RB v R

Texts Cited: Nil.

Category: Principal judgment

Parties: RB (Appellant)
Rex (Crown)

Representation: Counsel:
Mr P Godkin (Appellant)
Mr J Anderson (Solicitor-Advocate) (Crown)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/00306016

Publication restriction: Certain names in this judgment have been replaced with initials in recognition of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and section 578A of the Crimes Act 1900 (NSW).

Reasons for judgment

(As revised, after delivery of ex tempore reasons on 7 July 2025.)

1. On 19 June 2024, RB, the ‘appellant’, was found guilty in the Downing Centre Local Court (Herridge LCM) of three offences of carrying out a sexual act with another person without consent (sequences 4, 7 and 9), contrary to s 61KE(a) of the Crimes Act 1900 (NSW) and an offence of stalking or intimidation (sequence 5), contrary to s 13(1) of the *Crimes (*Domestic and Personal Violence) Act 2007 (NSW).

2. The appellant had also pleaded guilty to an offence of behaving in an offensive manner in or near a public place, contrary to s 4(1) of the Summary Offences Act 1988 (NSW) (sequence 2).

3. Other charges brought against the appellant resulted in verdicts of not guilty (sequences 1 and 3) or gave rise to appeals that were withdrawn (sequences 6, 8 and 10).

4. On 26 September 2024, on a date scheduled for submissions on sentencing, Herridge LCM refused the appellant’s application under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Thereafter the learned Magistrate proceeded to sentence the appellant. In relation to sequences 4, 7 and 9, the appellant was sentenced to a community corrections order for 12 months and a fine of $650. For sequence 5, the appellant was sentenced to a community corrections order for 12 months and a fine of $750. For sequence 2, the appellant was fined $250.

5. The appellant brings an all-grounds appeal against his convictions for sequences 4, 5, 7 and 9. He also appeals the severity of the sentence for sequence 2.

The appeals against conviction

The charges

6. The conduct giving rise to the charges occurred on different dates and involved different complainants.

7. In respect to sequence 2, the appellant was at Kings Cross Railway station when he sent two AirDrop notifications that were received by two persons, GH and EM. GH accepted the request and received three images of a penis on her mobile phone. EM declined the request and the appellant attempted to send the images a second time.

8. In respect to sequences 4 and 5, featuring (respectively) one of the three offences of carrying out a non-consensual sexual act with another person and the stalking/intimidation offence, this was alleged to have occurred around 5pm on 7 June 2022, when the appellant was at Town Hall railway station. The appellant allegedly sent 5 or 6 AirDrop notifications to the complainant, IF. Each notification received represented an attempt to send three images of a penis. On all occasions, that complainant declined the request and thereafter did not receive any further communications from him.

9. In respect to sequence 7, another offence of carrying out a non-consensual sexual act with another person alleged that at 8:30am on 10 June 2022, when at Town Hall Railway station, the appellant sent 2 or 3 AirDrop notifications to the complainant, EO. This complainant initially declined them but accidentally accepted one, resulting in her receiving three images of a penis.

10. In respect to sequence 9, being the last of the offences of carrying out a non-consensual sexual act with another person, it was alleged that around 8am on 9 September 2022, after having boarded a train at North Sydney railway station, the appellant sent 2 or 3 AirDrop notifications to an unknown female passenger. That passenger initially declined the notifications, but thereafter accepted one and received an image of a penis on her mobile phone.

Elements of the charges

The non-consensual sexual acts offence

11. For the offence giving rise to sequences 4, 7 and 9, the elements of the offence are as follows:

12. the accused intentionally carried out an act with, or towards, the complainant;

13. the act was ‘sexual’;

14. the complainant did not consent to the sexual act;

15. the accused knew the complainant did not consent.

16. As to the first essential element, the Criminal Trial Bench Book contains the following template directions of what it means for an act to be ‘towards’ a complainant. Regard must be had to the act and all of its surrounding circumstances, including: the nature of the act; the proximity between the accused and the complainant when the act was carried out (the complainant does not have to be in the immediate physical presence of the accused); the visibility of the act and whether the accused wanted their actions to be seen or was deliberately hiding them; what interaction, if any, occurred between the complainant and the accused at the time the act was being carried out, including inviting or encouraging the complainant to watch or participate.

17. Further, it is suggested that there must be some intentional engagement with the complainant, from which it can be inferred the act is directed at the complainant (DPP (NSW) v Presnell [2022] NSWCCA 146 (“Presnell”) at [29], [91]–[92]). It is not enough if the complainant was simply present (physically or electronically), but nothing more, when the act was carried out.

18. The interpretation of some of these elements is affected by certain statutory provisions. In view of the way that the appellant has conducted this appeal, it is sufficient that only a few of them are explained.

19. In relation to the second essential element, that of a ‘sexual act’ (s 61HC(1)), this means an act (other than touching another person) carried out in circumstances ‘where a reasonable person would consider the act to be sexual’.

20. Section 61HC(2) provides further that:

“The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include –

(a) whether the area of the body involved in the act is a person’s genital area, anal area or breasts –

(i) whether or not the breasts are sexually developed, and

(ii) regardless of the person’s gender or sex, or

(b) whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.”

The intimidation offence

17. For the intimidation offence, the elements of this offence are:

18. the person ‘intimidates’ the complainant;

19. the person has the intention of causing the complainant to fear physical or mental harm.

20. A person ‘intimidates’ another if (among other ways), he engages in conduct amounting to harassment or makes an approach by any means (including relevantly technology assisted means) that causes the other person to fear for their safety.

21. Read in isolation, s 13(1) indicates that the offence is one of ‘specific intent’. As to the requirement of intent generally, often the element of intention is proven inferentially. [1] The content and nature of the conduct may itself bespeak the intention of the person who engages in it. However, the mental element for the offence of intimidation in s 13(1) is to be read in the light of s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides that a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. In McIlwraith v R [2017] NSWCCA 13 this mental element was construed so that although the offence in s 13(1) is one of specific intent, it can be proven either by (a) an intent to cause a person to fear physical or mental harm; or (b) knowledge that the conduct would likely cause fear in the other person.

22. By s 13(4), the prosecution is not required to prove that the person alleged to have been intimidated actually feared physical or mental harm. By s 13(5), a person who attempts to commit the offence of intimidation is taken to have committed that offence.

Approach to conviction appeals

21. I have summarised the principles relating to hearings of appeals against convictions many times, most recently in Byers v R [2025] NSWDC 119 at [4] and I apply them here.

The issues

22. In the Local Court hearing, a statement of agreed facts was relied upon.

23. In essence, what might be called the physical elements of the offences of non-consensual sexual acts, or in the case of sequence 4, attempted (for the purposes of s 344A of the Crimes Act) were not in issue. Images of a penis were sent via AirDrop from the appellant’s Apple iPod. AirDrop is a function of Apple products enabling transfer of information, including photos, to other Apple products. Further, the learned Magistrate found that on the basis of the statutory definition of the concept and the agreed facts, the recipients of the images did not consent. There is no challenge to those findings. The appellant concedes that the images which were air-dropped contained a picture of the end of a penis. That is, they amount to what is colloquially known as ‘dick pics’.

24. An important material agreed fact is that by the use of AirDrop, images of photos may be sent to persons on the sender’s device who are not on the sender’s contact list. If the receiver has their AirDrop function enabled and is within a certain range, the receiver may receive an alert that the sender would like to share with them and will have the option of accepting or declining the request. Mr Crown explained in the hearing that the recipient does not need to be on the sender’s contact list, but the sender will have visibility of the description of the recipient’s device. That can include part of a person’s name. In this way, the receivers may be strangers to the sender and in most, if not all occurrences, that would occur (unless, say, the whole of a recipient’s name is used to identify the owner of the device).

25. The Magistrate gave himself a good character direction for the accused.

The appellant’s grounds of appeal

The non-consensual sexual act charges

26. As to the second element of the non-consensual sexual acts offences, the appellant raises a point of construction regarding the meaning of ‘sexual act’ and the statutory definition in s 61HC(2). He argues that the trier of fact must consider all of the matters in s 61HC(2)(a), (b), and (c). He contends that in treating these matters as presenting alternatives, the Magistrate erred.

27. The appellant further contends that had the Magistrate considered all of the matters in s 61HC(2)(a)–(c), inclusive, there would have been reasonable doubt as to whether or not the act could be characterised as being ‘sexual’ in nature. The Magistrate should have accepted his evidence at the hearing that he did not intend to commit an act that was sexual in nature, but was rather to engage in a funny prank. In this respect, the appellant argued that there are commonplace or ordinary experiences of actual contact as between two persons involving the genital area or exposure of persons to genital or breast area, as being situations where the motivations of persons are important contextual considerations. There was no ‘eye to eye’ contact here and it should have been accepted that he had sent the images widely or indiscriminately, in the sense that he did not know who the recipient would be. He also argued that his evidence that he did not receive sexual gratification should have been accepted. Citing a passage from the judgment of Basten AJA in the decision of Pressnell (at [17]) the accused person’s state of mind is important in considering whether an act is ‘sexual’ because one of the relevant factors for the trier of fact is whether the accused’s purpose in committing the act is to obtain sexual gratification. He says that he did not intend to carry out a sexual act.

28. The Crown accepts that the accused carried out his acts in secret, that he did not know the complainants and that the complainants did not know him, nor the fact that it was the accused who sent them the communications. That he did so in a way that was concealed or not transparent, the Crown contended, worked against the accused. Further, the Crown acknowledged that there was evidence that he was something of a prankster, but such evidence as there was of those pranks was avowedly not sexual in nature.

29. Finally, in relation to the first of the essential elements, the accused does not suggest that his conduct in ‘airdropping’ the images of a penis was unintentional. His argument was that that the Crown also needed to prove that the accused intended to commit sexual acts ‘towards’ the complainants. Part of that, the appellant argued, necessitated proof that the accused intended the persons to whom his conduct was directed to would act upon it, such as an incitement to participate in a sexual activity. This was distinct from an ironic suggestion or vulgar abuse: citing R v Chonka [2000] NSWCCA 466 at [50]. In this case, his argument ran, the appellant’s conduct was not intended to be acted upon by the complainants and therefore, the Crown could not establish that his conduct was ‘towards’ them.

30. Further, it also appeared from what was submitted at the hearing that the accused puts in issue the fourth essential element of knowledge on the basis that, under s 61HK(3), on the balance of probabilities (s 61HK(4)), he suffered from a cognitive or mental health impairment at the time of the sexual act and that impairment was a substantial cause of him not saying or doing anything to ascertain whether the complainant consented to the sexual act.

The intimidation offence

31. The appellant argued that this is an offence of ‘specific intent’.

32. The appellant cited parts of his evidence, including when he was under cross-examination, which, he contended, indicated doubt as to whether he intended to cause fear. To the contrary, his intention was to act humorously.

33. On this point about the appellant’s state of mind, the Crown submitted that his repeated sending of AirDrop notifications to the same person was an attempt by the appellant to cause (mental) fear, knowing that the person would feel the way that the complainant expressed how she felt, that is, ‘gross’ and ‘uneasy’, crept out ‘harassed’.

Consideration

The non-consensual sexual act charges

34. As to the appellant’s first point, s 61HC(2) directs the trier of fact to several mandatory, but non-exhaustive, considerations in 2(a) and (b), followed by a catch-all consideration in (c) to form an objective view of whether an act is sexual. There is no hierarchy among those considerations. It is open to the trier of fact to ascribe greater weight to one or another. It is also open to the trier of fact to consider anything else which it regards as relevant to the question whether a reasonable person would regard the act as sexual.

35. In that regard, the Magistrate appeared to ascribe primary weight to the matter in s 61HC(2)(a).

36. The matter in s 61HC(2)(b) is important and curious. It is curious because although the test in s 61HC(2) is ultimately objective, under s 61HC(2)(b), the trier of fact is required to consider the subjective purpose of the person who commits the act that is allegedly sexual. The Magistrate said in his reasons that there was insufficient evidence from the accused’s police interview or oral evidence to infer that he derived sexual gratification, certainly to the high standard of proof required, although in this regard, what needed to be determined was whether the essential element was proven beyond reasonable doubt; not one of a range of indicia. At any rate, for this particular consideration, the accused’s good character had a role to play.

37. Another matter (which might fall under s 61H(2)(c)), which appears not to have been expressly adverted to by the Magistrate, was the impersonal means of communication and indiscriminate distribution to senders. The Crown did not dispute the randomness of the recipients of the notifications: there was no evidence that the complainants in the respective charges were on the appellant’s contact list on his iPhone. Just because the medium for the communication may be electronic on a phone, does not disqualify the act from the characterisation of being sexual. But where it is being sent to persons who are random, and hence it cannot be said to have been disseminated to persons in respect to whom the accused actually had any sexual attraction and who received the notifications by happenstance, including that at the time of the notification(s) was or were sent (a) the AirDrop function on their iPhones was enabled at the time and (b) the recipient was within a certain geographic proximity to the appellant, these are circumstances which in my view militate against a finding that the act of the AirDrop per se was sexual. Those circumstances identify the difficulty for the prosecution in establishing that the appellant derived any self-gratification from the act and was indifferent to whether his act may incite or encourage sexual arousal to the person who happens to receive the notification.

38. I do not find persuasive the Crown’s submission that the absence of transparency counts against the accused. Nor do I find that the Crown’s allusion in its written submissions to avowedly non-sexual pranks rendered it more likely that the AirDrops were sexual. In my view, the position is to the contrary.

39. In circumstances where the learned Magistrate did not appear to consider or at least apply s 61HC(2)(c), in my view, there was a failure to consider a mandatory relevant consideration. This was a material omission in circumstances where the factors in (a) and (b) pointed in different directions. This is not to say that a conclusion about s 61HC(2)(c) must necessarily tip the scales or even that the matter in s 61HC(2)(a) cannot, in some circumstances, be determinative. I recognise further that the Magistrate had the advantage of hearing and seeing all the evidence. Nevertheless, that advantage is not particularly significant in a case like this where, within a relatively narrow factual compass, the trier of fact is effectively exercising an evaluative judgment.

40. In all the circumstances I am not persuaded beyond reasonable doubt that the acts were sexual.

41. Sequences 4, 7 and 9 fail for that reason alone.

The intimidation offences

42. I now turn to the sequence 5 offence.

43. I reiterate the agreed facts that around 5pm on 7 June 2022, when the appellant was at Town Hall railway station, he sent 5 or 6 AirDrop notifications to the complainant, IF. Each notification received represented an attempt to send three images of a penis. On all occasions, that complainant declined the request and thereafter did not receive any further communications from him.

44. The Magistrate alluded to the complainant’s police statement where she outlined her reaction to receiving the 5 or 6 AirDrop notifications whilst she was sitting on the railway platform. Over a period of about 5 minutes, she had declined the notifications. She apprehended, however, that the sender was going to be sending a random picture.

45. The complainant then indicated that on a separate occasion later in the week, she learnt from a flatmate on Snapchat that the flatmate had received a ‘dick pic’. It was that revelation which generated the feelings that I have referred to when addressing one of the Crown’s submissions in relation to the charge.

46. By his submissions in this appeal, the appellant’s only challenge was to the mental element for the offence.

47. Contrary to the appellant’s submission, it is unnecessary for the prosecution to prove that he intended that his conduct would cause fear in the complainant for her physical or mental harm. It is sufficient for the prosecution to prove that he knew that his conduct would likely have that effect. It is also unnecessary for the prosecution to prove that the complainant did actually fear for her mental or physical harm.

48. In this case, there was conduct by an intermediary which was interposed between the appellant’s conduct and the complainant’s articulation of her feelings. It was the flatmate’s revelation which contributed to the complainant’s state of mind. I do not regard this as amounting to a supervening event and in any case, as I have noted, it is unnecessary for the prosecution to prove that fear of physical or mental harm was actually caused by the intimidating conduct. Still less is it necessary for the prosecution to prove that the appellant’s conduct was the only reason why the complainant was likely to fear physical or mental harm.

49. The Magistrate referred to the appellant’s evidence in relation to the complainant, IF, interpreting his position that after five or six rejected attempts to send the notification, it may have dawned on him that she would not have wanted to receive the images, but he denied believing at the time that it would have been intimidating and he only realised that after his arrest.

50. At T 16.42 of the reasons on 19 June 2024, the Magistrate explained his finding as to the appellant’s mental state as follows:

“The prosecution’s submission that [the complainant’s name] would have known that the offender had to be nearby for the message to reach her is not without merit because it would certainly explain her assertion that she felt weird. Crucially however, the defendant would have known this also and the Court rejects his assertion that this is only something which dawned on him on reflection.

Even if his case was taken at its highest and he did not, in his mind, intend to cause harm, he is someone holding down a job which would require his cognitive functioning to be within a normal range, and there is no evidence before the Court of any cognitive or other impairment. In other words, there is no evidence therefore to contradict or cast down (sic) upon the reasonable inference that as subs (3) puts it, he knows that the conduct is likely to cause fear in the other person. The court finds that his conduct falls within s 13(3) and sequence 5 is therefore proved.”

51. It is, with respect, unclear what it is said that the appellant knew in this passage of the reasons. I had noted earlier the Magistrate’s reference to the appellant’s awareness of the circumstance of his notifications being earlier rejected. His honour appeared to use this to establish proof that the appellant’s conduct was intimidating, in the sense of constituting harassment.

52. But the offence requires more. It identifies a person’s knowledge of a likely particular result of the conduct: knowledge that the complainant was likely to be fearful of physical or mental harm. The bare circumstance of rejection, even multiple rejection, by a recipient of these messages, without more, does not to my mind represent a flag to someone that the reason for rejection of the notifications was a fear of what might be revealed. An equally competing inference is that the person simply does not want to learn of the content of the notification sent from someone who, to all intents and purposes, might be a stranger. There was nothing to indicate to the appellant anything personal about the complainant, IF, other than the description that “[First name]’s phone” was one of the phones to which the notification was sent.

53. In all, there is an insufficiency of evidence which has been identified to support this reasoning.

54. The threshold for proof of knowledge of a likelihood of fear, in the complainant, of physical or mental harm may be relatively low, I think this is a borderline case. I am not satisfied that the Crown has proven that the accused knew that his conduct was likely to cause physical or mental harm in a person even to one to whom he had repeatedly sent the notification. Even with s 13(3), the test remains subjective: whether the prosecution could prove that this particular accused would think it likely that the complainant would fear for her physical or mental harm. In this regard, he knew he was sending multiple messages annexing a dick pic. But there was no accompanying message seeking, or suggestive of engagement with this particular complainant. The prosecution did not assert any form of communication between this complainant and the appellant signifying the effect, or likely effect, of his conduct upon her, beyond the fact that she had rejected earlier notifications. He knew nothing of the complainant’s personality, or temperament (including sensitivity) or even the nature of her sense of humour. Arguably, his mental state was one or recklessness as to the possibility that a recipient might be fearful, but for the purposes of the offence, that mental state is insufficient to make out the offence.

55. This particular accused’s rather warped sense of humour needed to be taken into account, along with the evidence of good character about his statement of intention which needed to be factored in when considering his evidence of his intention or mental state generally.

56. In so concluding, I think there is every reason to accept that the complainant felt harassed. The appellant’s evidence that, as someone holding down an important job, he never considered that sending dick pics indiscriminately might make someone else uncomfortable and was just humorous may well by the mark of someone who is immature, boorish and even, as his counsel submitted, vulgar. That he repeatedly sent it marked also as something of a nuisance as well. In reaching these conclusions, it is unnecessary to consider whether the accused had a cognitive or mental health impairment, or what effect such impairment had upon his conduct.

57. I am not satisfied that even with the lower threshold of proof of the mental state (under s 13(3)), being one of knowledge of a likely result, that this essential element has been proven beyond reasonable doubt.

58. Accordingly, this offence also fails.

59. It follows that all the sentences for the convictions that have now been overturned must be set aside.

Orders

60. The Court’s orders are as follows:

61. The appeals against convictions for sequences 4, 5, 7 and 9 are upheld and each of those convictions are set aside.

62. The sentences of 26 September 2024 for sequences 4, 5, 7 and 9 are set aside.

Postscript

Following the appeals against convictions, the Court dealt with a severity appeal in connection with sequence 2, the reasons for which and the orders that were made do not warrant publication.

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Endnote

The Queen v Baden-Clay (2016) 258 CLR 308 at [46]–[47].

Amendments

17 November 2025

The appellant’s name was anonymised after the hearing following an uncontested application that his name be substituted by a pseudonym, on the basis that exceptional circumstances were established which obviated the necessity for disclosure of the appellant’s name in the interests of justice.