on sentence. In its written submissions, the Crown submitted that the only appropriate penalty was one of full-time imprisonment. The Crown relied on the following matters as being germane to objective seriousness: "• The intercourse occurred over 2-3 minutes • It involved a licking of the vagina, with the offender at one stage spitting on her (vagina). • The victim had no knowledge of who she had had intercourse with (a DNA test revealed the offender's identity). • The offender entered a darkened room and woke the victim up, taking advantage of her in a drowsy state, when her perceptive abilities were lowered or non-existent • The deception engaged in by the offender, consistent with the jury's verdict: ○ no conversation beforehand ○ minimal body contact prior to count 1 ○ walking into a room that belonged to someone else ○ leaving without responding to the victim's enquiries as to who he was (the victim said 'Ryan? twice)."
2. The Crown submitted that an Intensive Corrections Order (ICO) was not available because of the prohibition in s 67 of the Act, which applied as the subject offence was a "prescribed sexual offence". The Crown further submitted that a CCO was not appropriate. It also noted that there had been no sentence assessment report requested and that, by reason of s 89(4) of the Act, the condition could not be imposed without such an assessment. The Crown referred to Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (Burton), a case in which this Court was satisfied that error was demonstrated in the sentencing exercise (because the sentencing judge erroneously took into account self-induced intoxication).
3. The Crown submitted that the licking of the complainant's vagina, with a spitting action, could be regarded as humiliating and intrusive. The Crown also relied on the applicant's failure to speak before or during intercourse or respond to her inquiry after intercourse, the complainant's initial unconsciousness and subsequent drowsiness, and the darkened room as being factors which minimised the chances of the applicant being revealed as a relative stranger to the complainant. The Crown submitted that these matters made the offence serious. Although there was neither violence, nor threats of violence, the conduct constituted a grave violation of the complainant's physical integrity which had been achieved through deception. Indeed, the Crown argued that, had there been violence, the complainant would have known that her assailant was not Ryan. The Crown submitted that the objective seriousness of the offending was "below mid-range but … not at the very low or lowest end of the range".

The sentence hearing on 5 June 2020

1. The Crown tendered the indictment, the applicant's criminal history (which revealed that he had no prior criminal history), the complainant's victim impact statement and a document setting out the Corrective Services response to COVID-19 (current as at 20 April 2020).
2. In her victim impact statement, the complainant said that, as at 25 January 2018, was 28 years old and working as a nurse in a drug and alcohol detox ward, helping people with addiction, mental health problems and also victims of sexual crimes. The applicant's criminal conduct had such an impact on her that she eventually gave up work and had not, as at 2 April 2020 (the date of the victim impact statement) been able to return to her former employment. She found it very traumatic to return to the Hills District but she did so because her parents lived there and her father was terminally ill (he had died before the sentence hearing). She has considered suicide on several occasions. She said, by way of conclusion: "That is wrong, and something I don't deserve nor do my family deserve. That someone else's actions made me feel like suicide is the only way I would find some peace. This whole experience, speaking in court, writing this statement is something I never in my wildest dreams thought I would have to do. I'm angry that this has taken so much of my trust of men away, so much time and thought, energy, pain and suffering, and money out of my life. I went from being a strong, self confident, professionally promising, happy, non anxious, good sleeper, daughter, woman ... to someone I struggle to recognise."
3. The applicant did not give evidence on sentence. He adduced character evidence from Rachelle Crisp, the widow of his former employer who was also associated with the Toongabbie Tigers Rugby League Club. She described the applicant as "very respectful" towards women. The applicant had constructed a pool for Ms Crisp's family after her husband had died. Ms Crisp gave evidence that the applicant has been in a relationship with his current partner for 10 years and that they have had three children together. As at 5 June 2020, the eldest was 4, the second child was 20 months old and the youngest was born just before Christmas in 2019. Ms Crisp said she was shocked to hear about the offence and said that she regarded it as out of character for the applicant and not consistent with the man she knew.

The sentencing judgment dated 21 August 2020

1. In the sentencing judge's reasons for decision, delivered on 21 August 2020, his Honour addressed the findings to be made as to the applicant's state of mind. His Honour referred to the applicant's evidence that, after briefly leaving the bedroom to go to the toilet, he had returned and found the complainant under the doona, apparently weeping. His Honour found that, as the complainant had not actually denied that he had returned (since she was under the doona at the time), his version had not been excluded beyond reasonable doubt. His Honour rejected the Crown's submission at the sentence hearing that the jury, in convicting the applicant of count 1, had rejected his evidence in total as being lacking in credit. His Honour said that he was "unable to find beyond reasonable doubt that the [applicant] did not re-enter the room." His Honour also found it "more probable than not, in light of no categorical rejection by the complainant, that "something may have been said by the offender on his re-entry by way of making some inquiry of the complainant."
2. His Honour continued: "This does not advance the Crown's position on sentence of an approach of deception and self-protection by the offender, as the offender, in returning, further exposed himself to being discovered in any purported deliberate deception. Up to this point in time, he had, on the Crown's formulation, succeeded in that deception. Even taking account of the offender's level of intoxication, the return itself, let alone speaking to the complainant, I find to be conduct incompatible with the scenario of deliberate deception. The offender does not otherwise dispute that no words were spoken prior to the act of intercourse. That, however, is submitted by the Crown to have been also part of a deliberate strategy of staying mute. In another aspect I do not find that that is supported beyond reasonable doubt as a deliberate course of deception."
3. The sentencing judge returned to the Crown's submission that there had been deliberate deception by the applicant. The following passage is relied on as the basis for ground 1 of the Crown's appeal against sentence: "In analysing whether that is, in fact, established to a satisfactory level, I must also take account of alcohol consumed on the offender's part. That is to be discounted as any mitigating factor. However, it is to be considered, in terms of explanation, as to how the offender might have truthfully believed, upon a totally unreasonable basis, that consent from this unknown form in the bed was forthcoming, and may have been mistaken, in that the victim was indeed present in the house for some time prior as the only female. However, the Crown, in effect, has asserted, as the jury was instructed, that the effects of alcohol should be ignored for operative purposes. I, however, do take some account of it upon a different basis which is not mitigatory, but potentially explanatory. It is also relevant, I find, to consideration of whether there was any deliberate deception. I have come to the conclusion, upon examination of all of the available evidence, and as is consistent with the jury verdict, that the offender had intercourse with the complainant without her consent, and in circumstances that I am certainly satisfied that it is more probable than not that he honestly believed that she was consenting. I find that to be consistent with behaviour that included his joking about dropping change, his return to the room and making inquiry of the complainant as to what was wrong, and as to his continued presence in the house." [Emphasis added.]

The adjourned sentence hearing on 23 October 2020

1. On 23 October 2020, the Crown tendered the Sentencing Assessment Report of Nicolle Griffin dated 21 October 2020 which had been prepared pursuant to the order made by his Honour on 21 August 2020. Ms Griffith recorded that the applicant lived with his partner of 10 years and their three children and was employed as a subcontractor in the construction industry. She recorded that the applicant considered that the acts which constituted the offence were "of a consensual nature" and "therefore he does not feel that he has impacted the life of the victim." She assessed the applicant as being at low risk of re-offending. She also assessed him as being suitable to undertake community service work and said that Community Corrections could provide up to 21 hours of work per month.
2. His Honour invited the parties to address him on the appropriate sentence. Brief submissions were made. The Crown submitted that a CCO "would not be within range." Mr Rowe submitted that it would be appropriate. His Honour stood the matter over for sentence to 19 November 2020.

The sentencing judgment delivered on 19 November 2020

1. In his reasons for sentence delivered on 19 November 2020, his Honour reiterated the main findings from the reasons which had been given on 21 August 2020. His Honour noted that the applicant was conscious of the effect of his conduct on his own family but lacked insight as to its impact on the complainant. His Honour accepted that "not inconsiderable harm, particularly in terms of humiliation and an inherent violation of her person was done to the victim", based on the victim impact statement which showed that "real harm [had] been done."
2. His Honour concluded that the threshold in s 5 of the Act had not been crossed and imposed a CCO for a period of three years.

Ground 1: alleged error in taking into account the applicant's self-induced intoxication in mitigation

1. Before addressing ground 1, it is necessary to have regard to the statutory provisions which were relevant to self-inducted intoxication which applied at the time of the offending.
2. Part 11A of the Crimes Act makes provision for intoxication. As an offence under s 61I is not an offence of specific intent (s 428B), self-induced intoxication of an accused person cannot be taken into account in determining whether the accused has the requisite mental element for the offence: see s 428D(a) of the Crimes Act and the cases cited in Day v R [2017] NSWCCA 192 at [34] (Johnson J, Rothman and Lonergan JJ agreeing).
3. At the time of the commission of count 1, s 61HA relevantly provided: "61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: … (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or … (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or … does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or … (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse."

Ground 2: alleged manifest inadequacy

1. For the reasons given above, the factual findings made by his Honour, and the consequential assessment of objective seriousness, were erroneous. It is, accordingly, necessary for this Court to revisit these findings and this assessment since, otherwise, the adequacy of the sentence imposed by the sentencing judge would be tested on a flawed basis.
2. In the present case, the applicant gave sworn evidence at trial but did not give evidence at the sentence hearing. The account he gave at trial, as to proof of the third (disputed) element of count 1, must have been rejected by the jury as not reasonably possible. It follows that the jury must have accepted the complainant's evidence as the circumstances in which she consented to oral intercourse namely that she mistakenly believed that the man performing oral intercourse was Ryan, a person well known to her as a sexual partner and in whose bed she was sleeping. Thus, the applicant's version that the complainant initiated the sexual contact must, in the circumstances, be rejected as a lie. The applicant's evidence at trial was, relevantly, false, on count 1 and can therefore be disregarded, except in so far as it constitutes a statement against interest and, therefore, an admission.
3. Like his Honour, this Court is obliged to have regard to all the circumstances that inform the sentencing exercise, except, the applicant's self-induced intoxication. The applicant is, as this Court explained in Day v R, to be treated as if he were sober.
4. The complainant's evidence was that she was asleep when someone came into the room and removed her jumpsuit. She was still sleepy when the person pulled her legs apart and she did not resist because she thought the person was Ryan. I am satisfied from the evidence that the applicant knew that the complainant was asleep at the outset and, throughout the oral intercourse, at best, half-awake. Consent in s 61HA(2) was defined as meaning free and voluntary agreement to sexual intercourse. The applicant took no steps whatsoever to ascertain whether the complainant freely and voluntarily agreed to the intercourse. He did not speak to her or rouse her. The only physical contact between them was directed to his aim of having intercourse with her. When the applicant investigated the state of the complainant's genitals, he discovered that they were insufficiently moist to permit penile/vaginal intercourse. He spat on her genitals to lubricate them and performed oral intercourse to further moisten them for that purpose.

The notice of contention

1. The applicant relied on a notice of contention (although none was filed) in which he contended that the sentencing judge erred in applying a test of "exceptional" or "wholly exceptional" circumstances as the only basis for a non-custodial sentence for an offence of sexual assault simpliciter. I am not persuaded that it is necessary to address this contention. For the reasons given above, his Honour's error as to the relevance of self-induced intoxication vitiated not only the sentencing discretion but also the fact-finding exercise which is required of a sentencing judge. It is not necessary, in these circumstances to address any other statements made by his Honour since, if the residual discretion ought not be exercised, this Court would be obliged to sentence the applicant afresh.

The residual discretion

1. Before relief can be granted in this Court for established error, the Crown must also satisfy this Court that the residual discretion to decline to intervene ought not be exercised in the present case: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ).
2. The applicant relied on the following four factors in support of his submission that the residual discretion not to intervene ought be exercised: 1. the applicant was sentenced on 19 November 2020 and has commenced community service pursuant to the order made by the sentencing judge; 2. he has been subjected to "dread linked to the prospect of entering full-time custody" after having been found guilty and sentenced to a non-custodial sentence; 3. the matters relied on in support of groufnd 2 are, in substance, matters of weight and therefore do not warrant appellate intervention; and 4. "a newly determined pattern" ought not readily be imposed on the applicant: Burton at [62] (Rothman J).
3. It was not suggested on behalf of the applicant (the respondent to the Crown appeal) that there was any unavoidable delay. The applicant was notified that the Crown would be considering an appeal before the sentence was imposed (the possibility of a CCO having been evident from his Honour's order for a report for the purpose of determining the applicant's suitability for community service). The sentence was imposed on 19 November 2020. The notice of appeal was filed and served 4 weeks after the final proceedings and the appeal was listed for hearing less than 3 months from the date of the notice and heard together with the applicant's application for leave to appeal against conviction.
4. At the sentence hearing, the Crown submitted that a full-time custodial sentence was required and that a CCO would be inappropriate and not within range. Accordingly, the Crown did not contribute in any way to the sentence that was imposed. Indeed, the Crown tried to dissuade his Honour from imposing such a sentence.
5. I accept that the applicant has been subjected to the possibility that he will be taken into custody. That remained a possibility following his sentence. The Crown notified him of the prospect of an appeal before the non-custodial sentence was imposed.
6. For the reasons given above, I accept the Crown's submission that the sentence imposed was so manifestly inadequate that it fell far short of community standards as well as being inconsistent with the need for denunciation of sexual assault and general deterrence. I reject the applicant's submission that the matters relied on in ground 2 are matters of weight.

Re-sentence

1. The sentence imposed must reflect the purposes of sentencing in s 3A of the Act. Denunciation, punishment and specific deterrence are all of importance. General deterrence is also highly significant in a case such as the present. The sentence imposed must indicate to the community at large the seriousness of sexual assault on a sleeping woman who is a stranger to her assailant. Excessive use of alcohol by a sexual offender will not mitigate the objective seriousness of non-consensual sexual intercourse against a vulnerable complainant. The consequences for the complainant were devastating and enduring. Further, even where an offender can otherwise claim good character to support the associated submission that he is unlikely to reoffend, a penalty of full-time custody, after trial, will ordinarily be imposed to reflect the gravity of the offending, having regard to the standard non-parole of 7 years' imprisonment and the maximum penalty of 14 years' imprisonment.
2. The offence was aggravated because it was committed in Ryan's home (s 21A(2)(eb) of the Act). It is necessary, when assessing the harm, to excise any harm consequent upon the events that were the subject of count 2. However, with due allowance for that matter, I am satisfied that the emotional harm suffered by the complainant as a consequence of count 1 was "substantial" for the purposes of s 21A(2)(g) of the Act. Prior to the offending conduct, the complainant was pursuing her chosen career of nursing in a way which gave her a sense of purpose and satisfaction. As a result of the offending conduct, she ultimately left nursing. Prior to the offending, the complainant enjoyed coming home to the Hills District to see her parents. As a consequence of the offending, the complainant suffered whenever she went home because of the association between the area where her parents live and the offending conduct. She experiences significant suicidal thoughts and, at times, has seen suicide as the only way of finding "peace".
3. While the applicant was entitled to maintain his innocence, and this cannot be an aggravating factor, he showed neither remorse nor contrition. He denied the intercourse when questioned by Ryan. But for the DNA testing which identified him as the person who had had intercourse with the complainant, he may well have not been charged.
4. The offender is entitled to have his good character and lack of prior criminal history taken into account in his favour. He is not entitled to leniency on the ground of youth as he was 22 years old at the time of the offending. He had been in a permanent relationship for several years and already had one child, and his partner was expecting a second. He is now 25 years old. He and his partner now have three children. Mr Bellanto informed the Court that he had completed 50 hours and 20 minutes of community service pursuant to the CCO made by his Honour on 19 November 2020.

Endnotes

1. (2019) 100 NSWLR 682 at 720 [248] (Bathurst CJ; Bell P and Hamill J agreeing); [2019] NSWCCA 191.
2. (2016) 77 MVR 448 at 461 [52]-[53], 462 [55] (Hoeben CJ at CL; Bathurst CJ and Price J agreeing); [2016] NSWCCA 193.
3. Green v The Queen (2011) 244 CLR 462 at 465-466 [1] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
4. Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44; Green v The Queen (2011) 244 CLR 462 at 477 [36] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
5. [2020] NSWCCA 54 at [27] (Basten JA; Rothman J and Cavanagh J agreeing) ("Burton").
6. Day v R [2017] NSWCCA 192 at [34] (Johnson J; Rothman J and Lonergan J agreeing), and the cases there cited.
7. See now s 61HE.
8. Day v R [2017] NSWCCA 192 at [36] (Johnson J; Rothman J and Lonergan J agreeing).
9. (2010) 201 A Crim R 379 at 392 [54]-[55], 397 [79] (Johnson J); [2010] NSWCCA 159.
10. New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007, 3584-3587.
11. [2017] NSWCCA 51 at [126] (Schmidt J; Hoeben CJ at CL and Wilson J agreeing).
12. (2018) 275 A Crim R 233 at 260 [124]-[127] (Johnson J; Payne JA and Simpson AJA agreeing); [2018] NSWCCA 247.
13. Burton at [24]-[28] (Basten JA; Rothman J and Cavanagh J agreeing).
14. See, for example, R v Loveridge (2014) 243 A Crim R 31 at 59 [220] (Bathurst CJ, Johnson and R A Hulme JJ); [2014] NSWCCA 120.
15. R v Chandler (2019) 101 NSWLR 208 at 218 [47] (Hoeben CJ at CL; Brereton JA and Cavanagh J agreeing); [2019] NSWCCA 250, citing Dinsdale v The Queen (2000) 202 CLR 321 at 325-326 [6] (Gleeson CJ and Hayne J); [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25; Hili v The Queen (2010) 242 CLR 520 at 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J agreeing); [2010] HCA 45.
16. Dinsdale v The Queen (2000) 202 CLR 321 at 325-326 [6] (Gleeson CJ and Hayne J); [2000] HCA 54; R v Harris (2015) 70 MVR 412 at 424 [46] (Adamson J; Basten JA and R A Hulme J agreeing); [2015] NSWCCA 81.
17. AB v R [2014] NSWCCA 339 at [44], [50], [59] (Simpson J; Meagher JA and Wilson J agreeing).