R v Smee

District Court of NSW|2023-12-01

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender) File Number(s): 2020/00358616

Introduction

On Tuesday, 1 August 2023, the trial of Jayden Smee was allocated to me, in the District Court Sydney. First, to resolve questions of law, which did not, in the result, consume much time; thereafter, for the trial to commence with the selection of a jury. Before this, the accused was arraigned and pleaded not guilty to each of the charges presented in the original indictment.

The Indictment

The indictment upon which the Crown proceeded alleged two offences from a single event. The charges were identical and in the following terms: On 14 April 2019, at Concord, in the State of New South Wales, the accused did have sexual intercourse with CE, without the consent of CE, knowing that she was not consenting, in circumstances of aggravation, namely, that, at the time of the offence, CE was a person under the age of 16 years, namely, 15 years. The offence is contrary to s 61J(1) of the Crimes Act 1900 (NSW).

The Verdicts

The trial continued until 8 August 2023, when the jury retired. The jury returned on 10 August 2023, with a verdict of not guilty for count 1, and a verdict of guilty for count 2.

Penalty

The penalty provided for the offence is imprisonment for 20 years, with a standard non parole period of 10 years for the purposes of Pt 4, Div 1A Crimes (Sentencing Procedure) Act 1999 (NSW).

Pre-Sentence Custody

The offender has not been in custody for this offence and has not been subject to bail during the adjournment periods.

The Offender's Admissions

The offender did not give evidence in the trial, but called evidence from his mother and life partner, who offer that he is a person of good character, upon which he relied before the jury.
The offender participated in a lengthy and probing interview, conducted by a detective from Queensland, at the request of the NSW Police. He was fulsome and responsive when answering questions, including admissions that fellatio and cunnilingus occurred, without which the Crown could not succeed at all in the prosecution of the offences charged. Although there were circumstances from which one might reasonably infer that the victim and the offender were engaged intimately, the sexual intercourse alleged was not seen by the victim's companion and the victim had no memory of it. The evidence that there was sexual intercourse, by way of fellatio and cunnilingus, upon which the indictment was presented, fell from the offender in the admissions he made in the electronically recorded interview conducted by the Queensland detective.
The admissions are consistent with what he is attributed as saying to the psychologist who provided a report for the sentence proceedings. According to the report, at paragraph 1: "He was a little tense initially and acknowledged experiencing anxiety over the outcome of this Court proceedings. He showed some lack of knowledge and experience about sexual matters at the time of the index offence, indicating that he had considered oral sex to be 'foreplay', rather than intercourse. He has since gained a maturity and greater awareness of sexuality, especially after he has been in a stable relationship."
His ignorance of law reflected in this attribution would not have assisted the offender in the trial, considering the issues upon which it was contested, namely, whether the complainant did not consent and, if so, whether the accused had the requisite knowledge thereof. There is little comfort for him if it was his belief that this was acceptable foreplay, considering his disregard of the victim's incapacity to grant or withhold her consent, because of her intoxication.
There is a question of whether the admissions he brought to account in the offender's favour for the assessment of sentence and, if so, how they ought to be viewed for these purposes, and whether he is entitled to leniency because of them. The Crown position is that, though the admissions might excite sympathy for the offender for without them, the prosecution for the offence of which he was found guilty could not have succeeded. They might be recognised to have some value in the offender's favour in this limited way: they do not serve to ameliorate with a specified discount expressed as a percentage of the sentence to which he is otherwise exposed, and they do not provide any basis upon which the Court might find the offender to be contrite and remorseful, considering that they were made, representing that his conduct was no more than foreplay.
The offender's position is that the admissions attract a discount, perhaps upon the application of the principles for which the decision in R v Ellis (1986) 6 NSWLR 603 is authority, now enshrined in s 23 of the Crimes (Sentencing Procedure) Act 1999.
Consideration of the Ellis principle arose in circumstances, including where an offender pleaded guilty and, in addition, sought further leniency for the disclosure of information regarding the offence not known to the police beforehand. Although s 23 of the Act was promulgated after the decision in Ellis and requires the Court to consider matters specified in s 23(2) in reaching its decision, the decision in Ellis, and subsequent authorities in which it was considered, may be of assistance.
The Crown submits that considerations for which R v Ellis, Ibid, is authority and the provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999 are of no avail to the offender. 1. First, it is apparent that he participated in the interview, unaware that he had engaged upon sexual intercourse, as defined in s 61HA of the Crimes Act 1900. 2. The psychologist attributed him with the admission that what he did was foreplay and not sexual intercourse, which he declined, as he said in the interview, because the victim was drunk. According to his perception, this was sexual activity, which, upon the jury's decision, was unlawful, because it was without the complainant's consent, to the offender's knowledge. 3. The foreplay, as he described it, was, upon his version, with the victim's acquiescence and upon her requests of him. The only available source of what occurred fell from the offender, in his interview, for no other person present saw what occurred on those specified occasions. I would qualify that proposition with what is contained in the electronically recorded interview of the version given by the complainant at p 41, extending to p 42. It was apparent, in my reading of these responses, that the complainant was less than cogent in her assertions. She was asked, at question 379 on p 40: "Q379. Okay. Um, were you attracted to this person? A. (No reply) Q380. No? A. Not that I know of. Q381. Okay. You said previously, you, probably did not say, 'No'. What do you mean by that? A. It's clear there was some sort of sexual activity. Q382. Aha. A. And I think, in the state of mind I was and whatever I had had, um, whatever I was thinking, I didn't tell him to stop and I didn't say, 'No'. I might have even initiated it, I don't remember, but I, I don't think that I made him stop, although I did say, 'No', to him. Q383. What makes you say that, um, there was clearly sexual activity? A. I remember being naked, I was found naked with bruises on my body, and I remember being on top of him, and the sentence which I already mentioned. I don't remember the Actual sexual activity, but I remember being taken to a sexual assault counsellor. Q384. Okay. What would make you think that, um, you may have initiated it? A. I did have alcohol, um, that's all I remember I had, apart from a few chips, so if I actually did black out from alcohol, then I might have been drunk enough to potentially have initiated it. Q385. Okay. You said, um, also, after the comment, um, you probably didn't say, 'No', you were extremely intoxicated, um, when did you become ins(as said), extremely intoxicated? A. From the moment I started to forget things and I couldn't see the whole picture. From the moment I, I couldn't remember every single little detail. Q386. Was there any other feeling you had at this time? A. No. Q387. No. You said that you remember the words, 'Get it in'. Do you remember, um, whose voice A. I said that. Q388. You said that? A. I think so I think I did. Q389. You also said that, um, you were both naked. Do you remember how he got naked? A. No." There is, at least in my perception of the matter, a degree of reconstruction to be inferred from the way those questions were answered by the complainant on this topic. 1. Fourthly, the inference to be drawn is that the offender participated in the interview, without the intervention of a lawyer, and notwithstanding that he was administered the caution, confident that upon his perception of the description of the events he provided, he was not at risk from his behaviour. 2. It must be that the jury concluded the description given by the offender was accepted as allowing the reasonable possibility that what he said might be accurate, if not entirely, at least to some extent. Nonetheless, the Crown argues that the admissions implicating the offender in the commission of the offence of which he was found guilty, and of the actus of the offence of which he was acquitted, ought not be permitted to ameliorate the appropriate sentence, since the principles for which the authorities and s 23 of the Act do not apply to them in this case.
The Crown acknowledged that, although there is no express reference to s 23 of the Act to proceedings upon a plea or pleas of guilty, and that the authorities, beginning with R v Ellis, Ibid, expressing the common law and with reference to this provision, were all concerned with sentence proceedings upon a plea of guilty, and the additional consideration required when the police and prosecution were assisted with further information by the offender, there is scope for the operation of these principles, if it is appropriate, in the present case, after a finding of guilt: R v XX [2017] NSWCCA 90, DXH (A Pseudonym) v The Queen [2023] NSWCCA 140.
With due acknowledgement to the Sentencing Bench Book, and Criminal Practice and Procedure NSW, published by Butterworths, the following statements are relevant in the circumstances.
R v Ellis, Ibid, was decided before the enactment of s 23 Crimes (Sentencing Procedure) Act 1999. The Court held that an offender who voluntarily discloses involvement in serious crime, about which the police had no knowledge, was entitled to a significant added element of leniency. In R v Ellis, Ibid, the respondent pleaded guilty and also voluntarily disclosed to police, for the first time, his involvement in seven armed robberies. The degree of leniency afforded to an offender in such a case will vary, depending upon the likelihood of discovery of the offence. In R v Ellis, per Street CJ, at 604: 1. A plea of guilty will entitle a convicted offender to an element of leniency in the sentence. 2. The degree of leniency may vary, according to the degree of inevitability of conviction, as it may appear to the sentencing judge, but is always a factor to which greater or lesser weight must be given. 3. When conviction follows a plea of guilty that is the result of voluntary disclosure by the offender, there is a further element of leniency and, where it is unlikely that guilt would be discovered and established, were it not for the disclosure, then a considerable degree of leniency should properly be extended.
Following CMB v Attorney General (NSW) (2016) 256 CLR 346, it has been accepted that assistance of this kind may entitle an offender to a reduced sentence under s 23 of the Act. R v Ellis, Ibid, and subsequent authorities in which it was considered provide guidance as to why such assistance may justify a sentence discount under s 23: R v SS [2021] NSWCCA 56, at 43 to 44, and the discussion at paras 59 to 65.
In Ryan v The Queen (2001) 206 CLR, McHugh J discussed the extent to which leniency may be extended, pursuant to R v Ellis, Ibid, saying, at paragraph 15, that: "The statement in Ellis, that 'the disclosure and otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle, or, perhaps more accurately, of a factor, to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant, and not insubstantial, matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case."
In R v GLB [2003] NSWCCA 210, the Court held, at 33, that, although some discount should be allowed: "… a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge's remarks on sentence that the judge has allowed a considerable or significant discount on this ground."
Howie J said, in Lewins v The Queen [2007] NSWCCA 189, at 18: "Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender."
In Panetta v The Queen [2016] NSWCCA 85, the applicant was entitled to considerable leniency for his confession, in circumstances where there was no prospect of a murder, or the offender's involvement in it, becoming known (see paragraph 70). On the other hand, in R v SS, Ibid, the offender was not entitled to leniency in his sentence because of his admissions, as there was independent evidence of his guilt (paragraph 83).
The entitlement to a discount applied, albeit to a lesser extent, where, from a co offender, the police were close to identifying the offender, at which point the offender voluntarily surrendered and confessed (see R v Hassan [2005] NSWCCA 21, at 23).
There is no limitation, in the language used in s 23 of the Act confining the operation of the section to proceedings upon a plea or pleas of guilty, but the language used in s 23(1) and s 23(2), paras (d), (f), (h) and (i), connote that the provision contemplates the provision of assistance by a person facing sentence for a matter that is not the subject of information provided. Thus, the Crown's acknowledgement that it is not excluded in cases where there is a finding of guilt after trial is sound.
As presently informed, there is unavailable any authority in favour of allowing the offender, for sentence after trial, a discount for the assistance he provided by his admissions relevant to the charge or charges presented. However, there is authority to the contrary in the following examples: 1. Unwitting assistance given by an accused person does not come within the scope of the section. In R v Calderoni [2000] NSWCCA 511, the accused gave evidence, in his trial for murder, admitting involvement in another offence and was charged with that, after being acquitted of murder. 2. Neither is the fact that the offender voluntarily supplied the police with a DNA sample, or a handwriting sample, or made a statement, not knowing it was incriminating, a matter justifying a grant of a discount for assistance to authorities (R v Fernando [2004] NSWCCA 147). 3. Provision of a password to enable police to access a computer did not merit a discount in the circumstances of the particular case (JL v The Queen [2014] NSWCCA 130).
On the other hand, in Howard v The Queen [2019] NSWCCA 109, it was held that admissions made by the offender to investigating police amounted to assistance, within the section; its utility to be considered according to the provisions of the section. In Le v The Queen [2019] NSWCCA 181, the accused made statements to police during the execution of a search warrant at his home on a charge of cultivation, but the statements did not amount to assistance under the section because the accused did not admit to any offending unknown to the police but merely indicated his involvement in the cultivation at the lowest level. Even if it did amount to assistance, it did not warrant any discount.
Significantly in this case, the offender, I find, described the sexual intercourse, which he admitted, unaware that he was admitting that he had engaged in conduct that was captured by the expanded definition of "sexual intercourse", R v Fernando, Ibid, and exposed the specific acts of sexual intercourse in the sequence of events of which the police were aware from their investigation, leading to the request for him to be available for interview: Le v The Queen, Ibid.
Regardless of the precise nature of the sexual assault, which he admitted, the evidence before the jury allowed as the only reasonable conclusion to draw that there was sexual assault of which the police were aware, drawing upon the facts and circumstances in which the offender and the complainant were seen in the state of undress and including the injuries that the complainant sustained.
The decision of the offender to precisely frame the nature of the sexual assault, about which he was attributed with the descriptor, "foreplay", does not attract consideration of these principles when it could not be suggested that the offender introduced information afresh to the benefit of the investigation.
I should pause to note my reference to the injuries that the complainant suffered does not mean to imply that it could be said that the offender was responsible for any of them, as a finding of fact available on the evidence before the Court, but they do have significance in another respect, to which I shall come.
Section 22A, Crimes (Sentencing Procedure) Act 1999, provides for leniency to a cooperative offender convicted after trial. It deals with the power to reduce penalties for facilitating the administration of justice. Subsection (1) provides (emphasis added): "(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
The consideration of the application of this provision to the offender's disclosure is also assisted by the authorities to which I have referred, particularly those in which the assistance concerned pursuant to s 23 of the Act concerns the offence for which the offender is being sentenced.
Significantly, the offender did not distance himself from the admissions, and focused his defence in the trial upon whether the evidence proved that the complainant did not consent and, if she did not, whether the evidence provided that he knew so before he appreciated that she was not responding to him, at which point it was argued that he desisted. The resolution of this turned upon the expert opinion of the pharmacologist.
Upon this analysis, whether upon the application of s 23 or s 22A of the Act, I am satisfied that the offender is not entitled to leniency because of his admissions to police that he engaged in sexual intercourse with the victim, which he did not believe exposed him to sanction. He persisted in his defence that he had conducted himself with the complainant's consent or did not know that she was not consenting and was unaware that she was not of an appropriate age. I accept that, without the admissions of the sexual intercourse, the prosecution of the charges presented was doomed to fail upon the remainder of the evidence in the Crown case.
However, there was ample evidence of facts and circumstances from which to infer that an offence of indecent assault, or some other, comparable offence, might have been available, without the admissions by the offender. Although, in the prosecution of the charges upon which he was presented, his admissions were central to the success of the Crown case on count 2, of which he was found guilty, he persisted with the case of consent and that he did not know that the complainant was not consenting.
Nonetheless, if the offender should have consideration of these principles, I agree with the submissions by the Crown with regard to s23(2) of the Act.
The Crown acknowledge that the offender's disclosure to the Queensland detective was significant, considering that it formed a foundation for one element of the offence and provided some evidence in support of the other two elements, and accepted that the disclosures were truthful facts. However, the Crown correctly noted that the disclosure was not complete, since the offender did not admit that he knew that the victim was not consenting, they were not made until interviewed by the police when police first spoke to him, and he has gained no benefit from disclosing the information.
The Crown submitted that the significance of the assistance must, however, be measured in the context of the trial, where the offender challenged the character of at least one admission, namely, the description of the victim's profound state of intoxication at the time of the offence, characterising it (the offence) as one where the victim was consenting, and the timing of the admission about the victim's profound state of intoxication and when he was aware of it relative to the conduct charged.
The Crown noted that s 23(3) provides that a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
The offender had not added written submissions upon this provision to the material upon which he relied. This has been remedied since and written submissions were provided between the conclusion of the hearing of this matter and today, when the judgment and sentence were to be delivered. I have written submissions provided by counsel, bearing the date of 11 December 2023.
These submissions argue that the admissions of the offender were critical to the Crown case, without which he would not have been charged and would not have been convicted.
This proposition must be qualified with the statement that he would not have been charged, and would not have been convicted, with the offences upon which he was presented. As I indicated, upon my assessment of the material before me, there was ample evidence of facts and circumstances from which to infer sexual activity that might well have founded other charges, had the prosecution been minded to proceed.
The submissions add that the jury's acquittal on count 1 means there was non-criminal sexual activity moments before count 2, the extent of the knowledge of lack of consent is highly constrained, and, for these reasons the offence should be seen at below midrange, if not at the lowest level, of seriousness for the offence.
It is also said that the age of the victim was unknown to the offender is a matter that requires an assessment of objective gravity at the lower level.
It is also said that it was open to find from the jury's verdicts that they accepted that the victim had the capacity to consent to the sexual behaviour leading up to the act of cunnilingus.
This does not necessarily follow. My view of the facts established by the evidence is the jury found that the complainant was not in a position to consent, by reason of her state of intoxication, considering the evidence given by the pharmacologist, Professor Farah. The conduct described by the offender, and attributed to the complainant, leaves the possibility that, in respect of the events founding count 1, he did not have the necessary belief that she was not consenting. I will say more about that in due course.
It is said that, far from displaying callous disregard for the victim, the decision by the offender to desist, when he was aware that she was "drunk", reveals that his attitude was other than one of callous disregard. I am invited to the decision of Z v The Queen [2014] NSWCCA 323, dealing with the decision in SZ v The Queen [2007] NSWCCA 19, and the approach to be taken toward a percentage of discount, if one is to be applied.
The reference to those two authorities was in the context of the approach to be taken when applying s 23 Crimes (Sentencing Procedure) Act 1999 to a discount, if one is appropriate under that provision, to the sentence that might otherwise be imposed. I am not persuaded that the offender is entitled to a discount for assistance, either upon the common law, for which the decision in Ellis, Ibid, is authority, or the application of s 23 of the Act.
With regard to s 22A of the Act, and consideration of the extent to which the offender facilitated the administration of justice, his admissions were when he was ignorant of the law, which provided for his conduct as sexual intercourse, and had the perception that he was engaged only in foreplay, which he said was consensual and which he said he did not know was otherwise.
The offender did not attempt to go behind his admissions that he engaged in fellatio and cunnilingus. The trial was conducted squarely upon consent and knowledge of lack of consent, and challenges to the evidence of the impact of intoxication, including the opinion evidence of the pharmacologist. Witnesses to the event and circumstances were required for evidence and cross examination to challenge the extent to which the complainant exhibited signs of intoxication, and whether she did consent or presented, at the material time, such that the offender knew that she did not consent, through her inebriated state.
I do not accept that, in these circumstances, there is scope for allowing the offender consideration for the facilitation of justice in the conduct of the trial.

The Facts

It is my task to find facts upon which to determine sentence consistent with the verdicts of the jury. I am to inform my own view of the facts. Where there might be controversy, I am not bound to proceed upon facts that most favour the offender, but those which inform the objective seriousness of the offence, must be proven to the standard of "beyond reasonable doubt", and those which the offender would advance in mitigation will be accepted if proven upon the balance of probabilities: Cheung v The Queen (2001) 209CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; R v Isaacs (1997) 41 NSWLR 374).
Considering the issues in dispute, since the offender is not guilty of count 1 but guilty of count 2, the evidence and submissions by the Crown, and counsel for the accused, require analysis with reference to the responses by the offender to the interviewing police.
The Crown case was that the complainant and her friend, GD met with BS, a young man known to GD, on the evening of the offence. The offender accompanied BS. The girls had undiluted vodka, which they consumed. GD also consumed soft drink. The offender and BS did not drink, other than for the offender taking a sip of the alcohol.
The complainant consumed a greater quantity than GD and became progressively intoxicated through the absorption phase until her peak blood alcohol level when she was heavily sedated. Thereafter, during the elimination phase, which took some time, an ambulance was summoned because of the complainant's state and she was taken to hospital.
Prior to sedation, the group played "Spin the Bottle", which led to the couples separating. GD and BS engaged in sexual activity until she took offence and left him to seek out the complainant so they could leave. The complainant and the offender were together, seen by GD, with the complainant exhibiting signs of intoxication, her clothing removed and the offender with his pants down.
GD did not see the sexual activity, and the victim had no memory of any sexual activity with the offender, subject to what I observed previously regarding the content of the interview, MFI 2, in which, as I find, the complainant offered a description in response to questions, which at least carry the implication of reconstruction on her part.
The investigation led to the offender's interview in Maroochydore, Queensland on 24 May 2020. He attended there freely, without assistance of a lawyer or support person, and participated in the interview, regardless of the caution administered that he need not to do so, that what he said might be presented in evidence, and that he could have a lawyer present if he wished. He was not under arrest.
In the interview: 1. He provided his birthdate in the second half of 2000. He was, therefore aged 18 at the time of the offence, 14 April 2019, and 19 at the time of the interview, 24 May 2020. 2. He could not remember much about the event (question 42 and following). 3. He and his friend, BS, played golf on the day and met up with the two girls. He had not met them before. BS knew them, he assumed through school (question 53 and following). 4. They walked to Massey Park, Concord. The girls had a small water bottle with vodka, from which he had a sip (question 85 and following). 5. He thought BS told him the victim was aged 16 (question 99 and following). 6. There was no discussion beforehand of their intentions with the girls (question 112). 7. He called an ambulance. They assumed the victim had alcohol poisoning (question 117 and following). 8. He recalled the victim fell over quite a bit that night, but not when (question 119 and following). 9. He did not recall what happened to the ambulance or the victim, or what time he and BS left the girls. 10. The group walked from the pro shop to the 17th tee of the golf course, sat and played "Spin the Bottle", after which the victim began to make out with him. Before, she was running around and fell over some rocks nearby (question 135). 11. During the course of the evening, the victim removed clothing (question 160). She wanted him to give oral to her (question 162). He did so (question 165, question 171 and following). She removed her clothes but, when she struggled, he helped (question 168). 12. Before this, she removed his pants and performed fellatio (question 186 and following). 13. He did not have intercourse otherwise, though she wanted him to do so, indicated by her saying, "Put it in", to which he said, "No. You're too drunk" (question 194 and following). 14. She was pretty drunk, going in and out of consciousness. He kept slapping her face gently to wake her up (question 204 and following). 15. He thought he had to wake her up around three times when he was engaged in cunnilingus (question 2010 and following). 16. Her eyes kept going back into her head and her head kept going to the side (question 214 and following). 17. He recalled the victim vomiting (question 234 and following). 18. He was completely sober (question 241). 19. He left the location and the girls when the ambulance was called, in case they thought he had done something wrong (question 254 and following). 20. The sequences as described were summarised by the detective and adopted by the offender (question 244 and following).
Thus, the offender admitted the complainant had fellated him and he performed cunnilingus upon her, in the course of which her head rolled to the side and her eyes rolled back in her head. She was intoxicated such that he felt it necessary to slap her face three times, albeit lightly, to ensure her consciousness, and he was unaffected by alcohol. He represented that she said, words to the effect of, "Put it in", but he refused, for the reason that she was "drunk", to use his term.
As the couples separated after the game of "Spin the Bottle", GD offered the offender a condom, which he declined, because he would not need it.
The issue for the jury was whether the Crown could prove that the complainant did not consent to the sexual intercourse, by way of fellatio and cunnilingus, and, if she did not, was her lack of consent known by the offender.
In her closing address, the Crown advanced the following submissions: 1. The accused need not have participated in the interview with police, but did so, and admitted to the acts of fellatio and cunnilingus with the complainant. 2. The complainant was 15 years old at the time. 3. Since the complainant had no memory of those acts, the Crown relied upon the offender's admissions to prove beyond reasonable doubt that the act of sexual intercourse took place. 4. The complainant was substantially intoxicated at the time of each act of sexual intercourse, of which the accused was aware at the time. 5. The complainant was substantially intoxicated at the time of each act of sexual intercourse, considering: 1. She lost control of her head and eye movement when the accused was engaged in the act of cunnilingus; 2. He was aware of this, whilst he was in the act of cunnilingus; 3. Pharmacologist Professor Farrar opined that this is evidence of substantial, if not profound, sedation and at least substantial intoxication at the time. Professor Farrar said the effects of alcohol are progressive and, at the initial stages, disinhibiting, but one might have their balance and be capable of cartwheels early on, which the evidence revealed the complainant had performed; 4. Professor Farrar said, as blood alcohol concentration increases, there is increased sedation, with progressive cognitive dysfunction and dysfunction of psychomotor skills, impacting the ability to control bodily movements and speech; 5. When the accused performed cunnilingus, the effect of alcohol was profound and would have been so for five to ten minutes; 6. The complainant was at least substantially intoxicated during both acts of sexual intercourse, since they were within a short period of time of each other. The accused said the cunnilingus took about five minutes and the fellatio, a couple of minutes. His pants stayed off during both acts of sexual intercourse; 7. Professor Farrar said her state of intoxication during the cunnilingus would not be different within the preceding five to ten minute period, since blood alcohol concentration cannot change so quickly within that time; 8. GD described symptoms with which the victim presented indicating substantial intoxication, and when the sprinklers came on at the golf course the victim rolled around on the ground, she started running, she said she had to go to the toilet, she urinated, she said she needed to find toilet paper but then sat down in her urine, the victim was not following GD when she tried to move her and she had assistance from the offender, the victim was then not speaking normally, was disinhibited in what she said, with slurred speech reflecting her loss of her fine psychomotor skills; 9. Professor Farrar opined that these behaviours demonstrated extensive impairment to the victim's functioning. 1. Evidence in the Crown case included the pre-recorded interview of GD, captured about 48 hours after the offence occurred and recent in her memory. She described the victim's intoxication when she urinated on the grass and when she was taken into the care of the ambulance officers. She looked for the victim after BS acted improperly, recording images of their intimacy, or seeking to do so, and wanted, thereupon, to leave with her. She saw the victim in her intoxicated state which the jury were asked to accept and to place into context her evidence in Court years later which might have been inaccurate considering the time since the offence, and her immaturity at age 15 in contrast to her age at 19, when giving evidence. 2. The Crown urged the jury to accept as true and reliable GD's representations made shortly after the event. Though she too, had consumed vodka, it was not in the same quantity as taken by the victim and she was not as affected, consistent with her presentation in the triple 0 call she made in the interests of the victim, in which she exercised good judgment and could follow instruction successfully, notwithstanding the extent to which she was upset, as heard in the phone call. She spoke clearly and her speech appeared unaffected. 3. The Crown submitted, to the jury, BS was not a witness whom the jury could find to be truthful and reliable, for various reasons, including that there was no near contemporaneous recording of his perceptions of the event, and he made no statement until a month after, with a recollection of events that did not include the victim running and falling, even though the offender and GD had seen her do so. 4. The Crown submitted that GD's evidence of the victim's intoxication, read with the admissions by the offender, challenged BS's representations about his perception of the victim's state, and that his evidence should be put aside. 5. The Crown submitted that the jury would find beyond reasonable doubt that the victim did not consent to the acts of sexual intercourse, notwithstanding that there was no direct evidence from her that she did not, unsurprising in the circumstances of her substantial intoxication, and that her substantial intoxication explained any appearance that she might have consented. She stopped drinking before the acts of sexual intercourse, proximate to the game of "Spin the Bottle", after which, her blood alcohol would have begun to rise. According to GD, the consumption was between 6.30pm and 7.30pm. Professor Farrar calculated that if the victim stopped drinking at 7.40pm, the concentration of alcohol in the blood 30 minutes later, at 8.10pm, would have been between 0.21 and 0.27 grams of alcohol in every 100 millilitres of blood. The minimum range Professor Farrar calculated was a reading of 0.20 grams of alcohol in every 100 millilitres of blood, with the effects to be expected, as observed by GD, and admitted by the offender. 6. There was no controversy about the primary facts that led to the opinion given about the blood alcohol level calculated by Professor Farrar. 7. Substantially intoxicated, the Crown submitted, the jury would find that the victim, therefore, behaved as described and appeared to consent to what befell her. Professor Farrar said, at that concentration, a person would experience substantial impairment of cognitive function, that is, their ability to be aware and to use their senses, with substantial diminution of their executive functions and ability to reach judgment upon their perception of circumstances (transcript 175, lines 16 and 19). 8. The Crown submitted that this opinion extended to the victim's perceptions of sexual intercourse, when it occurred and before, and she was compromised through intoxication when she consented to, or appeared to consent to, engage in the acts of sexual intercourse.
I directed the jury in terms of s 16HE Crimes Act 1900, that a person does not consent to sexual intercourse if they consented whilst substantially intoxicated by alcohol; that, if satisfied the complainant consented because she was substantially intoxicated by alcohol, it did not necessarily follow that the jury should be satisfied beyond reasonable doubt that she did not consent; that the essential matter the Crown must prove was that the complainant did not consent, in the sense that she did not freely and voluntarily agree to the sexual intercourse, because she was substantially intoxicated by alcohol; that the Crown could succeed if it proved beyond reasonable doubt that the complainant did not freely and voluntarily agree to the sexual intercourse with which the accused is charged, because her consent to sexual intercourse was while she was substantially intoxicated by alcohol.
SHORT ADJOURNMENT
In the course of my judgment, so far, I referred to the man BS having recorded, or attempted to record, intimacy in which he and GD were said to engage, which prompted her to abandon that conduct, and seek to re-join the victim. The Crown rose to remind me, before I resumed, that was material excluded from the jury. It is not relevant to the assessment of sentence in this case, in any event, but it does provide an understanding for how GD came to be looking for the victim, and how she came to observe her in the state that she described.
Returning to the text of the judgment, after I outlined, in terms, the direction I gave to the jury regarding the victim's intoxication, I continue. 1. The Crown submitted: 1. In her compromised state, the jury would find that the victim was not freely and voluntarily consenting at the relevant time; 2. The fact that she initially kissed the accused when less intoxicated would not cause the jury to doubt that she was not freely and voluntarily consenting to sexual intercourse assessed at the time of the sexual intercourse; 3. The process of intoxication was progressive, from when she was less affected, through disinhibition, to the sexual intercourse, when she did not freely and voluntarily consent; 4. The victim's evidence included her perception that she has a measure of control over her behaviour, when intoxicated, that she can be silly if she wants, or serious when she wants, and that she did not believe that she had behaved strangely at a particular point in time, relevant to which was the evidence of Professor Farrar, that individuals such as the victim often, after drinking, had diminished capacity to evaluate their level of sobriety. 1. The evidence of her presentation at the golf course at the time of the sexual intercourse was that from intoxication she had passed the threshold for behavioural tolerance. 2. Behavioural tolerance, according to the opinion of Professor Farrar, arises when one is accustomed to an amount of alcohol, which, upon her evidence, was four to five shots of spirits, which, before these events, she regularly consumed in Italy, over a few months. 3. According to the evidence of Professor Farrar, the Crown submitted, one can learn to mask their behaviour, mask the effects of alcohol, but this still correlates to the amount of alcohol customarily taken. 4. On the night of these events, the victim drank far more than she took customarily, from six and a half to ten shots, and did not have the behavioural tolerance to camouflage intoxication as revealed in the evidence from the offender and GD; she lost control, to the point of urination. 5. The victim was beyond the point of behavioural tolerance, and impaired from the alcohol to a substantial degree, and when affected, so, did not freely and voluntarily agree to the acts of sexual intercourse that she engaged upon with the accused.
After dealing with those propositions, the Crown turned to the elements.
Addressing the element that the accused knew that the victim did not consent to the sexual intercourse, the Crown argued that the offender was aware that the victim was suffering from the effects of intoxication, and was substantially intoxicated, upon the following analysis: 1. The offender was present with the victim when she was substantially intoxicated and when each of the following occurred; 2. The victim was exhibiting clearly observable signs of a significant intoxication during the sexual intercourse; 3. The offender was sober and knew the victim had been drinking alcohol; 4. The offender was present with GD to see the victim's behaviour, including when sprinklers activated nearby; 5. The victim presented symptoms of intoxication, in her slurred speech, loss of balance, and falling, and when talking, and said whatever came to her mind, her urination, all observed by GD, which worried her; 6. It was implausible that the offender would not have made the same observations; 7. GD gave evidence that the offender reassured her that he would help the victim, evidence, if accepted, that the offender was aware that she needed assistance when he reassured GD that he would provide it; 8. The offender told the interviewing police that he recognised the victim was drunk, and would not participate in penile vaginal sexual intercourse; 9. If one accepted the evidence of Professor Farrar, the victim's intoxication would not have changed within the five or ten minute period before he declined penile vaginal intercourse because she was drunk. One does not become suddenly inebriated, with the onset of symptoms, from a state of functionality; and 10. The offender acknowledged to the interviewing police that the victim struggled to remove her clothing, and he completed the task for her.
The Crown submitted that the combination of these facts revealing the victim's dysfunction led inevitably to the conclusion that the offender well knew the victim was affected to a substantial degree, and it would be implausible that the offender did not realise the victim was too drunk, until she lost what Professor Farrar described as her vestibulocochlear reflex, when her eyes rolled back in her head.
I have referred to medical sources for the meaning of that term, which, it appears, is uncontroversial. The vestibular and cochlear portions of the vestibulocochlear nerve are functionally discrete and, so, originate from different nuclei in the brain.
First, the vestibular component arises from the vestibulocochlear complex in the pons and medulla of the brainstem, and the cochlear component arises from the ventral and dorsal cochlear nuclei situated within the medulla, and, thus, it is, as I understand the evidence, an assertion by the professor that those nerve tissues were compromised by the excessive ingestion of alcohol.
The Crown submitted that the offender knew the victim did not freely and voluntarily agree to either act of sexual intercourse at the time they occurred. The Crown referred to how it could prove the offender's state of mind. Either that: 1. The offender actually knew the victim did not consent, aware of the effects of alcohol upon her when the sexual intercourse occurred; or 2. The offender realised the possibility the victim did not consent, but, nonetheless, continued, aware of her state of intoxication and that it was possible that she did not consent; or 3. The offender knew the victim did not consent, since he failed to consider at all whether the victim consented, and did not care, notwithstanding the risk that she did not consent would have been obvious to someone with his capacity, if he turned his mind to it; or 4. The accused knew the victim did not consent, for even if the offender honestly believed that she did consent, in the circumstances he had no reasonable basis for believing so considering her intoxication and his knowledge of it.
The offender's counsel began her submissions by repeating the representations by the offender to the interviewing police: "I know she wanted to because I remember her saying, 'Put it in.' I said, 'No. You're too drunk.' When I was going down on her, she asked me that, to put it in."
Significant is the temporal connection between when those words are said to have been uttered and the activity upon which he was engaged which founds count 2, upon which he was found guilty.
Counsel conceded the events of the night were largely undisputed. The critical uncontroversial events were: 1. The offender and BS met up with GD and the victim; 2. The girls brought vodka and consumed it; 3. They went to the park, where the sexual intercourse occurred; 4. They played "Spin the Bottle" and the pairs separated to where sexual activity occurred between both of them; 5. The victim became so intoxicated that an ambulance was called.
The offender's admissions in the interview underpin the Crown case. There was no other evidence of sexual intercourse, apart from what came from him. The issues in the trial were whether the victim could, and whether she did, consent, and whether the offender knew she did not consent at the time of the sexual intercourse, and not later, from information that came to him afterward.
Counsel addressed the evidence of character upon which the offender relied and how it assisted him. The offender participated in the interview when he need not do so, disregarding the caution administered. It was 12 months after the incident. She addressed his presentation. He was, she submitted, truthful in his responses, the effect of which was that, when he realised her level of intoxication, he stopped, he took steps to obtain help, and, if this were a reasonably possible explanation for what occurred, the prosecution failed.
Counsel noted it was uncontroversial that: 1. There was sexual intercourse, as alleged; 2. The offender provided the only evidence and the circumstances and sequence in which they occurred; 3. The offender and the victim were making out, she took off his pants, she fellated him, he assisted her taking her clothes off, he went down on her, she wanted him to have sex but he said, "No"; 4. Had he not been so honest with the interviewing detectives, he would not be before the Court.
The controversy arose from the offender's assertion that the victim consented to sexual intercourse, which, in the circumstances, was a reasonable possibility, that the Crown could not disprove, considering the victim's actions as described by the offender.
Counsel submitted that her intoxication did not necessarily mean she did not consent, considering her words and actions and her demonstrated state of mind before and afterward. People can, and do, consent to sexual activity when intoxicated. There is no correlation between a lack of consent and her fragmented memory the next day. If there was a reasonable possibility that the victim's words and actions demonstrated consent, the Crown case failed.
Counsel highlighted the victim's conduct revealed in the evidence of those present at the time, including the offender, by way of his interview.
Counsel challenged the Crown's analysis of the evidence from Professor Farrar, and the inductive reasoning upon which he engaged, reaching opinions, working back from her state of intoxication, when the ambulance attended and the reported history of vodka consumption. The submissions accepted the state of intoxication, and limitations therefrom, at the point the ambulance was called and attended, but challenged propositions that there was a reliable analysis upon which to conclude that she was relevantly intoxicated at the time of the acts of sexual intercourse, said, correctly, to be the important issue, namely, whether she was relevantly intoxicated at the time of the sexual acts, and whether the offender knew so at the time, not afterward, when the ambulance was called or during the interview with the police, in which there was scope for the possibility that he reconstructed his memory of her presentation.
I interpolate here that the submissions of counsel regarding this required the consideration, as I believe I have undertaken, of the sequence of events and the point in time when the complainant exhibited the symptoms of profound intoxication, upon which the opinion of the professor relied.
Counsel noted the offender's age and relative immaturity at the time when the police interviewed him. Nonetheless, upon his version to the police, when he appreciated her level of intoxication, he desisted.
Counsel submitted that, aside from the offender's evidence, the descriptions given by the witnesses, including the complainant, regarding the complainant, up to the point when she went with the offender, she was affected, but not so impaired to justify a finding that, at the time of the offences alleged, she was relevantly intoxicated.
Counsel acknowledged that upon the description given by the offender when he saw her eyes rolling back, he correctly concluded that she was not well, he desisted and sought help. Counsel pressed the point that, at the time of the offences alleged, the evidence did not allow a finding of intoxication, sufficient to vitiate her apparent consent.
Counsel addressed the final element, the offender's state of mind, and the burden of the Crown, which could not be met, upon any paths by which the Crown might have proceeded. Counsel invited the jury to consider the mind of the 18 year old offender at the time of the sexual intercourse, and whether the Crown could attribute to him actual knowledge, recklessness, or disregard for the victim's consent, considering the evidence of the conduct and her participation. There was a reasonable possibility, it was submitted, that what the offender said in the interview was true, that he believed that she consented to the sexual intercourse.
For the purposes of sentencing, the Crown offered a summary of facts, which I accept, including: 1. GD and the victim were 15 years of age at the time. 2. The offender believed that the victim was 16 years of age at the time. 3. When they met up, the group of four walked to a golf club at Concord and en route the victim ate hot chips, shared with the offender and BS. 4. On the golf course, uninhibited from the alcohol, the victim ran about with GD, repeatedly fell, when she did so, suffered bruising to her right cheek, the back of her elbow and the right hip, with bruising and abrasions to both knees captured in the images appearing in exhibit J. 5. The victim consumed the greater quantity of vodka, undiluted, and GD also consumed, separately, soft drink. 6. The victim had a fragmented memory of events, and no memory of the sexual activity. 7. The offender represented in his interview that prior to the fellatio (founding count 1), the victim removed his pants and underpants, and, thereafter, when she had difficulty removing her clothes, he assisted her to remove her pants and underwear. 8. GD saw the victim exhibiting clear symptoms of intoxication and loss of control. 9. For about 30 minutes, the victim was motionless on the ground, was slapped by those with her for a response, but she was unresponsive, until she vomited during the triple 0 call made by GD. 10. The victim was transported by ambulance to a hospital, where blood was taken at 12.10am, and, upon analysis, had a blood alcohol level of between 0.17 and 0.19 grams of alcohol per 100 millilitres of blood, which, together with her height of 149 centimetres and weight of 49 kilograms, without the consumption of food on that day, led the pharmacologist, Professor Farrar, to the opinion that, whether she consumed the last alcohol by 7.40pm or at or before 7.50pm the evening before, her blood alcohol would have been: 1. between 0.21 and 0.27 grams of alcohol per 100 millilitres of blood at 8.10pm and 8.20pm; 2. between 0.20 and 0.26 grams of alcohol per 100 millilitres of blood at 8.30pm. 1. Thus, 30 minutes after she finished drinking, until she was conveyed, her blood alcohol would have been above 0.20 grams of alcohol per 100 millilitres of blood.
The offender's counsel provided her submissions on what ought to be the facts found for the assessment of sentence. These include: 1. The ages of the victim and her companion, GD, their stage of education; 2. The bottle of undiluted vodka that was three quarters full when first observed by the victim; 3. That both GD and the victim consumed from the bottle; at some point after 7pm, 1. The girls met with BS, accompanied by the offender; 2. The age of the offender, as described, and his belief that the complainant was 16 years old; 3. They walked to Majors Bay golf club in Concord; 4. They consumed chips; 5. All of the vodka had been consumed by the time they reached the 17th hole, save for 4 ml; 6. At the golf course, the victim was running around with GD. 7. The evidence included that they both grabbed the offender's groin, on the outside of his clothes, and that the victim kissed the offender. They sat down and played spin the bottle. They separated into their pairs. The victim could not provide a full description of the sexual activity to police. 8. The accused's interview, on 24 May 2020, included that they had made out for a period of time, that the victim removed his pants and performed fellatio. He made admissions as to the sexual intercourse the subject of count 2. He asserted that the victim wanted him to give her oral, but she was struggling to remove her clothing, and he assisted her. As he engaged upon that conduct, and his head was on her vagina, he observed her eyes rolling into the back of her head, so that her eyes were white, and the head kept falling to the side. He slapped her face around three times to wake her up. He was sober at the time. He asserted that, while he was engaged in cunnilingus, she told him to 'Put it in', but he would not do so because she was too drunk. 9. GD arrived shortly after, with BS. The group stayed with the victim before calling the ambulance, and the victim was transported. Her blood alcohol level, determined upon the analysis of blood taken, was acknowledged.
There is not a great deal of difference between the facts of which I am satisfied, and as I have summarised them, and what the offender's counsel has offered.

Findings

The verdicts reflect what are the appropriate findings of fact, considering the evidence in this trial.
First, the verdict of not guilty returned for the first count, the allegation of fellatio, is understandable, in circumstances where there was the possibility that the offender did not know that the victim consented to the sexual intercourse, by way of fellatio. Though I am satisfied beyond reasonable doubt that she was, at that point, sufficiently intoxicated to be incapable of consent to sexual activity, because her apparent consent was while she was substantially intoxicated by alcohol, the very act of fellatio, as described by the offender, upon which the Crown case depended, included a significant measure of prior activity on the part of the victim, such that it is open to find that the Crown had not excluded as reasonably possible that the offender believed that she consented to him inserting his penis into her mouth.
It was open to the jury to find, in respect of count 1, that the Crown had not excluded as a reasonable possibility: 1. The offender did not know the victim did not consent, even though aware of the effects of alcohol upon her when the sexual intercourse occurred, or 2. The offender did not realise the possibility the victim did not consent, or 3. The risk that she did not consent would not have been obvious to someone with the offender's capacity, if he turned his mind to it, or 4. He had a reasonable basis for believing that the victim consented, even considering her intoxication and his knowledge of it.
In these circumstances, the verdict of not guilty to count 1, I find, was appropriate. I have not overlooked that the description of the events is confined to representations made by the offender, and he is the sole source for the description of how that occurred and to the extent that the victim participated, subject to what I said earlier about the responses given by the complainant in her interview.
Nonetheless, considering the Crown's concession, when dealing with the argument upon the application of s 23, Crimes (Sentencing Procedure) Act 1999, that the jury must have accepted as reasonably possible, at least, the offender's representations regarding the act of fellatio, and that the Crown relied upon the admission that there was fellatio for the prosecution of count 1, I accept the verdict of not guilty to count 1 is not inconsistent with the verdict of guilty to count 2.
I have no doubt that the accused actually knew the complainant was substantially intoxicated at the time of the cunnilingus, upon which count 2 is prosecuted, to the point of loss of consciousness which he sought to address by slapping her face, and his observation that her eyes were rolling back into her head, which she was unable to control, allowing it to fall to the side, and that the accused therefore knew she did not consent to what he was about in the commission of the offence charged in count 2.
In the interview, he used the term "drunk", an imprecise term, reflecting his subjective assessment, but it must be the case that he thereby admitted that he was aware that the victim was substantially impaired by alcohol, even to the point of losing consciousness.
The term "drunk" or "drunkenness" is not presently defined legislatively, though in Acts of Parliament now repeated, the term "intoxicated person" was defined to mean "person who appears to be seriously affected, by alcohol or another drug, or a combination of drugs": s 3 found, respectively, in the Intoxicated Persons Act 1979 (NSW), and the Intoxicated Persons Act 2000 (NSW), and, for the purposes of the repealed Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW), in s 4, defined to mean a person of or above 18 years of age whose speech, balance, coordination, or behaviour is noticeably affected, and, in the circumstances it is reasonable to believe that the affected speech, balance, coordination, or behaviour is the result of the consumption of alcohol or any drug.
Before these Acts, for the purposes of summary proceedings for drunkenness, the meaning given to the term "drunk" was promulgated by the British Medical Profession to apply to a person if they were incapable of performing the task upon which they were engaged at the material time. In Bignold's Police Offences and Vagrancy Acts and Certain Other Acts, ninth edition, by A J Goran QC and R P Vine Hall, at p 70 and 71, the following appears, with reference to s 6, Police Offences Act 1901 (NSW), as amended and long since repealed: "6. Whosoever is found drunk in any street or public place shall be liable to a penalty not exceeding 2...'found drunk' means no more than that a person was in a street or public place and that he was drunk and that he was seen in that condition by the constable who arrested him contemporaneously... Test of Drunkenness. The appellant was convicted under s 30 of The Police Offences Act 1908 (NZ) of being drunk while in charge, in a public place, of a carriage. On appeal, held, that the test of a man being drunk, under the circumstances, must be: Was the person in charge of the vehicle in such a state from imbibing alcohol as not to be able to manage the carriage of which he was in charge,... the state of being 'under the influence' is, apparently, something short of what is meant by 'being drunk', the latter term including the former. However, the tests given by the authorities are conflicting and inconclusive. It is a question of fact, in each case, whether a person is drunk, but it is submitted that a substantial incapacity to appreciate his surroundings and to take such part in the intercourse of daily life, as one would reasonably expect from a sober person, must be proved."
These legislative pronouncements and commentaries clearly cannot be attributed to the mind of the offender, but, considering his attribution to the state of the victim as "drunk", upon his observations, when he chose not to engage in penile vaginal intercourse, the description of her state given by GD, and the evidence of Professor Farrar, both of whom I accept on this point, I find that the victim was substantially intoxicated at the time of cunnilingus and seriously affected by the alcohol she consumed, such that her speech, balance, coordination, and behaviour were noticeably affected, and that, in the circumstances, the offender could not have believed that she could consent to what occurred.
The offender's conduct was for his sexual gratification and without regard for the victim. Upon the representation attributed to him in the report by the psychologist, that he thought this was no more than foreplay, and not intercourse in which he would engage because the victim was drunk, I find that he knew she was in such a state that she could not consent and exploited her to the extent that in his mind was acceptable without facing consequences for his behaviour. He did so notwithstanding that she had fallen beforehand and been injured. He cannot be shown to be responsible for those injuries, though it might be suspected that the marks to her neck were occasioned in the course of his conduct. Nonetheless, I do not overlook that he took his pleasure with her, regardless of what befell her, when, from her appearance in the images in exhibit J, it must have been apparent to him that she had suffered so.
Exhibit J consists of a series of images of the right and left side of the victim's neck, and of her legs, from her feet to just above her knees. The exhibit includes a description of her injuries. They were: "side of face swollen; right cheek swollen. There was a grey bruise on her right cheek made up of three and distinct grey patches of bruising, each approximately 1 centimetre in diameter, with normal skin colour between them. The bruises did not photograph well." They were on the right side of the face. "On the right neck, a purple bruise, 6 centimetres by 4 centimetres in diameter, containing petechiae. Left neck a purple bruise, 3 centimetres by 3 centimetres in diameter, containing petechiae. Left leg red bruising to knee, 4 centimetre linear abrasion on knee. Two grey bruises on the front of her lower leg, over the shin, each approximately 2 centimetres in diameter. Right leg red bruising to knee. 6 centimetre linear abrasion lateral side of right knee. 2 centimetre brown grey bruise above right knee. Recorded in the SAIK diagram but not photographed, the 2 centimetre grey bruise on the front of the shin. On the left arm, a recent patch abrasion of left elbow, 3 centimetres in diameter, surrounded by a more lightly abraded redness area. Right hip grey bruise, 1.5 centimetres in diameter."
To put the matter succinctly, he took advantage of her intoxication.

Victim Impact Statement

There is a victim impact statement, which I received as evidence of the victim's perception of the events as she knows them. This does not alter my assessment of the objective seriousness of the offence, or the offender's moral culpability, and does not aggravate what is otherwise an appropriate sentence upon the synthesis of the material before me, but it has given the victim the opportunity to confront the offender with consequences of his crime and express in her terms, the impact of it upon her.
The statement extends to nine pages. It included her injuries suffered before the sexual assault, which bled when she took a shower the next day, with the help of a younger sister. She has no memory of the sexual assault but has been told of it and fears that a memory might come to her, with consequent anxiety and other distress. She spoke of her state the day following, the injuries, which were a reminder of what she understood befell her, including bruising and swelling to her face. She spoke to comments by others who observed "the love bites" on her neck. As she grew to adulthood she suffered panic attacks and anxiety when in public, and fear of strangers.
She has no memory of the offender's face and knows his name from what lawyers told her. She has suffered nightmares. She has reached the point of understanding that the blame rests with the offender for what she has suffered and appreciates that any guilt is not hers to bear.
There is support for the afflictions the victim described from Monica Kleinman, a consultant psychologist, who offers the opinion that she meets the criteria for a diagnosis of post traumatic stress disorder, attributable, in part, to assault.
The Court is given insight into the magnitude of the impact of the offence upon the victim. I have taken the statement and the opinion into account, I make clear not so as to aggravate the offender's culpability or the sentence to which he is exposed, but, as is appropriate in my view, to mark the impact of this behaviour upon his victim. The material is a compelling reminder of what flows for victims after such degrading misconduct.
I note that the opinion evidence, against which to assess the subjective material, is conclusive and without analysis. The outcome, as described, is as one might expect from such an event and, although clearly significant for the victim, does not upon the material before me permit a finding extended to substantial psychological harm.

The Assessment of the Seriousness of the Offence

In Tepania v The Queen [2018] NSWCCA 247, Johnson J provided guidance upon the assessment of objective gravity and the significance of moral culpability in the process of determining sentences for offences with and without standard non parole periods.
Parliament amended the provisions introducing standard non parole periods in Pt 4, Div. 1A, Crimes (Sentencing Procedure) Act 1999, after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39, adopting the principles enunciated there. These provide that the standard non parole period for an offence is that which is included in the table to the provisions. A standard non parole period represents a non parole period for an offence in the table within the middle of the range of objective seriousness, assessed taking into account only the objective factors affecting the relative seriousness of the offence. A standard non parole period is a matter to be taken into account when determining an appropriate sentence, without limiting the matters that are otherwise required, or permitted to be taken into account, and the Court must record its reasons for setting a non parole period that is longer or shorter, identifying each factor taken into account.
Objective gravity is assessed upon consideration of the objective factors affecting the relative seriousness of the offence, without reference to matters personal to the offender, or class of offenders, but by reference to the nature of the offending, bringing into account relevant factors provided in s 21A of the Act, except those that are essential elements or integral characteristics of the offence.
Fixing the non parole period is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle, or high range of objective seriousness. The Court must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive synthesis, discussed, for example, by McHugh J in Markarian v The Queen [2005] HCA 25.
For offences for which there is a standard non parole period, it and the maximum penalty are legislative guideposts for the sentencing Court, along with other established sentencing practices and by references identified, where relevant, in ss 3A, 21A, 22A and 23 of the Act.
After dealing with these provisions, Johnson J wrote of the importance of a Court sentencing for an offence whether a standard non parole period offence, assessing the objective gravity of the offence, applying general law principles, and considering all factors which bear upon the seriousness of the offence, unless excluded by statute.
His Honour discussed the concept of moral culpability, found in several decisions in the High Court, beginning with Veen v The Queen (No 2) [1988] HCA 14, leading to the observation that an offender's limited moral culpability may mean that retribution and denunciation do not require significant emphasis.
There is no material before me to allow a finding that there was any feature of the offender's circumstances and background that would allow a finding that moral culpability is ameliorated in this case. There is no material before me to support a finding that the offender has suffered disadvantage in his life, such that it left him without adequate emotional resources sufficient for him to guide his behavioural decisions: R v Millwood [2012] NSWCCA 2, per Simpson J, at 69.
The Crown submits that the seriousness in count 2 is below midrange, but not toward the bottom end of the low range. On behalf of the offender, it is suggested that this offence is well below midrange, toward the bottom end of the low range. I accept the submission that the Crown has made in this regard.
It does not follow that the sentence to be imposed will be determined upon a formula whereby a percentage reflecting that assessment is applied to the benchmark set by the maximum term and the standard non parole period. To do so would be error. The sentence selected will be upon the synthesis of the objective seriousness, moral culpability, and the subjective material that is before the Court.

The Offender

The offender was born in 2000 and, this year, turned 23 years of age. The Crown tendered an antecedent record which states he has no prior offence. There is a sentence assessment report. This confirms that he is in a supportive relationship with his partner. His home is with his family, in Queensland. This was not confirmed by the author, but there is nothing to challenge this fact. He is employed in two income earning activities: one as a warehouse operator, and the other as a salesperson in his own enterprise.
His attitude to the offences attracts the need for specific deterrence: "Mr Smee acknowledged his offending behaviour was wrong, and that his behaviours(sic) has caused distressed(sic) towards the victim and their families(sic), during discussions about his offending."
Despite this, Mr Smee minimised his responsibility by indicating the sexual acts were instigated by the victim, and did not acknowledge the child's lack of capacity to provide consent.
Regarding insight, the author wrote: "Mr Smee acknowledge(sic) the negative impact his overall behaviour would have had on the victim and both their families(sic). He stated that he should have been more appropriate in handling the situation, and attributed his actions to impulsive behaviours at the time."
He has a medium risk of reoffending.
In his case, there was a report tendered by psychologist Anita Duffy, written on 20 November 2023.
I pause to interpolate here that I am familiar with the work of Anita Duffy. I find her reports in my experience carefully prepared and well reasoned, and that the attributions she offers, upon which she has reached her opinions, are faithfully recorded.
She interviewed the offender from his home, by way of a Zoom facility, on 9 October 2023. Although this is not optimum for a psychologist to make an assessment such as is offered in this report, having read the document, and understanding the subjective case the offender presents, it does not appear that this has impaired the reliability one can place upon what the psychologist has provided.
As I noted, in the presentation section of the report, at paragraph 1, the psychologist wrote: "He showed some lack of knowledge and experience about sexual matters at the time of the index offences, indicating that he considered oral sex to be 'foreplay', then(sic) rather than intercourse. He has since gained in maturity and greater awareness of sexuality, especially after he has been in a stable relationship."
There is reference to his income earning activity. His background is largely uncontroversial and of limited significance, other than to reveal that he has been fortunate to have a supportive and close family with whom he enjoys a continuing strong relationship. He has had a worthwhile work history and that has culminated, in January of this year, with his own small business that he started on a part time basis.
He once slept well, he said, but, as these proceedings have continued and as the ultimate outcome is approaching, he has difficulty with sleep. Hardly surprising, in the circumstances.
He said he has no real problems with depression or anxiety. He said waiting for the trial and the outcome has been the worst for him, and since earlier this year, he has been worrying excessively, with less appetite, and has lost weight.
There is no history of emotional problems; he has never sought psychological treatment. His use of drugs is limited. He tried cannabis once and has tried no others. Apparently, he vapes, and has done so since he was 18.
His psychosexual history is summarised. His limited sexual experience is described, and his current relationship is discussed.
He confirmed to the psychologist, in paragraph 22, that he refrained from sexual intercourse, in the form of penile vaginal penetration, because the victim was too drunk. At paragraph 23, the distinction he drew between sexual intercourse and foreplay was again noted.
He has suffered stress, unsurprisingly, since he was charged with this offence.
The Millon Clinical Multiaxial Inventory III was completed. There were no significant results across the basic personality scales. His scores upon the more severe personality pathology, indicative of personality disorders, fell within normal limits. The only elevated measure was on the anxiety scale. It is likely that he is suffering from feelings of sadness, guilt, and worthlessness, where, on the depression scale, the score was significant.
He is assessed, on the Static 99R assessment, with average risk. On the STABLE 2007 assessment, there were no dynamic risk factors that would contribute to reoffending.
The conclusions include that he is a person with no significant psychopathologies or deficits in psychological functioning. He shows considerable levels of anxiety as he awaits his sentence, after a protracted period between the date of charges and the outcome of the trial.
He reported being sexually naive, with limited experience and understanding, and the implications for sexual activities in the eyes of the law.
He has a low risk of reoffending, in terms of dynamic factors, supported by his relatively high score on the measure of protective factors, and it is suggested the offence can be attributed to immaturity and poor decision making, supported by his mistaken beliefs about age, and his perception of willingness to participate in sexual behaviour.
That, of course, must be considered as of limited value, in the circumstances of the findings I have made in relation to his conduct.
It is said that a custodial sentence will be onerous for him. I have no doubt accepting that it will be. It will impact, no doubt, upon his opportunity to be with his family, who live in Queensland, his relationship with his partner, and the impact is bound to be profound upon his business and income earning activity. It is suggested that it might be more appropriate if he engaged in counselling sessions in Queensland, on a community based program.
After the proceedings were adjourned, from the hearing date to today for the imposition of sentence, further material was forthcoming on behalf of the offender, consisting of documents speaking to his character and qualities. These were provided by his partner. There is no need for me to announce her name onto the record. There is no controversy that they are in a relationship and it has been ongoing and, by all accounts, is likely to be a permanent relationship. She speaks of him as kind, respectful and patient, with an appropriate understanding and respect for boundaries. She is aware of the charges and has been so since January 2021, and has first hand witnessed according to her writing his emotions and the effect of the mental toll brought by these proceedings and his need to travel to New South Wales for the prosecution of the trial.
Her mother provided a reference for the offender and again speaks of him in the highest terms, as a person of good character. It is obvious that she would welcome him into her family as her daughter's partner. Once again, there is no need for me to include the particulars of that person on the record of this judgment.
The offender's mother has provided a document. She was not present for the trial. I would not take any adverse view of this in the circumstances, bearing in mind that he travelled from Queensland to participate in these proceedings and his family were domiciled in Queensland, but she has gone to the extent of offering explanation for her absence. Her father was in palliative care, he deteriorated rapidly during the year and was lost not too far back. It is apparent that the offender was close to his grandfather.
She describes, in paragraph 4, the reason for their move in 2019. This arose in circumstances where she was fearful for her safety and the safety of her family, arising from the prosecution of two thugs aptly described, in my view, by my use of that term with extensive criminal histories. They robbed one of the offender's brothers. They were convicted of robbery and intimidation. The intimidation included at the time, according to this, death threats in terms that all of the family were in danger, with reference to drive by shootings.
This all occurred some years ago now, the threatening behaviour and the crime from which it emanated. There is nothing before me to indicate that any of those threats were implemented. This said, I do not doubt that the offender's mother was genuinely fearful of these two criminals. When I read the judgments by Sweeney DCJ, in files 2017/00095774 and 2017/00095778, in which the facts and circumstances of that event are described, one can understand why members of the community, who are not normally exposed to the criminality with which these Courts are called upon to deal, might hold fears such as are expressed here.
This has caused fear in the offender's mother about what might befall her son if he is incarcerated. It is said that these men are both facing imprisonment perhaps more accurately, it is feared that her son might suffer from these two men, if they are imprisoned, after having been charged with further offences. I have been provided with a copy of the judgments from Sweeney DCJ in those matters. I have been provided with the facts sheets relevant to further charges that have been preferred against these two men, who are brothers. It is impossible to say whether they will be incarcerated. At least, in respect of one offence, for one of them, the risk is greater. But I accept that the mother holds this fear and, no doubt, the offender, although I have not heard from him, might have comparable anxiety.
That material does not extend to an exceptional circumstance that would require the Court to take other than the course of imposing a custodial sentence in this case. It will be a matter that will require appropriate action by Corrective Services, who will be responsible for his care during the custodial component of the sentence. I will see that information is passed on with his papers to Corrective Services, if that is the wish of those representing him. I will not do so without having submissions on that point, bearing in mind that to excite attention might well achieve the very outcome about which fear is held.
All of that said, I accept that but for this misconduct, the offender is a person of good character, and that the risk of reoffending can be accepted to be demonstrably low. There is a qualification as to whether or not he is appropriately contrite and remorseful. I have read the submissions by the Crown upon this point and I accept the proposition that at least one limb of what is required for the purposes of demonstrating contrition and remorse has limited, if any, evidence, and does not leave me in a position to make a finding that there is appropriate contrition and remorse after trial.
I should add that in addition to the psychological assessment, there has been a mental health plan formulated, and that material was tendered today.
That is material that should accompany the papers with the offender.

Consideration

I have written submissions from the offender's counsel, to which I have not yet referred. They note his age. I do not agree with the proposition that there was no evidence to the requisite standard that the knowledge of lack of consent was not shown to be actual knowledge, bearing in mind the provisions dealing with intoxication and the summary I have provided in respect of that.
I have noted what is said about the precise moment when the offender appreciated lack of capacity, and the period of the offending. I do not agree that the lack of capacity was appreciated at the point nominated on his behalf. I do not agree that the objective seriousness is at the lowest level for this offence.
I have noted the submissions with regard to sexual intercourse admitted by the offender. I have already dealt with the proposition that, upon the evidence, and consistent with the verdicts of the jury, the verdict of not guilty, in count 1 is understandable when it was at least reasonably possible that the accused, upon the evidence and his description of the event, did not know that she was not consenting in respect of count 1.
Subjective matters are summarised in the submissions, which I have noted. There is reference to delay, about which I will say something more in a moment.
Special circumstances, I am satisfied, are clear in the case.
The Crown, in her submissions, correctly notes that it is a rare case in which a custodial sentence does not follow conduct of which the offender has been found guilty.
I have been invited to two authorities, R v Kramer [2023] NSWCCA 152, and Sabapathy v The Queen [2008] NSWCCA 2.
I do not believe, applying those authorities, that this is an unusual or exceptional case in which a sentence other than a custodial sentence is appropriate. I agree with the Crown's submission that the threshold in s 5, Crimes (Sentencing Procedure) Act 1999 has been crossed. I agree with the assessment of objective seriousness and the submission that the offender knew that the complainant did not consent and was not capable of consenting because of the state of intoxication.
His lack of sexual experience is not relevant when assessing the objective seriousness of the conduct, the Crown submits. In the circumstances, I would accept that to be so. As I have found, the conduct of the offender was for his sexual gratification, to fulfil his desires, prioritising them over the obvious difficulties exhibited by the victim.
The duration of the offence, over five minutes, was the subject of commentary by Price J in R v Daley [2010] NSWCCA 223, which is apposite here. At paragraph 48, his Honour wrote: "I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces objective seriousness. No sexual assaults will not be prolonged because the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending, as the suffering and the humiliation of the victim will be increased."
The Crown correctly notes that this was penetrative oral intercourse. I note Kelly v The Queen [2022] NSWCCA, at 24, that the extent of the violation is not proportional to the part of the offender's body which penetrates the victim.
I am reminded of what the victim impact statement has shown; I have already made comment on that.
The Crown concedes the lack of criminal history and his circumstances, and accepts he is unlikely to reoffend, and has good prospects for rehabilitation. As I said with regard to remorse and the meaning attributed to it in s 21A(3)(i) of the Act, he has acknowledged harm and distress caused to the victim, but does not, on the face of what he has said in the documents that have been presented to me, accept that he is responsible for what occurred.
The statement by the psychologist, to which I referred, regarding his perception of her willingness to participate in sexual behaviour, the Crown correctly notes does not acknowledge the observations the offender made of the extent to which the victim was sedated, and that he needed to slap her to bring her to consciousness.
Retribution in this exercise is less significant, because of the age of the offender. It is a relevant consideration. Although it is noted in authorities that the seriousness of a crime by a young offender might transcend the focus upon rehabilitation, I do not see that this has application here.
All of that said, there is a need for specific and general deterrence.
Following his failure to appreciate that he ought to accept responsibility for what befell this young woman, there ought to be some focus upon specific deterrence, but not a great deal.
General deterrence must be given appropriate weight. It is, without question, necessary for the community to understand that a young woman, obviously affected profoundly by the ingestion of alcohol, is not someone from whom a male ought to take sexual pleasure.
There is a need to recognise harm the victim suffered. The conduct must be denounced.
Rehabilitation is a significant consideration, although I note that his prospects for rehabilitation, I would accept, are strong to the point of perhaps being achieved.
The Crown concedes that there are to some degree special circumstances. I am satisfied that the special circumstances in this case require a significant disruption to the ratio that is provided in s 44, Crimes (Sentencing Procedure) Act 1999.
To rehearse these propositions, the offender's counsel submitted that the prescription in s 5 of the Act applies and that a sentence other than imprisonment is appropriate. The Crown, on the other hand, submits and I agree that the offender's conduct requires the imposition of a custodial sentence, and that no other option is appropriate.
Aside from that threshold question, I note that a sentence by way of an intensive corrections order is not available for this offence, the victim, at the time being less than 16 years of age and this, therefore, a prescribed sexual offence.
There is no doubt that the punishment involved in this sentence will be of significant impact upon the offender and his family. Relevant is his youth and immaturity at the time of the offence. Although, at the time of it, he had left childhood, it was less than 12 months before, so I have brought to account considerations that ought not be overlooked when dealing with someone within this period of their life.
At common law, subjective factors to the offender include his age, health, background, and post offence conduct, if there was anything significant in it.
He has demonstrated strong prospects for rehabilitation and these are relevant to the extent of the punishment, personal deterrence, and rehabilitation, and the protection of society.
Subjective factors, such as his age and level of immaturity, are relevant to the assessment of his moral culpability.
I agree with the Crown's submissions, that the offender's attitude, revealed in the interview, and his representations to the psychologist and the author of the sentence assessment report leave some doubt about the extent of his contrition and remorse for the offending, since the nature of the representations from him, on the occasions he made them, suggests that he did not appreciate the extent of the criminality of which he was found guilty, a failure which continued through the contest that was mounted in his trial.
I need not repeat here my findings provided earlier in the judgment, but, upon them and notwithstanding the compelling subjective case presented, the purposes of sentencing articulated in s 3A of the Act are all engaged.
There are special circumstances from the offender's youth, his prospects for rehabilitation and the need for an extended parole period to facilitate his return back to the community and his family's embrace, in Queensland.
I have considered the question of delay, to which there was passing reference. I note the offence occurred on 14 April 2019, the offender was interviewed on 24 May 2020 and he was charged on 26 January 2020, the trial did not commence until mid-2023 and, though reasons for delay are not entirely clear, at least from the time of the interview, the offender has been in some suspense, which I accept.
It is probable that the impact of COVID 19 upon the work of Court, causing delay to trials with juries, has contributed. I have weighed the delay and the anxiety of awaiting for the outcome, as mentioned by the psychologist, in the assessment of the offender's punishment.

The Sentence

I convict the offender. I impose a term of imprisonment of three years, including a non parole period of one year and six months. The sentence will commence on 14 December 2023. He will be eligible for parole on 13 June 2025. The overall sentence of three years will expire on 13 December 2026.
The report provided by Anita Duffy, and the mental health plan, that is in the document that has been provided, should accompany the offender.
I recommend to Corrective Services that the placement of the offender, and his classification, should be determined, bearing in mind his youth.
Consideration should be given to specific anxieties he may have, bearing in mind his youth and immaturity, for his safety whilst in custody.

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: 10 April 2024

Intoxicated Persons Act 1979(NSW)

Intoxicated Persons Act 2000(NSW)

Intoxicated Persons (Sobering Up Centres Trial) Act 2013(NSW)

Police Offences Act 1901(NSW)

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (27)