Kramer v R; R v Kramer

Kelly v R [2022] NSWCCA 189 Kiss v R [2021] NSWCCA 158 Latu v R [2023] NSWCCA 19 Libke v R (2007) 239 CLR 599; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Martin v R [2015] NSWCCA 6 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107 R v Alcazar [2017] NSWCCA 51 R v Daley [2010] NSWCCA 223 R v Eaton [2023] NSWCCA 125 R v Francis [2020] NSWDC 870 R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 R v Gerard Cortese [2013] NSWCCA 148 R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451) R v Lau [2022] NSWCCA 131 R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 558 R v Shortland [2018] NSWCCA 34 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Texts Cited: Nil Category: Principal judgment Parties: Boyd Kramer (Applicant) The King (Respondent) Representation: Counsel: J Stratton SC & S De Brennan (Applicant) E Nicholson (Respondent)

Solicitors: Marsdens Law Group (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/284434 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 23 June 2022 Before: North DCJ File Number(s): 2020/284434

HEADNOTE [This headnote is not to be read as part of the judgment] On 14 February 2022, Mr Boyd Kramer (the applicant in the conviction appeal and the respondent in the sentence appeal) was convicted by a jury of one count of sexual intercourse without consent. He was sentenced to a Community Correction Order for a period of two years. The complainant and Mr Kramer began messaging via the dating application "Tinder" on 12 April 2020. Just over one week later, they agreed to meet at Mr Kramer's apartment. During the evening, they engaged in some consensual acts, including kissing and sexual touching. The complainant made it clear, both prior to and during the offence, that she did not consent to penile-vaginal intercourse. On several occasions the complainant told Mr Kramer "No, that is not happening" or "That's enough" when he tried to progress the intimacy to penile-vaginal intercourse. When he inserted his penis into her vagina, the complainant said "Don't, don't, please don't" and moved her hands to his pelvis in an attempt to push him off and out of her. This went on for a minute to a minute and a half. The complainant made a number of early complaints to a friend, a helpline and a doctor. In the days following, Mr Kramer sent text messages which were capable of being seen as admissions to the sexual intercourse. The Crown sought an admissions direction from the trial judge, but this was resisted by counsel for the applicant. No direction was given. Mr Kramer was convicted of one count of unlawful sexual intercourse. The sentencing judge held that the objective seriousness of the offence was "just above [the] low range". In making this finding, his Honour took into account Mr Kramer's mental health and the fact that there were no physical injuries to the complainant. After considering Mr Kramer's subjective case, and the "full context" surrounding and including the commission of the offence, his Honour was satisfied that a non-custodial sentence was appropriate, and he sentenced Mr Kramer to a two-year Community Correction Order. The applicant sought leave to appeal against the conviction on the following grounds: Ground 1: The verdict of the jury is unreasonable or cannot be supported having regard to the evidence in the trial. Ground 2: The trial miscarried because (jointly or severally): (a) The trial judge failed to give an "admissions" direction following the Crown's closing address. (b) The Crown's closing address invited consciousness of guilt reasoning. The Crown also appealed against the sentence imposed upon Mr Kramer on the following grounds: Ground 1: His Honour erred by failing to determine the basis for the respondent knowing the victim did not consent. Ground 2: His Honour erred in the assessment of the objective seriousness of Count 1. Ground 3: The sentenced pronounced is manifestly inadequate. The Court held (Davies J and McNaughton J, Hamill J agreeing), dismissing the conviction appeal, upholding grounds 2 and 3 of the sentence appeal but dismissing the appeal: As to the conviction appeal (per Davies J, Hamill J and McNaughton J agreeing): (1) In determining whether the verdict of the jury is unreasonable, the question is whether the jury must (not might) have entertained a reasonable doubt as to the applicant's guilt. This requires an examination of the whole of the trial evidence. The "advantages enjoyed by the jury" in seeing the witnesses give evidence, and their constitutional role in deciding factual issues in serious criminal cases must also be borne in mind when deciding whether the jury verdict is unreasonable: [60]-[83] (Davies J), [116]-[119] (Hamill J), [128] (McNaughton J). Libke v R (2007) 239 CLR 599; [2007] HCA 30, cited. Dansie v The Queen [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1; M v The Queen (1994) 181 CLR 487, considered. (2) On a consideration of the whole of the evidence there was no doubt about the guilt of the applicant. Any discrepancies in the early complaints were minor. The jury was entitled to infer from the applicant's text messages that admissions were made by him to penile-vaginal intercourse. (3) Given that counsel at trial not only failed to request an "admissions" direction, but actively resisted it for tactical reasons, there is strong indication that no miscarriage of justice occurred: [104]-[107] (Davies J), [120] (Hamill J), [128] (McNaughton J). Hewitt v R [2021] NSWCCA 227; Latu v R [2023] NSWCCA 19, considered. (4) Merely submitting that the applicant lied about some matter in the witness box does not invite consciousness of guilt reasoning: [108], [111]-[113], [120] (Hamill J), [128] (McNaughton J). Edwards v The Queen (1993) 178 CLR 193, cited. As to the sentence appeal (per McNaughton J, Davies J and Hamill J agreeing): (5) It is implicit in the sentencing judge's remarks on sentence that he found the respondent had actual knowledge of the complainant's lack of consent. While it is desirable to set out an explicit finding on knowledge, failure to do so in the circumstances is not an error: [115] (Davies J), [121] (Hamill J), [162]-[169] (McNaughton J). (6) Consent to some sexual activity before and/or after an offence does not diminish the gravity of the offending. People should be free to set sexual boundaries and have those boundaries respected in a particular sexual encounter: [115] (Davies J), [123]-[124] (Hamill J), [182]-[185] McNaughton J. Bussey v R [2020] NSWCCA 280; R v Gerard Cortese [2013] NSWCCA 148, considered. (7) The mental health of an offender and the absence of aggravating features, including threats or physical injuries, does not mitigate the objective seriousness of an offence under s 61I of the Crimes Act: [115] (Davies J), [122] (Hamill J), [188]-[191] (McNaughton J). DS v R; DM v R (2022) 109 NSWLR 83; [2022] NSWCCA 156; R v Eaton [2023] NSWCCA 125, cited. (8) The imposition of a penalty other than imprisonment is rare for the offence of unlawful sexual intercourse. In the circumstances of this case, particularly given Mr Kramer's actual knowledge of the complainant's lack of consent, a Community Correction Order is manifestly inadequate: [115] (Davies J), [125]-[126] (Hamill J), [206], [213] (McNaughton J). (9) The respondent's circumstances, particularly the fact that he has completed his community service work, means the Crown's appeal should nonetheless be dismissed in exercise of the Court's residual discretion: [115] (Davies J), [127] (Hamill J), [215]-[218] (McNaughton J).

Judgment

1. DAVIES J: On 14 February 2022 Boyd Kramer ("the applicant") was found guilty, after a trial before North DCJ and a jury, of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). On 23 June 2022 the applicant was sentenced by Judge North to a Community Correction Order for a period of two years commencing 23 June 2022 and expiring 22 June 2024. There were a number of conditions attached to the Community Correction Order including that the applicant complete 300 hours of community service work in the two-year period.
2. The applicant now appeals against the verdict on the following grounds: 1. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence in the trial. 2. The trial miscarried because (jointly or severally): (a) The trial judge failed to give an "Admissions" direction following the Crown's closing address. (b) The Crown's closing address invited consciousness of guilt reasoning.
3. The Crown appeals against the sentence imposed upon the applicant on the following grounds: 1. His Honour erred by failing to determine the basis for the respondent knowing the victim did not consent. 2. His Honour erred in the assessment of the objective seriousness of Count 1. 3. The sentence pronounced is manifestly inadequate.

The facts

1. The following summary of the evidence relevant to the grounds of appeal is taken largely from the applicant's written submissions.
2. The complainant and applicant had "matched" using the dating application "Tinder". Matching occurs when participants using the Tinder application indicate an interest in the photo and profile of another person by swiping right. The Crown alleged that during the week commencing 12 April 2020, the complainant and applicant commenced messaging via Tinder where they would speak once per night and/or "most nights". On 18 April 2020, the complainant and applicant moved away from the Tinder dating platform and started communicating by mobile phone text message. The complainant gave the following evidence: ... Boyd asked me for my personal phone number; I was not sure if I wanted to give it to him, so I left it to fate and said if he could guess the final number in my phone number in three guesses, he could have it, he guessed the final number on the final guess, so I gave him my phone number.
3. Screenshots of various messages exchanged between the applicant and complainant, taken from the complainant's phone, were Exhibit A in the trial.
4. On the evening of 18 April 2020, the complainant and applicant agreed that the complainant would go to the applicant's apartment in Mosman to eat dinner, smoke marijuana, and stay the evening, the complainant having packed an overnight bag. During the mobile phone text message exchanges on 18 April 2020 relating to that arrangement, the complainant and the applicant had the following exchange: Complainant: "What are you looking for on Tinder exactly?" Applicant: "Mm honestly don't know what I want, just know I don't wanna be alone in my apartment anymore, not willing to commit to anything but open to see where it goes.'' Complainant: "Hmm yeah don't fret I'm not asking for commitment I'm happy to come chill and see how it goes... So if you're wanting a hook up I'd rather be up front I'm not your girl and we wouldn't be having sex tonight or when we catch up. So if that's what your (sic) after I wouldn't want to waste either of our time." Applicant: "Mm no I respect that, I'd prefer it that way. As long as I got the chance to steal a cuddle off you tonight I'll be happy.''
5. By way of a further text message, the complainant said "Cuddles, I'd be open to", together with a wink emoji, to which the applicant said, "Looks like we've got a deal".

Meeting at the Mosman unit

1. At about 8:10pm, the complainant arrived at the applicant's unit in Mosman by car. The applicant opened the door to his apartment, gave the complainant a hug and invited her in. During the course of the evening, the complainant and applicant sat on the couch, ordered dinner using Uber Eats, chatted and smoked marijuana on the balcony of the unit, and watched a movie and a documentary on the couch.
2. The complainant said that when they were watching the movie on the couch, the applicant put his hand on her left leg three times. She took no objection to this. After they had watched a movie, the applicant asked the complainant whether she wanted to smoke another joint. She did not and so he went out onto the balcony and smoked by himself. Upon his return, they watched a 50-minute documentary, by the end of which the complainant wanted to sleep. The applicant asked her whether she wanted to go to the bedroom, and she said "Yes". She picked up her bag and took it to his bedroom.
3. The complainant took off her bra and changed into her pyjama shorts and shirt. The applicant had got into the bed and was under the sheets and shirtless so she went to the other side of the bed to get in. He asked if she was tired and she said "Yes". He then said, "Can we at least cuddle?". She said "Okay". She said that she wanted to sleep but felt as though she was being rude if she did not.

Consensual acts

1. The applicant moved towards her and "spooned" her, by pressing his body against her in a foetal like position. His crotch area was against her buttocks at this stage. He spooned her for roughly half a minute before his hand moved to the front of her torso, and then up to her right breast. He cupped her right breast for approximately one minute through her t-shirt. The complainant said, "That's not cuddling". He laughed at that, moving his hand down and underneath her shirt to fondle both her breasts skin to skin. This took place for a minute when he moved his hand down her stomach towards the top of her shorts. She said, "No, don't", and he rolled away from her. They then had a general conversation for about two minutes.
2. He was lying on his left side facing her as they were having this conversation. He asked, "Can I kiss you?" and she said, "Yes". They kissed mouth to mouth and then his hand again went under her shirt and fondled her right breast. After a minute of this kissing and breast fondling, his hand drifted down to the top of her shorts whereupon she grabbed his hand and moved it back to her breast, which he continued to fondle. He stopped kissing her mouth and moved to her ear, her neck and thereafter, pulled up her shirt and sucked on one breast while he fondled the other. This lasted for about a minute before the complainant said, "That's enough", and then he stopped and rolled off. When he rolled off, they again had a general conversation for approximately three minutes.
3. After the conversation, the applicant leaned across and moved her face softly to kiss her which she allowed. He put his hand up her top and fondled her breasts before moving it down to the top of her shorts. This time, she did not stop him and he put his hand underneath her shorts but above her underwear, and stroked her vagina through her underwear for approximately one to two minutes. He then went to move her underwear to the side and she said, "Stop".
4. The complainant said that the touching of her vagina until this point had been on the outside of her underwear. Specifically, she said that he was stroking from the top where her clitoris is down to the entrance of her vagina. She said that when she said "Stop", he had rolled away from her but kept his hand above her knee and continued to stroke her leg. They then had a conversation for about four minutes. During this conversation, he slowly moved his hand up her leg, up through the bottom of her shorts and back to her underwear. He proceeded to stroke the area from her clitoris down to the entrance of her vagina for about one to two minutes.

The disputed act

1. The complainant said that the applicant then inserted his penis into her vagina. He started thrusting in and out of her. She froze for approximately 10 seconds. During this time, she thought he had thrust it in and out of her approximately six times.
2. The complainant said that she could not comprehend what was happening to her, but that once she had understood, she moved both her hands down to his pelvis in an attempt to push him off and out of her. He continued to thrust/push towards her. She said that she said, "Please don't", while still trying to push on his pelvis. She moved her hands to his chest, pushing him to "get off", and slapped his chest. It was alleged that this incident went on for a minute to a minute and a half. She could not recall the exact order of events but remembered telling him to stop. He then rolled off her and onto his back on the bed. The complainant decided that, as she had just had sex, she would need to go to the toilet so she did not get a UTI, and so asked him where the toilet was located. When in the bathroom, she contemplated her situation for about two minutes. She said that she wanted to leave the house but her bag was next to his side of the bed.

Further consensual sexual activity after the disputed act

1. Following the disputed act, after being in the bathroom, the complainant got back into the bed. The applicant said, "Are you okay?" to which she responded "Fine". In further consensual sexual activity following the disputed act, the applicant said, "I'm going to finish myself off, can I touch you?" and asked to touch her bottom. She said, "Okay", because she did not want to anger him. The applicant masturbated while touching her buttocks for approximately three minutes. She said that he said, "Sorry about that, I was really horny. I'm sane again now. Are you okay?" He then asked whether he could get her anything. He asked her whether she just wanted to sleep and she said yes.
2. Approximately 10 to 15 minutes later, she heard him snore. She decided she wanted to leave. At one point, he woke up and asked, "Are you okay?" He then spooned her again. He started snoring again. When she was getting out of the bed, he asked her what was wrong, and she said that she had a headache and asked for a Panadol. He fetched a Panadol for her, during which she put her underwear and shorts back on and sat at the end of the bed. She ingested the Panadol with water and told him that she wanted to leave. He asked, "Was it something I did?" She said, "No, I just have a headache and want to be in my own bed". He said to her that he hoped she felt better. She said thanks and left the premises.

Events after the complainant left the premises

1. The complainant had thought she had left the applicant's apartment at around 1:45am. She thought that because the applicant had messaged her saying "Get home safe" at around that time. She said she sat in the driver's seat of her vehicle messaging several of her friends because she did not want to drive, and to see whether anyone was available to come and pick her up. The complainant sent a group message to two of her work colleagues, Sally and Noelle. She said that she also messaged Sally separately.
2. In addition to contacting Sally and Noelle, the complainant messaged - either individually or via group message - a number of other persons including Jessica Di Fazio. She had been successful in making contact with Jess who was living overseas in Vancouver, Canada at this time. She spoke with Jess by way of Facebook Messenger and then by way of a telephone call using the same platform.
3. The complainant had messaged her friends because she had smoked the joint of cannabis earlier in the evening and did not want to drive but wanted to go home. She wanted to see whether any of them were awake for this purpose. She spoke to her friend Jess in Canada about how long she would have to wait until she could drive. She said marijuana was legal in Canada and knew that Jess partook in it over there, so she thought that she might be able to advise her.
4. The complainant also said to Jess in a text, I just shouldn't of went over there. And it's like he fully did it. We were fooling around and I told him the whole time I would have sex with him and he just kept pushing so I was letting him fool around but whenever he went near my vagina I told him no. But then he forced it inside of me and thrusted for like a minute and I kept telling him No and to stop but he didn't. He eventually pulled out when I kept pushing him away and hitting him but like It is accepted that "would" in the second line was a typo for "wouldn't".
5. Jess then rang the complainant and they spoke for some time. The complainant said she was very upset in talking to Jess. Jess indicated that she had been through a similar situation in her life and that she had regretted not telling anyone. The complainant said that she and Jess were arguing about what was classified as sexual assault, the complainant noting that she had gone to his house and been in his bed. They looked up what constituted sexual assault together, while they spoke over the phone, with Jess stating, "I really think you need to report it". The complainant indicated that she did not want to report it. They then came across a sexual assault hotline where the complainant could chat to someone without having to speak to them on the phone.

Text messages from the applicant

1. On Sunday 19 April 2020 at around 9am the complainant woke up. In addition to the applicant's earlier message, "I hope you got home safely" with a kiss, the complainant saw a message from the applicant asking, "Are you okay?". The next message from the applicant read, "I'm sorry", with a further message asking, "Can I make it up to you?". The applicant sent a further message, namely, "I'm very sorry about last night, I hope you can forgive me. I was very attracted to you... that's not me. I hope you understand. I'm sorry girl".
2. The complainant did not respond to any of these messages at the time. After she did not respond, the applicant tried to call her three times.
3. The complainant replied to these messages on Monday, 27 April 2020. The following exchange ensued: Complainant at 5.56 pm: "I said no, I said no to sex the entire night, even before I got there. I never consented. What you did was wrong." Applicant at 5.58 pm: "I'm very sorry I was really into yoy [sic]." "I've felt horrible about it honestly" Applicant at 5:59 pm: "Is there anything I can do to make it up to you." "Honestly I've been hating myself" Applicant at 6:00 pm: "I think you're a mad chick too..." Applicant at 6:00 pm: "I'm sorry" Applicant at 6:04 pm: "Can we please talk about it"
4. The applicant then tried to telephone the complainant at 6:08pm. She did not answer. The messages continued: Applicant at 6:11 pm: "I understand you probably don't want to talk to me. I've been dealing with really bad depression and Anxiety and I've been really feeling horrible about it.. I truly apologise. I was really into you and thought you were enjoying it. I'm sorry. Complainant at 6:48 pm: "I sympathise with your depression and anxiety. However that is no excuse to have sex with me. I told you no before, I told you no during and I tried to push you off of me. I don't think you can make it up to me, I hope you understand what you've actually done to me and that it wasn't okay. Applicant: 6:51 pm: "I can't tell you how terrible I feel... Honestly horrible. If there was anything I could do to make it up to you I would... I know it wasn't okay I got too playful I thought you liked me… I'm really sorry. Please do understand I really mean it. I'm not a terrible guy please. I'm sorry". On 28 April 2020 at 8.20 pm: "I'm really sorry. I haven't felt so bad in a while. I'm truly sorry." (emphasis added)

Ground 1: The verdict of the jury is unreasonable or cannot be supported having regard to the evidence in the trial

Submissions

1. Mr Stratton of senior counsel for the applicant submitted that seven matters in particular, when taken together, demonstrated that the jury ought to have had a reasonable doubt as to the applicant's guilt. The matters were these: (1) The overall implausibility of the complainant's account. (2) The complaints made by the complainant to various people. (3) The evidence of Dr Bachmayer. (4) The forensic evidence. (5) The first complaint made to the police, namely, Constable Cooke. (6) The applicant's ERISP. (7) The applicant's good character.
2. The matters relied upon by Mr Stratton SC in oral submissions to show the implausibility of the account were said to be, first, following the disputed conversation (set out above at [17]) MA and the applicant then discussed their favourite sexual position. Secondly, in the context of all of the sexual acts that took place between MA and the applicant, there was an improbability about the penile vaginal sexual intercourse having taken place against the will of the complainant. Thirdly, after the sexual acts including penile vaginal intercourse, the complainant stayed at the applicant's house for some hours afterwards.
3. Secondly, Mr Stratton submitted that there were a number of problems with the complaints made by MA. In relation to the first complaint to her friend Jess, the complainant said, "I was letting him fool around but whenever he went near my vagina, I told him 'No'". Mr Stratton submitted that what she told Jess was not correct because on her own account she had consented to both digital penetration of her vagina on at least two occasions and cunnilingus. Mr Stratton submitted that the complaint recorded by 1800RESPECT differed in a similar way to the complaint to Jess from the complainant's evidence at the trial. What she told 1800RESPECT is set out at [34] above, and reliance was placed by what Mr Stratton identified as "whenever he went near my vagina, I told him 'No'".
4. Thirdly, Mr Stratton relied on the complaint recorded by Dr Bachmayer. Mr Stratton submitted that the account given there of the disputed conversation was different from what had been said to Jess and to 1800RESPECT, and she also told Dr Bachmayer that when the applicant performed oral sex on her she tried to stop him. That was said to be inconsistent with her evidence.
5. Fourthly, in relation to forensic evidence, Mr Stratton also relied on Dr Bachmayer's evidence that "one might expect some pre-ejaculate which may contain some small amount of spermatozoa if there was penetration by the penis of the vagina", but in fact none was found. Mr Stratton relied on the absence of sperm cells detected in the examination of the higher vaginal swab. He maintained that the absence of sperm cells was consistent with the applicant's account.

Legal principles

1. The High Court said in Dansie v The Queen [2022] HCA 25 at [8]: That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence".
2. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 the High Court said: [37] Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. [38] It should be understood that when the joint reasons in M v R17 spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. [39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citations omitted)

Ground 2: The trial miscarried because (jointly or severally):

(a) The trial judge failed to give an "Admissions" direction following the Crown's closing address.

(b) The Crown's closing address invited consciousness of guilt reasoning.

1. Although part (a) of this ground concerned the failure to give an Admissions direction, and part (b) referred to consciousness of guilt, Mr Stratton submitted that the issues raised by those grounds flowed from the same matter, namely, the terms of text messages between the applicant and the complainant subsequent to the events of the night (contained in Exhibit A)

The closing addresses

1. In her closing address the Crown said this about the messages: [T]he Crown would ask you to reject the accused's evidence in relation to the messages that he sent [MA] after the event. The Crown submits to you that those messages are very plain language. … In my submission, members of the jury, you would read those messages, you would note that they are in very simple language. You would note that the accused gave evidence that he was trying to deescalate the situation after [MA] sent the messages to him on 27 April which were in really very clear effect accusing him of rape, that you would find his apologies relate directly to those accusations. That they are directly in response to those accusations, and that those responses are in very clear terms. The accused gave evidence, both when he was giving evidence-in-chief and when he was cross-examined, that when he sent the messages on 27 April, he was trying to deescalate the situation and not add fuel to the fire. You might think that sending what amounts to a flurry of messages that day is an unusual way to try and deescalate a situation. Be that as it may, the Crown submits that the responses to [MA]'s messages on 27 April are very clear and the Crown submits to you that you could accept those messages are admittance [sic] by him of the penile-vaginal intercourse. Unless there had been any misunderstanding about what I am suggesting to you, or submitting to you, on 27 April at 5.56pm [MA] sent a message to the accused that read: "I said no, I said no to sex the entire night even before I got there. I never consented. What you did was wrong." Members of the jury, I submit to you that's a very clearly worded, and that would be very clearly understood, the meaning of that message. The accused responded two minutes later "I'm very sorry. I was really into you." The next message "I felt horrible about it, honestly." Next message, "Is there anything I can do to make it up to you?" Next message, "Honestly I've been hating myself." Next message, "I think you're a mad chick too." Next message, "I'm sorry." Next message, "Can we please talk about it?" Next message is a longer one from the accused: "I understand you probably don't want to talk to me. I've been dealing with really bad depression and anxiety, and I've been really feeling horrible about it. I truly apologise. I was really into you and thought you were enjoying it. I'm sorry." [MA] replied to that message a little bit over half an hour later: "I sympathise with your depression and anxiety, however that is no excuse to have sex with me. I told you no before. I told you no during and I tried to push you off of me. I don't think you can make it up to me. I hope you understand what you've actually done to me and that it wasn't okay." The accused then replied: "I can't tell you how terrible I feel. Honestly horrible. If there was anything I could do to make it up to you I would. I know it wasn't okay. I got too playful. I thought you liked me. I'm really sorry. Please do understand, I really mean it, I'm not a terrible guy. Please, I'm sorry." The following evening at 8.20pm on 28 April, the accused sent the final text message, "I'm really sorry. I haven't felt so bad in a while. I'm truly sorry." So the Crown submits to you that you would find that those messages from [MA] that I have just drawn your attention to are very clear, and the accused's response is very clear. The Crown submits to you that you would find that he was apologising for the conduct [MA] accused him of in those messages. There were earlier messages on 19 April, and the accused sent a series of messages, he also tried to call. After the "Hope you get home safely" message at 1.46am, between 9.30am and 10.22am on the 19th, he sent four text messages to the complainant. He tried to ring the complainant three times and he sent her the Tinder message at 10.22. The accused, not having received any response from [MA], by the time he sent the third message on 19 April, the one at 10.44am, said "I'm sorry." The next message, "Can I make it up to you." And then the next message "I'm very sorry about last night. I hope you can forgive me. I was very attracted to you. That's not me. I hope you understand. I'm sorry girl." The Crown will submit that you will also find that those messages are apologies for non-consensual penile-vaginal intercourse the night before. The Crown submits that you would reject the accused's evidence that he was just worried about [MA] because she looked upset when she left, and she had left her chocolates behind and that she had gone home. Because you may recall that at that time, he didn't think he had done anything wrong; that was his evidence. The Crown submits that you would make that use of those messages. Of course the use that you choose to make of those messages is entirely up to you. The Crown would suggest you make of those messages is as I have just submitted. You may also recall that in the messages that I just read to you, right up to the message sent on 28 April which by then was a bit over a week, the alleged offence having occurred during the night of the 18th and early hours of the 19th, so it had been over a week. And the accused made very clear in those messages that he was feeling really bad. The Crown submits to you, and I asked the accused about this in cross-examination, and he denied that he was feeling bad because he had had penile-vaginal intercourse with the complainant without her consent, but my submission to you would be that you would look at the messages, you'd look at the passage of time, and the evidence in the trial, and that you would reject that evidence of the accused and that you would find that the reference to "feeling bad" is a reference to having gone ahead and had the penile-vaginal intercourse without the complainant's consent. (emphasis added)

Discussion re directions

1. At the conclusion of the addresses and before the summing up there was a discussion about directions that his Honour would need to give. During that discussion the following exchanges occurred: CROWN PROSECUTOR: The other direction that I've given some consideration to was one in relation to admissions. The Crown relies upon the SMS messages post offence as admissions. I… HIS HONOUR: I don't know… CROWN PROSECUTOR: Your Honour might be inclined to give a direction that they need to consider whether it's open to find that the accused made the admission. That's not really in contest in the trial. They might then have - the standard direction from the bench book applied more to either admissions by silence, effectively, whether accusatory statements or admissions to police rather than to… HIS HONOUR: The trouble I have with your application is the entire night of sexual activity where eight or nine or ten items of quite, one might say heavy sexual contact is had, and not anywhere in those letters or messages does she say, "You put your penis in my vagina." I don't know if they are admissions. Ms Cunneen's certainly saying they're not. CUNNEEN: Especially when he says, "I was really into you and thought you were enjoying it." HIS HONOUR: Yes. CUNNEEN: That's not an admission. That means he thought it was all consensual. HIS HONOUR: I think that might just cloud the air because - I'm right, aren't I, Ms Cunneen, that there's no… CUNNEEN: Always. HIS HONOUR: Not always. There's no mention in them of penile-vaginal… CUNNEEN: No, that's right. It's just sex. "I never consented to sex." Pretty misleading. HIS HONOUR: Yes. And, well, she did. CUNNEEN: She did. HIS HONOUR: So I don't propose to make that direction.

Summing-up

1. In the course of his summing up, the trial judge reminded the jury of the messages and the applicant's evidence about what he meant by the messages. In relation to the submissions of counsel about the messages his Honour said this. First, in relation to the Crown:

She then turned to submissions in relation to the credibility of the accused's evidence in court, his ERISP with police and the SMS and Tinder messages and attempts to telephone the complainant after she left his home on 19 April. Secondly, in relation to Ms Cunneen his Honour said this:

Ms Cunneen suggested to you that this is a set up, and that those messages she [the complainant] sent eight days later proved this and show this, …

1. Nothing was said by his Honour in relation to the messages amounting to an admission or not constituting an admission.
2. No application was made for any further directions concerning the messages amounting to admissions or not.

Submissions on appeal

1. The applicant submitted that, whilst no issue was taken with the suggestion by the trial judge in the exchange following closing addresses that the text messages fell short of an admission as that concept is defined, the decision not to give an admissions style direction had the unintended consequence of depriving the applicant of important protections attendant in a direction of that kind. The applicant submitted that when the Crown had squarely contended in her closing address that the text messages were admissions, the trial judge ought to have given the direction.
2. The form of the direction it is said should have been given was provided by the applicant's senior counsel at the hearing of the appeal.
3. The proposed direction made provision for the Judge to set out the messages and to summarise the parties' contentions about them. It was then submitted the following directions should have been given: Firstly, you must be satisfied that the only reasonable interpretation of the text messages is that they represent an acknowledgement or admission by him to one or more of the essential elements the Crown must prove beyond reasonable doubt for Count 1. So, if you thought it was possible that the accused's words were not intended to be an admission or acknowledgement to the penile-vaginal sexual intercourse alleged in Count 1, then you could not use this evidence in the way contended for by the Crown. For example, if you thought the accused may have been referring to "dry sex", or was trying to de-escalate the situation, or that he did not want to add fuel to the fire, that he wanted to speak to the complainant in person because he was not very good with words or accepted some other explanations provided by him in his evidence for the text messages, then you could not use the evidence as an admission as the Crown asks you to do. You would have to be satisfied that he was acknowledging the non-consensual penile-vaginal sexual intercourse alleged in Count 1. You must, however, be careful how you use this evidence if you accept the Crown's argument that it is some sort of acknowledgement of the conduct alleged in Count 1. Even if the messages are an acknowledgement by the accused to the conduct alleged in Count 1, such evidence cannot be used to prove the accused's guilt of itself. While the making of an admission or an acknowledgement as to a relevant fact in issue might assist you to determine whether the Crown has discharged its burden of proof, that is not a substitute for proof of Count 1. You would still have to look at the evidence of the complainant that is relied upon for Count 1 and satisfy yourself that her evidence is honest and sufficiently accurate. So, this type of evidence can support the complaint, but it cannot be a substitute for the complaint. It must be remembered that the text message evidence that the Crown relies upon as an admission is only one part of the evidence and you must take care not to consider that evidence in isolation or afford it undue weight. You must consider the evidence that is relied upon as an admission to Count 1 in the context of all other evidence including the other messages between the accused and the complainant that are before you.

(a) Failure to give an admissions direction

1. In Hewitt v R [2021] NSWCCA 227 the applicant was charged with sexual intercourse without consent. The offence occurred in circumstances where the complainant was asleep at the time of the applicant digitally penetrating her.
2. The Crown relied on a text message sent by the applicant and a lawfully intercepted phone call where admissions were alleged to have been made. One ground of appeal alleged that the trial judge erred in failing to direct the jury as to how they could use the evidence of admissions the applicant made in the text message and the phone call. In its closing address the Crown had submitted that the jury would find that the message and the phone call amounted to the applicant apologising for what he did to the complainant, that is, digitally penetrating her rather than it simply being a general apology for whatever had happened to upset her.
3. Four of the five reasons put forward by the applicant in that case as to why a direction should have been given are apposite in the present matter. They were: (1) first, evidence of the admissions formed a central plank of the Crown case; (2) secondly, there was an increased need to give the direction because the applicant disputed the truth of the admissions (Burns; Green at [31]); (3) thirdly, the text message was inherently ambiguous and did not suggest that the applicant was admitting to digitally penetrating the complainant's vagina, and there was cogent evidence that it had only been sent at MC's suggestion; (4) fourthly, without the direction, the jury may have reasoned that the applicant in the call was admitting to digital penetration when he did not expressly do so. There was a reasonable possibility that the applicant and complainant were at cross purposes as to what was "not alright", and for what the applicant was "sorry". There was a danger that the jury would reason that, because the applicant said those things, they must be truthful; … At the trial no direction had been sought by the applicant's counsel.
4. In rejecting the ground of appeal, Payne JA (with Garling and Wright JJ agreeing) said: [76] Although I have wavered about the correct answer to this issue, I have concluded that the Crown is correct that the cases relied upon by the applicant do not establish that a direction of the kind sought is required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate. [77] In Flood-Smith v R [2018] NSWCCA 103, it was alleged that the applicant had recklessly inflicted grievous bodily harm upon her two-year-old child. The Crown relied on three admissions: "I didn't mean for none of this to happen", "I don't know what happened, I don't know what I've done" and "I don't know what I've done". The applicant did not give evidence, but gave accounts recorded in two statements she had made to police in which she denied assaulting the child. In those statements she said that she did not know how the injuries were occasioned but she thought that the dog may have attacked the victim, or that she may have fallen from a chest of drawers. The applicant's case was that each of the asserted admissions was readily explicable on the basis that she did not inflict the injuries but nonetheless felt responsible because the child was injured while in her care. Hoeben CJ at CL (with whom Walton and Button JJ agreed) observed at [119]-[121] that: [119] ... [N]o submission was made at trial that his Honour should direct the jury in the terms now said to have been called for by ground 1(b). [120] Secondly, and in any event, the direction now said to have been necessary is really a matter of common sense: if the jury does not regard a statement said to be an admission as indeed an acceptance of guilt by the speaker, then self-evidently they will not use it as such. [121] In light of the clear competing submissions in the final addresses at trial about that topic, there is no risk that the jury misunderstood this aspect of its task of assessment. [78] I have reached essentially the same conclusion here. First, no submission was made by the applicant's counsel at trial that his Honour should direct the jury in the terms now said to have been called for. Secondly, I can envisage a tactical reason why counsel for the applicant would not have sought such a direction: a Burns direction may have highlighted the applicant's statements as confessions and/or admissions. Thirdly, the Crown is correct that even now the applicant did not expressly formulate the direction which he now asserted, on appeal, ought to have been given. The fact that such a direction was not sought at trial by experienced senior counsel who appeared on behalf of the applicant is significant. Finally, the absence of a request for the direction now sought is an indication that no miscarriage of justice was occasioned in the atmosphere of the trial: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, with whom James and Johnson JJ agreed); Greenhaigh v R [2017] NSWCCA 94 at [42] (Basten JA, with whom Button and N Adams JJ agreed). [79] I would refuse leave to appeal on ground 1 under r 4.15 of the Supreme Court (Criminal Appeal) Rules.

(b) Consciousness of guilt

1. Consciousness of guilt reasoning involves the Crown suggesting that an accused person told a lie, did something or failed to do something because they appreciated that they were guilty of the offence charged and wished to keep the guilt hidden: Edwards v The Queen (1993) 178 CLR 193 at 209.
2. The Crown prosecutor introduced this part of her closing address by saying this: Now, once the accused has given evidence, as he has in this trial, he becomes a witness in the trial and you can treat his evidence in the same ways as you would treat any other evidence in the trial, which is to say you can accept all of it or none of it or part of it. Ultimately, what you do in relation to his evidence is a matter for you. My submission to you would be that you would reject the accused's evidence and I'll take you through several areas, which I will draw your attention, in support of my submission to you that you would reject is [sic] evidence.
3. The prosecutor then dealt with a number of areas of the applicant's evidence before coming to the messages, being the portion set out at [85] above, including the italicised portion, said now by the applicant to invite consciousness of guilty reasoning.
4. Merely submitting that the applicant lied about some matter in the witness box does not invoke consciousness of guilt reasoning. The Crown prosecutor nowhere suggested to the jury that they should use his dishonest evidence as corroborative of the prosecution case. The submission dealt only with general credibility, and how the jury should approach the evidence, as appears from what the prosecutor said a little later: But if you reject the accused's evidence, you would then have to put that to one side because as I said to you very early in this address, it's not just a question of word against word. If you reject the accused's evidence - so even if you said, 'We don't accept any of it,' you may accept part of it, you may accept all of it, you may reject all of it. But if you choose to reject all of it, you have to put that to one side. You then have to consider whether the Crown can prove the essential elements of the charge beyond reasonable doubt.
5. No Edwards direction was sought by senior counsel for the applicant. That was probably because, quite reasonably, senior counsel did not consider that the prosecutor was inviting consciousness of guilt reasoning. In my opinion, the submission of the Crown did not invite consciousness of guilt reasoning. No miscarriage of justice was occasioned.

Conclusion

1. I propose the following orders: 1. With respect to ground 1: 1. Grant leave to appeal; 2. Dismiss the appeal. 1. With respect to ground 2, refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
2. I have read in draft the reasons of McNaughton J concerning the Crown's appeal against sentence. I agree with her Honour's reasons and the order her Honour proposes.
3. HAMILL J: have the advantage of reading the draft judgments of Davies J and McNaughton J. I am grateful for their Honours' comprehensive analysis of the evidence and issues and agree with the orders proposed.

Appeal against conviction

1. Upon a review of the record of the trial and, notwithstanding the cogent arguments advanced by Mr Stratton SC and Mr De Brennan, I am not persuaded that the verdict was unreasonable or unable to be supported having regard to the evidence.
2. The accounts provided by the complainant, in the hours and days after the incident, were reasonably consistent and quite compelling. As far as one can tell at this distance, so was her evidence in Court. I have considered the versions of events provided by the applicant and, while they were not implausible, there was at least one significant inconsistency between the version he provided to the police and the evidence he gave before the jury. This is set out by Davies J at [47]-[50] and concerns the applicant's memory of whether digital penetration occurred. I have considered the evidence of the applicant's good character both in terms of his credibility and the likelihood that he would offend in the way alleged.
3. In making these assessments, I have borne in mind the advantages enjoyed by a jury as described by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493-494 ("M v The Queen") and more recently in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]-[38]. Any doubt I may have entertained about the applicant's guilt from reading the transcript and reviewing the exhibits is readily resolved by those advantages and an acknowledgment of the jury's constitutional role in deciding the factual issues in serious criminal cases. I should say that I do not experience the kind of "anxiety and discomfort" about the conviction described by Sully J in this Court which led to the successful appeal in M v The Queen (at 491, 495). I have nothing to add to the thorough review of the evidence undertaken by Davies J and I agree with his Honour's observations regarding the evidence. Accordingly, I would not uphold ground 1.
4. I agree with the reasons provided by Davies J concerning the rejection of the second ground of appeal against the conviction.

Appeal against sentence

1. I agree with the reasons of McNaughton J for rejecting ground 1 of the prosecution appeal against the sentence.
2. I am also in substantial agreement with her Honour's reasons for upholding grounds 2 and 3 although I have had more difficulty in deciding whether Judge North's ultimate finding as to the objective seriousness of the offence was wrong and whether the penalty imposed was plainly unjust or unreasonable. However, I agree that the sentencing Judge fell into clear error by taking into account the applicant's mental health issues in assessing the objective seriousness of the offence: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [85], [90]-[96] and R v Eaton [2023] NSWCCA 125 at [46]-[52]. In fairness to his Honour, neither of those decisions had been delivered when Judge North sentenced the applicant. I also agree with McNaughton J that the lack of physical injury did not inform the objective gravity of an offence under s 61I Crimes Act 1900 (NSW), given the existence of the aggravated offence in s 61J(2)(a). Accordingly, the finding made by Judge North of the objective seriousness of the offence was infected with error. His Honour took into account irrelevant considerations.
3. I also indicate my express agreement with McNaughton J's analysis of the judgments in Bussey v R [2020] NSWCCA 280 ("Bussey") and R v Gerard Cortese [2013] NSWCCA 148 and their application to the circumstances of the present case. The increasing prevalence of internet dating sites does not change the law with respect to consent and the criminal sanctions that apply when an offender does not respect the limits clearly expressed by their sexual partner. As Harrison J said in Bussey (at [97]) "[o]nce it is accepted that no means no, that should be the end of the matter" and at [95] "the notion that no means no" should not be depreciated.
4. The victim in the present case communicated clearly that she would not, and did not, consent to penile-vaginal intercourse. She did so in the course of the messaging leading up to the evening of 18 April 2020 and personally during that evening. Her consent to other sexual activity did not diminish the gravity of the offending. She was entitled to place a limit on the sexual activity in which she participated, and her choice should have been respected. The jury accepted that the applicant knowingly ignored her clearly articulated limits. While the sentencing Judge was correct to distinguish the factual circumstances from more serious instances of an offence under s 61I, the offence remained serious and attracted a maximum penalty of 14 years with an associated standard non-parole period of 7 years.

The Crown appeal

1. As noted by Davies J, the Crown appeals against the sentence imposed upon the applicant (the respondent in the Crown appeal) on the following grounds: 1. His Honour erred by failing to determine the basis for the respondent knowing the victim did not consent. 2. His Honour erred in the assessment of the objective seriousness of Count 1. 3. The sentence pronounced is manifestly inadequate.
2. The respondent was sentenced to a Community Correction Order for two years pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), subject to a number of conditions including that he complete 300 hours of community service work in the two-year period and he continue to participate in his mental health program as directed. The charge, pursuant to s 61I of the Crimes Act, carries a maximum penalty of 14 years' imprisonment with a standard non-parole period of 7 years.
3. Crown appeals against sentence are brought for the primary purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The Crown needs to show the sentencing judge has made an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 ("House"); see CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 ("CMB") at [54] (Kiefel, Bell and Keane JJ). Even if error is established, the court is required to consider whether the Crown's appeal should nonetheless be dismissed in the exercise of its residual discretion (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green") at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). The Crown must "negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised" (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting R v Hernando [2002] NSWCCA 489 ("Hernando") at [12]; (2002) 136 A Crim R 451).
4. It was also observed in Green that cases might arise where the court concludes that the inadequacy of the sentence is so marked that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case, a court is justified in interfering with the sentence: Green at [42] (French CJ, Crennan and Kiefel JJ).

Remarks on Sentence

1. In the remarks on sentence, the sentencing judge set out the facts at some length. His Honour noted that when the respondent and the complainant first lay on the bed together, the complainant allowed him to insert his index finger into her vagina for approximately 20 seconds. When the respondent attempted to have the complainant touch his erect penis, she stated, "No, that's not happening". He then withdrew his hand from inside her and rolled on to his back.
2. In the course of setting out the facts, the sentencing judge included the various acts to which the complainant consented noting "some at time were 'enjoyable'".
3. The sentencing judge then set out the following: "The complainant said that the [respondent] suddenly got out of the bed to obtain a condom. She said, 'Why are you getting condoms we're not having sex', he climbed back on the bed and climbed on top of the complainant and repeated, 'Don't worry I won't put it inside you.' It is consistent with the jury verdict in relation to the charge itself that they found the following took place beyond reasonable doubt. The [respondent] used his hand to grab his erect penis and stroke the end of it against the complainant's vagina, so from her clitoris down to the entrance of her vagina, he then inserted his penis into the complainant's vagina, thrusting in and out of the complainant's vagina. The complainant froze for approximately ten seconds as she said, 'He had just promised he wouldn't put it in and I said we weren't having sex so I didn't understand.' The complainant moved both her hands down to his pelvis and tried to push him off and out of her. The [respondent] pushed back just as hard. He did not say anything. The complainant said things such as, 'Don't, don't, please don't, please stop' and 'Please don't do this.' The complainant moved her hands to his chest and said 'Get off'. The [respondent] did not respond, the complainant slapped on his chest, the [respondent] still did not respond and kept thrusting. This lasted for approximately a minute to a minute and a half. The [respondent] then rolled off the complainant and on to his back. These facts cover the elements of the offence."
4. Then followed an account of a consensual act after the complainant had been to the bathroom, hoping to leave, but her bag and keys were next to the bed, so she returned. The sentencing judge included the following account: "The [respondent] asked her, 'Are you okay?' she responded 'Fine'. He said, 'I am gonna to finish myself off, can I touch you'. He then said, 'Can I touch your butt?' and the complainant responded 'Okay'. The complainant said she said this as she did not want to anger him."

Ground 1 in Crown appeal: Failure to determine the basis for the respondent knowing the complainant did not consent

1. The Crown submits that where consent is an issue on sentence, it is wrong not to make a finding of the basis on which the issue was resolved: R v Shortland [2018] NSWCCA 34 at [79]; R v Alcazar [2017] NSWCCA 51 at [44]-[45]. His Honour did not make any finding of the basis upon which he resolved the respondent's knowledge of the lack of consent, by reference to s 61HE(3) Crimes Act or otherwise.
2. The Crown's position at trial was that the respondent had actual knowledge the complainant was not consenting on the basis of the following: 1. The complainant's text messages and statements in person to the respondent stating she did not intend to have sexual intercourse (by inference, penile/vaginal intercourse). 2. The respondent's admission in his ERISP to the effect that he knew the complainant was unwilling to have penile/vaginal intercourse. 3. The respondent's admission in his ERISP that he had said to the complainant "Don't worry, I won't put it in you." 4. The sentencing judge summed up to the jury on the basis of actual knowledge and also on the alternative basis pursuant to s 61HE(3)(c) Crimes Act (that is, that the respondent had no reasonable grounds for believing the complainant consented). 5. As set out by Davies J, the respondent's case at trial was that the penile/vaginal intercourse did not occur.
3. The Crown's position at sentence was that the respondent had committed the offence with actual knowledge that the complainant was not consenting.
4. The respondent's position at sentence was: 1. In written submissions, an alternative possibility was advanced that that complainant had "revoked" consent after the intercourse had commenced; 2. In written and oral submissions, it was put that the respondent was reckless as to the complainant's lack of consent.
5. The Crown's submission on the appeal was that the sentencing judge should have found, on the basis of all the evidence, that the respondent knew that the complainant did not consent to sexual intercourse. This included uncontested evidence not mentioned by the sentencing judge including the text messages that the respondent had sent to the complainant, apologising, explaining that he had been "very attracted to [her]" and "really into [her]".

Consideration of Ground 1

1. The relevant subsections of s 61HE are in the following terms:1 (2) Meaning of "consent" A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case - (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person.
2. At trial, the respondent denied having penile/vaginal intercourse with the complainant. By its verdict, the jury found that it occurred, and that it occurred without consent. On sentence, the sentencing judge was obliged to resolve a contested issue as to knowledge of the absence of consent on the part of the respondent.
3. As noted above, at trial, the issue of knowledge of the absence of consent had been summed up to the jury on the basis of actual knowledge pursuant to s 61HE(3)(a), and also on the alternative basis pursuant to s 61HE(3)(c) that the respondent had no reasonable grounds for believing that the complainant consented. Recklessness was not left to the jury. This may be explicable in light of the defence being that the act of penile/vaginal intercourse did not occur.
4. Recklessness (pursuant to s 61HE(3)(b)) was raised on sentence by Senior Counsel for the respondent in both written submissions and orally. Even though recklessness had not been before the jury, it was put on the respondent's behalf on sentence that the respondent could be sentenced on the basis (at least for part of the time the offence was being committed) that he was reckless as to whether the complainant consented to the penile/vaginal intercourse. The basis of that submission appeared to be that the sentencing judge could find that the offence was essentially spontaneous (at least initially), that the respondent was reckless as to consent initially (for the first ten seconds), and then continued after the complainant had clearly said no (for a minute to a minute and a half). It was also put on behalf of the respondent that he could be sentenced on the basis of revocation of consent. That is, that there was initial consent which was revoked after the first ten seconds.

Ground 2 in Crown appeal: The sentencing judge erred in the assessment of the objective seriousness of Count 1

1. On the appeal, the Crown contended that it was not reasonably open to characterise the offence as just above the low range of objective seriousness. The sentencing judge erred, the Crown submitted, in making both specific errors of principle and also in reaching the ultimate conclusion that the offence was just above the low range. The Crown contended that the offence was a serious one, involving penile/vaginal intercourse, and was committed in circumstances where the respondent had reassured the complainant moments before the intercourse "Don't worry, I won't put it in". The offending was sustained even in the face of the physical resistance by the complainant and her repeated requests for the respondent to stop.
2. The Crown contended that the sentencing judge was in error in finding that the consensual activity before and after the assault made the case an "unusual one" and was in error in finding that it impacted upon the objective seriousness in any mitigating way. In doing so, the sentencing judge made unjustified and impermissible assumptions about the effect of the offence upon the complainant: Bussey v R [2020] NSWCCA 280 ("Bussey") at [95] (Harrison J, Hoeben CJ at CL and Bellew J agreeing); Kiss v R [2021] NSWCCA 158 ("Kiss") at [80]. Such a finding "depreciates the notion that no means no, whatever other factors may be involved": Bussey at [95].
3. The Crown also contended the sentencing judge erred in taking into account the respondent's mental health issues in determining the level of objective seriousness of the criminal offending. This was not a case where a mental impairment may be relevant, such as where it is relevant to an element of a crime (such as manslaughter involving substantial impairment) or taking place during an episode of psychosis but falling short of circumstances giving rise to a defence: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [63]-[96]. The objective seriousness of a sexual assault would not be reduced due to an offender's depression, even if that sometimes warranted a reduction in moral culpability: DS v R; DM v R at [96]. The Crown submitted the respondent's history of depression and anxiety did not impact the assessment of the objective seriousness of the offence.
4. Another specific error alleged by the Crown was the sentencing judge's consideration of the absence of physical injury to the complainant (which if there had been some would have constituted actual bodily harm, and the aggravated form of the offence pursuant to s 61J of the Crimes Act).

Consideration of Ground 2

1. As noted, this offence occurred in the context of a meeting brought about by the use of a social media application (or "app") known as Tinder. The advent of social media apps in relation to dating (such as Tinder) in recent years has contributed to the changing of social norms in relation to dating and the course of sexual relationships, at least for certain sections of the community. Whilst no doubt there have always been situations involving people who have engaged in consensual sexual activity with others they do not know or barely know, it is fair to observe that social media apps have increased markedly the available options for communication between people and have made it easier for those who so wish, to engage with others in the community in ways previously unavailable. As this historical development is relatively recent, there is little if any Australian case law similar to the facts of this case. That does not make it a "unique factual matrix" as stated by the sentencing judge and as contended on behalf of the respondent. Rather it simply shows that matters involving these types of factual circumstances have yet to come before the intermediate appellate courts of this country in any number. The only potentially less common aspect to this matter is perhaps the fact that Sydney (the city where the offence occurred) was, at the time of the offence, in "lockdown" due to the COVID-19 global pandemic such that meeting in public was not an option for people wishing to explore the potential of a romantic and/or sexual relationship with a new person. It is conceivable that relationships which perhaps may have developed more slowly in more 'normal' times, were, by force of circumstance, diverted into the more intimate space of a person's residence from the very beginning in order to circumvent being in breach of the lockdown laws.
2. To recognise that slightly distinctive aspect is not to say, however, that the law in relation to consent to sexual intercourse changed in any way at that time. The fundamental principles underpinning the criminalisation of sexual assault remained unchanged, with each case to be decided on its own facts. Stereotypes, prejudices, or preconceptions of what is and is not appropriate behaviour should have no part to play in the finding of guilt, or in the sentencing exercise. [1] It is the evidence in the particular case which remains the only basis upon which issues surrounding consent should be determined.

Ground 3 in Crown appeal: The sentence pronounced is manifestly inadequate

1. The Crown pointed to the following factors: 1. This was a sentence following a trial; 2. The respondent has consistently maintained his innocence including challenging the conviction in his own appeal; 3. There was, and clearly remains, no remorse.
2. The sentencing judge found that this was an "exceptional case", with this finding based only on the "full context of what occurred surrounding and including the commission of this offence." His Honour also referred to it being an "unusual" case where the offence occurred "in the midst of other consensual sexual conduct both before and after the offence."
3. The Crown contended his Honour erred in this characterisation for the reasons outlined in relation to Ground 2. Further, in finding this was an "exceptional case", the Crown submitted that this was based to a considerable degree on the erroneous finding of objective seriousness being just above the low range - also infected by error as set out in relation to Ground 2.
4. The Crown submitted that the evidence clearly showed that the respondent had actual knowledge that the complainant was not consenting, and that factor significantly increased his moral culpability. His persistence in the offending in the face of the complainant's physical resistance, as well as her verbal entreaties to stop was also significant in considering his moral culpability. The Crown pointed out that the sentencing judge did not refer to the respondent's moral culpability at all.
5. The Crown pointed to the fact that the form of the sexual intercourse, while not determinate, was a significant factor - being penile/vaginal intercourse. The complainant was physically dominated with the respondent's body weight and she tried to physically resist him during the offence.
6. The Crown also contended that whilst the duration of the offending was not long, a short duration did not reduce the objective seriousness: Kelly v R [2022] NSWCCA 189 at [33]; R v Lau [2022] NSWCCA 131 at [82]; R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]; Fisher v R; R v Fisher [2021] NSWCCA 91 at [85]-[87].
7. The Crown also submitted that the complainant and the respondent being of a similar age did not mitigate the objective seriousness of the offence given the non-consensual intercourse: R v Shortland [2018] NSWCCA 34 ("Shortland") at [15] and [87].

Consideration of Ground 3

1. The respondent conceded on the appeal that the appropriate finding was that the respondent knew that the complainant was not consenting to penile/vaginal intercourse. In light of that knowledge, as well as the factors indicating the objective seriousness of the offending as discussed under Ground 2, the plea of not guilty and the lack of any remorse, I am of the view that the sentence is manifestly inadequate.
2. The two cases submitted by the respondent as constituting more serious examples did not assist him. This is for a number of reasons. First, Burton involved a plea of guilty in the Local Court, entitling him to a 25% discount. The nature of the intercourse was cunnilingus for 15 seconds. Mr Burton's state of mind was recklessness rather than actual knowledge and there were immediate admissions to the police in an interview. There was evidence of his distress and remorse. Second, in relation to Francis, although this was a finding of guilt following a trial, the only evidence of the act in that case was that the offender had been performing cunnilingus on the victim for under a minute and then observed she was asleep. It did not involve knowledge of lack of consent or any active resistance by the victim. There was evidence of remorse and there was evidence of traumatic events in the offender's background including that he had been a victim of sexual assault when he was 15, his parents had recently died, and he had sole custody of his child as a result of a violent relationship. He also had a diagnosis of autism.
3. As stated by the High Court in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]: "As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil‑Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel." (Footnotes omitted.)

Residual discretion

1. As noted above at [131], the Crown must "negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised" (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting Hernando at [12]). Whilst the primary purpose of an appeal by the Crown against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons", such guidance "should not come at too high a cost in terms of justice to the individual" (Green at [1], [43]).
2. Received on the appeal was an affidavit from the respondent's mother outlining the ongoing mental health difficulties experienced by the respondent, the respondent's continued adherence to attending work, his continued engagement with his supervisor on the Community Correction Order, his performance of his community service hours around a full working week (including many early starts and some night work) and that by the time of the hearing of the appeal on 18 October 2022, he would have completed approximately 95 hours. There was also evidence that he has been assessed as a low risk offender such that he has worked without supervision since 22 August 2022. He has also been attending regular psychological therapy. The mother's affidavit attached a report from the respondent's psychologist who noted that on a recent appointment prior to the appeal, the respondent was scoring in the "extremely severe range for depression, severe range for stress and severe range for anxiety. He has severe concerns regarding his ability to cope if he were to be incarcerated" (emphasis omitted).
3. On 22 June 2023, the Court was informed that as at 14 June 2023, the respondent had completed all the requirements of the community service work condition of his Community Correction Order.
4. At the hearing of the appeal the Crown conceded that the performance of some portion of community service is a factor relevant to the exercise of the discretion. The fact that the respondent has now completed his community service work hours is clearly an even more powerful factor in favour of the exercise of the residual discretion. Further, the "effect of re-sentencing on progress towards the respondent's rehabilitation" is another appropriate factor to take into account as one of the factors which may combine with others to produce injustice if a Crown appeal is allowed: Green at [43] and see R v Reeves [2014] NSWCCA 154 at [17]-[19]; (2014) 243 A Crim R 558.

Endnote

1. It can be noted that the determination of this appeal falls under definitions of "consent" and "knowledge about consent" which are now repealed, but which continue to operate with respect to offences committed prior to 1 June 2022. In November 2021, the NSW parliament passed legislation, which came into effect on 1 June 2022, in relation to consent and knowledge of consent in the context of sexual activities: see ss 61HF-61HK Crimes Act enacted by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). The legislation arose from a report of the NSW Law Reform Commission Report 148: Consent in relation to sexual offences (September 2020). Those provisions include those which make explicit many of the principles identified under the pre-existing law. In my view the new provisions would not have affected how this matter was determined given the particular facts of this matter.

Amendments 29 June 2023 - Typographical error on title page DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2023