Saffin v R

Court of Criminal Appeal (NSW)|2020-08-17|Before: Basten JA, Rothman J, Price J

Solicitors: Randall Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/196095 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 05 May 2017 Before: Whitford SC DCJ File Number(s): 2015/196095

Judgment

BASTEN JA: On the night of 4 July 2015 the offender, Edward John Saffin, engaged, over three or four hours, in multiple sexual assaults on a young 19 year old Aboriginal man. He pleaded not guilty to all 14 counts on an indictment and was found guilty on 13 counts by a jury, after a trial lasting nine days. He was acquitted on one count of aggravated sexual assault, but convicted of six such offences. He was also convicted of five offences of indecent assault and two involving acts of indecency.
The defence, rejected by the jury, was that the acts were consensual. In the absence of consent, the persistent attacks involving oral and anal intercourse, taken as a course of conduct, involved a high level of depravity. Each of the offences of aggravated sexual assault carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. In accordance with the requirement that a judge imposing an aggregate sentence is required to indicate the individual sentences which would otherwise have been imposed for each offence, what was deemed to be the most serious of the offences of penile anal intercourse was said to warrant a sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months, being a non-parole period a mere 53% of the standard non-parole period. The other individual sentences did not exceed 6 years, with proportionate non-parole periods. The element of aggravation involved in each of these offences was the deprivation of liberty. That involved both physical restraint in some instances and implicit threats prior to commencing the conduct, including the offender showing the victim that he was carrying a knife and claiming to have a gun in the car. The aggregate sentence for the 13 offences (with no discount for an early guilty plea, the matter having gone to trial) involved a non-parole period of less than 10 years, namely 9 years 4 months. The overall sentence period was 14 years imprisonment.

Circumstances of offending

The judge commenced by noting that the offender was 31 years old at the time of the offences and the victim 19 years. The victim had met the offender on the afternoon of Friday 3 July 2015, being introduced by his uncle who was a friend or acquaintance of the offender. The judge's account then continued with the events on the Friday evening, leading up to the assaults in the early hours of Saturday morning, which took place in the country-side near Lismore.
The victim was drinking alcohol during the afternoon and early evening at the house of B, but was not drunk. Later that evening the victim and others visited an acquaintance, W, who lived in the countryside. The applicant, accompanied by his wife and their baby, also came to W's house. At W's house the victim and the applicant both smoked ice. The applicant left and the victim and his companions returned to B's house where they continued drinking and smoking cannabis.
Later in the evening the applicant visited B's house and also smoked cannabis. During the course of the evening the applicant produced some ice which he smoked with the victim and other people present. While the applicant was talking to the victim he said that he was carrying a knife and that he always carried one. He lifted up his shirt and the victim saw what he thought was a steak knife tucked into the waist of the applicant's pants. B and the others decided to drive into Lismore. The victim was invited to join them but declined. The applicant invited the victim to his home at Richmond Hill, a rural area outside Lismore where he lived with his wife and young baby. The victim accepted the invitation and he got into the front passenger seat of the applicant's car.
After driving a short time the applicant told the victim that he "always carries a piece on him". The victim asked, "So, you've got a gun in the car?" The applicant replied, "Yeah, bro, always". The applicant also said that he was not using his silver jeep because it was too red hot and said he was going to pick up more "gear, ice" from bikies, and mentioned the Mongols. The applicant asked the victim his age and the victim replied 19. The offender asked him the same question several times. Instead of driving to his home the applicant drove the victim further into an isolated part of the countryside. The sexual assaults occurred over a period of three or four hours whilst the offender was driving to the isolated place, whilst parked there, and whilst driving back to Lismore.
The sexual acts started when the applicant pulled the car over and brushed the victim's crotch (count 1). He said, "You should let me touch your dick". The victim refused, saying, "No, no". He saw that the applicant had pulled down his pants exposing his erect penis (count 2). The victim tried to open the car door and found it was locked. The applicant was masturbating himself and saying the victim should touch his penis. The victim said: "Fucking no". The applicant then started driving again, with one hand on his penis and one hand on the steering-wheel. The applicant demanded, "Touch my dick", a number of times and said, "You'll make me mad" (count 3). The victim said, "I'm only using my fucking hand". He said he felt frozen at that point. He put his hand on the applicant's penis. The applicant grabbed the victim's hand and started using it to masturbate his own penis (count 4).
Before the applicant again stopped the car he told the victim to suck his penis. The victim said: "No, man, I'm not going to suck your fucking cock". The area where the applicant stopped the car was dark with a short patch of mowed grass and a lot of vegetation. There were no houses or buildings visible. While in the car and seated in the driver's seat the applicant tried to grab the victim's head; the victim pulled away. The applicant pulled the victim's head a second time and this time pulled the victim's head onto his penis. The victim started to suck the applicant's penis and said he was thinking about what the applicant had said. That is that, "I always carry a piece". The applicant was gripping the back of the victim's head and thrusting his penis up and down into the victim's mouth causing him to gag. The applicant said, "You're not going to throw up, are you, bitch? Don't be a little bitch about it".
The victim was crying and kept gagging until the applicant ejaculated into his mouth. The victim thought the applicant's penis was in his mouth for about 20 minutes (count 5). The applicant unlocked the car doors and got out of the car on the driver's side and ran around the front of the car to the passenger side. He grabbed the victim's shirt and pulled him out of the car. He told the victim to take his clothes off. The judge was not satisfied beyond reasonable doubt that the applicant did remove the victim's clothes, nor that he physically maintained a hold of him throughout the subsequent sexual act.
However it occurred, the victim's pants were removed and the applicant turned the victim around and bent him over; he was behind the victim. The applicant inserted his penis into the victim's anus and started thrusting. The applicant called the victim his little whore. The victim was crying but being quiet and was trying to hold any outburst from coming out. He was scared. After some time, no more than half an hour, the applicant ejaculated (count 7). The applicant then turned the victim around so the victim was facing the offender and put the victim on his knees. He then put his penis into the victim's mouth and made the victim suck it. The offender was still holding the victim. The victim could taste the applicant's semen and wanted to vomit. The applicant had his penis in the victim's mouth for about 10 minutes (count 8).
The applicant then put the victim back in the front passenger seat and locked the door. The front passenger seat was reclined. The applicant went back around to the driver's side and got back in the vehicle. He hopped over in front of the victim and said, "Do it to me". The victim told him he was not going to do it. The applicant said, "You're not fucking leaving this fucking car till you come". The applicant started sucking the victim's penis. He was holding the victim's arms on the head rest. The applicant was getting angry because the victim was not getting an erection and the applicant told the victim that he was not a man (count 9). The applicant then used one of the victim's hands to masturbate the victim's penis (count 10). The applicant then started sucking the victim's penis again (count 11).
The applicant kept the victim's left hand on the head rest and took hold of the victim's right hand and again used it to masturbate the victim's penis. The victim eventually ejaculated (count 12). The offender had the victim ejaculate on his own hand and then put it into his own mouth and spat on the victim (count 13). The victim started to put his seatbelt on and the applicant said something to the effect: "Do you think you're finished?" or "Do you think you're done?" The applicant pulled the back of the victim's head across onto the applicant's penis and was thrusting his penis up and down in the victim's mouth. The victim was gagging and the applicant told him not to throw up. The applicant then told the victim to open up his mouth. He ejaculated into the victim's mouth. He then told the victim to swallow "every fucking drop" (count 14).
The victim was upset and wanted to vomit and vomited slightly in his mouth. As the applicant drove back into Lismore he pulled up on the side of the road near a house, saying he had to get back to his wife and told the victim to write down his email address and phone number. The applicant returned the victim to B's house where the victim got out of the car and walked to the gate. Once at the gate, he ran to the back door, banged and kicked the back door and window so loudly that B and another occupant thought the house was being raided by police.
The victim immediately told B and the other person that he had been raped by the applicant. Once inside the house the victim ran to the sink and vomited a number of times. B called the police, who arranged for the victim to be taken to hospital. He was variously described by the people who saw him that morning as crying, distressed, hysterical, aggressive, and having difficulty talking and breathing at times. He threatened to kill the applicant. The victim stated that he and the applicant had left B's house after 1 am and that it was just becoming light when the applicant dropped him back at the house.
The victim was seen by a doctor at about 9.30am on 4 July. His evidence revealed injuries consistent with the account given by the victim.
In describing the nature and circumstances of the offending, the judge found: [1] "The offences were violent and, for the most part, apparently reasonably sustained. The detaining involved the offender locking the car and the parking in a dark uninhabited area of bushland in circumstances where the offender had earlier told the victim he always carried a piece, which he confirmed was a reference to a gun. The offender had also shown the victim a knife on his person earlier in the evening. The references to these weapons were taken as implicit threats by the victim and made him fearful of trying to escape. In relation to count 9 the offender told the victim, 'You're not fucking leaving this fucking car till you come'. Some of the more serious offending conduct was also accompanied by repeated instances of humiliation. As I have outlined, the offender called the victim his little whore and little bitch. The offender was angry at the victim's inability to get an erection and ejaculate and told him that he was not a man. Counts 13 and 14 in particular involved acts which are degrading. Throughout the course of conduct the offender appeared to exercise domination and power over the victim."

The psychological evidence

The issue to which the psychological evidence related was the extent to which the applicant's state of mind at the time of the offending constituted "knowledge about consent" for the purposes of s 61J of the Crimes Act 1900 (NSW), that is in relation to each of the five offences of aggravated sexual assault of which he was convicted. Section 61J(1) provided as follows: (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
Consent and knowledge about consent are concepts dealt with in s 61HA: 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person.
The primary importance of this provision is that it identifies three different bases upon which the applicant might be convicted, but in reducing degrees of moral culpability. The manner in which the sentencing judge addressed this assessment, finding that the applicant was "reckless" within the terms of subs (3)(b), was the subject of ground 1. However, the factual basis for the conclusion that the applicant lacked actual awareness and, in the applicant's submissions, recklessness, was to be found in the psychological evidence that he suffered from autism spectrum disorder. Further, and in relation to the inferences drawn from that diagnosis, it was necessary to remove from the assessment the consequences of self-induced intoxication. This was of some significance in circumstances where the applicant had consumed alcohol and "ice" prior to the offending. This required a careful assessment of the report of the two psychologists, of whom Dr Clifford was the leading author and gave oral evidence on the sentencing hearing.
Dr Clifford was cross-examined at some length by the prosecutor who challenged two aspects of her report, namely (i) the basis of her diagnosis of autism spectrum disorder and (ii) the basis of her opinions as to the actual effect of the disorder on the applicant's state of mind on the night of the offending.
The first challenge (to the diagnosis) turned on two broad propositions, namely that (i) the applicant had been treated by and examined prior to the interview with the psychologists on 27 January 2017, by two psychiatrists neither of whom had diagnosed autism spectrum disorder; and (ii) the psychiatrists had at earlier points in times diagnosed the applicant as suffering from schizophrenia and from a personality disorder.
Possible psychoses were not addressed by the psychologists, either by way of confirmation or disagreement. That was deliberate. Dr Clifford was cross-examined about a reference to the applicant's father having reported "some delusional behaviour". It was put to her that there was no reference to that information or the issue of delusions in her report, to which she responded: [2] "No there's no reference to delusions, there is a reference to that content of paranoia, there's a short reference in my report to that, I did write that in because we hadn't connected, I mean we're not obviously experts at diagnosing schizophrenia or psychosis we had popped that in but our thinking was that it may have been - so that is referred to in line 601, so I wanted to report that that was reported." Dr Clifford returned to the issue shortly thereafter in answer to a question relating to the diagnoses of Dr Nielssen and Dr Pearson, the psychiatrists who failed to diagnose "autistic spectrum disorder", stating: [3] "So I think as I was saying autism is a condition that because it's developmental it changes over the life span it waxes and wanes and when he's got if he had psychosis, drug induced psychosis possibly that is going to overshadow the autism because it's much more destructive so my fearing [feeling?] is that it probably wasn't picked up because it wasn't at the forefront, it wasn't the primary concern, …."
The trial judge accepted the diagnosis of autism spectrum disorder. That finding is not challenged, nor is there any reason to doubt the correctness of the diagnosis. The judge stated: [4] "I am satisfied to the requisite standard that at the time of the offending the offender was suffering from co-morbid conditions - namely autism spectrum disorder and an attention deficit hyperactivity disorder - together with potential personality and anxiety disorders. That complex mix was overlaid with a long history of abuse of both illicit substances and prescription drugs used contrary to indication. It is also clear that on the relevant night the offender was acutely intoxicated through his consumption of alcohol, cannabis, and ice."
The applicant's mental condition was also relevant to ground 2 in the notice of appeal, which alleged that the judge erred in permitting only a "limited diminution" of the applicant's culpability and "slightly diminished significance for general deterrence". In short it was said that the judge gave less weight than the applicant's case demanded to the evidence of autism spectrum disorder. However, the justification for giving limited effect to the evidence of autism spectrum disorder is to be found in the second area of challenge to Dr Clifford's evidence, namely the expression of opinion as to the effect of his condition on his awareness that the victim was saying "no" in emphatic terms.
In the written report, the psychologists commenced with an important qualification, explained in the following terms: [5] "It is impossible to say definitively that Edward's ASD [6] would have impacted 'causatively' on his offending behaviour. No assessments to our knowledge are able to offer this information. Multiple factors were at play during the time of the offending, including Edward's drug and alcohol use, making it difficult to understand what part the ASD alone played in the offending behaviour. Furthermore, given the presence of multiple comorbidities, it is difficult to ascertain the part that these may have played in Edward's behaviour. However, in [an] attempt to isolate the behaviour that might have been impacted by the ASD primarily, we turn to the characteristics of ASD that appeared to be factors in explaining some of the behaviour."
The psychologists related the possible impact of the applicant's lack of insight: [7] "Specifically, Edward's lack of insight into the needs, desires and beliefs of others ('theory of mind') may have impacted on his ability to understand if the victim was uncomfortable and had withdrawn consent. Edward stated to the assessors that he believes that the victim consented to the sexual intercourse and that he 'would not have done it if he had not'. Edward claims he thought that they had both had a good time and exchanged numbers at the end of the evening, with Edward dropping him back to the house where the gathering was held. He reported that he felt that the two would meet up again for similar encounters, seemingly not understanding the effects that this encounter had on his victim. To this end, Edward did not appear to foresee or appreciate the negative consequences of his behaviour nor did he respond to any contextual cues (e.g. social cues reported by the victim) indicating a change in behaviour was requested."
Finally, the psychologists opined: [8] "Edward's ability to detect and understand non-verbal and verbal (including tone of voice) behaviour is variable. As outlined above (ASD criterion A2), he was able to detect simple emotional expression when presented with verbal and non-verbal information in a testing environment, and also when required to integrate with more complex cues that required him to understand intention of communications, Edward struggled. It is therefore possible that he was less able to perceive and integrate the non-verbal (facial expressions, body posture) and verbal (tone of voice) reported signals that the victim was not consenting, limiting the knowledge typically required to modify one's behaviour."
The basis of each of these opinions was challenged in cross-examination.
With respect to personality disorder, the psychologists stated: [9] "Edward also shows traits of an antisocial personality, which is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. When considering the diagnostic criteria for antisocial personality disorder (American Psychiatric Association, 2013, p. 659), it is clear that Edward meets criteria A in that he fails to conform to the social notes [norms?] with respect to lawful behaviour (criterion A1), is impulsive (criterion A3), displays irritability and aggressiveness as indicated by physical fights (criterion A4), is consistently irresponsible by, for example failing to sustain work (criterion A6) and shows a lack of remorse (criterion A7) (this could be affected by his theory of mind deficits). Despite meeting criterion [sic] A and B (the individual is at least age 18 years), Edward does not clearly meet criterion C, which requires historical evidence of a conduct disorder prior to 15 years of age. Furthermore, deceit and manipulation are often central to this personality, and Edward does not appear to exhibit these traits."
Dr Clifford was cross-examined in relation to her dismissal of criterion C. Referring to that passage, the cross-examiner noted Dr Pearson's report that the applicant became "somewhat rebellious and anti-authoritarian on entering secondary school", that he was asked to leave Woodlawn at the age of 13 or 14 for selling drugs, that he was suspended from Balmain High for smoking cannabis, and received a caution for an offence of stalk and intimidation at the age of 15. [10] Dr Clifford was then asked: "Q. Do you agree that there appears to be historical evidence of a conduct disorder prior to 15 years? A. Look that was raised with his parents so most of our emphasis was put on the assessment that we did rather than our own assessment rather than the historical accounts of other people doing assessments. So because that stuff wasn't raised with us in the context of our ASD assessment we hadn't gathered enough evidence for that."
With respect to the last sentence of the passage dealing with an anti-social personality, the cross-examiner put to Dr Clifford a number of incidents involving what might have been considered deceitful and manipulative conduct. Although agreeing that one could indeed infer intention from conduct, [11] she declined to accept the examples given to her as involving deceit or manipulation because she did not know what his motive or intention was at the relevant time. (The examples included secreting drugs in his anus to smuggle them into prison.)
It is not reasonably possible to read the transcript of Dr Clifford's evidence without concluding, contrary to her report, that the applicant suffered from a form of personality disorder. That is not to say that her diagnosis of autism spectrum disorder was flawed, but that there was a further condition involved which she may have failed to take into account in expressing opinions about his conduct on the night of the offending.
Critical to the opinions as to the applicant's ability to understand that the victim was not consenting was a passage of cross-examination interspersed with aggressive interjections from the applicant. Ignoring the interjections, the passage in the cross-examination read as follows: [12] "Q. Just going back to the behaviour of the offender on the night in question on 4 July, you understand from reading the transcript that at the first instance of sexual behaviour in the car the victim told the offender no a number of times. Do you accept that, that's the evidence that's being accepted by the jury - … Q. Do you agree that no is a short concrete statement? A. Yes. Q. That it's not complex? … Q. And it's also the case that at the beginning of that offending behaviour once the complainant was forced to perform sexual acts on the offender he started to cry? A. Yes I've read that yes. Q. And you would accept that crying is a clear sign of distress? A. I also read that - … Q. That was later, so I'm asking you about at a point in time where the complainant's evidence, the victim's evidence is clear that he was crying and at that point there's no suggestion he's making any attempt to mask or suppress his crying. You would agree that that's a clear sign of distress? A. It seems so. Q. And there's also evidence from the victim that he was physically gagging during some of the acts. You would also accept that that's a clear physical sign of distress would you agree with that? A. I'm not too sure about that one, I mean it seems it may not be distress but I don't have the knowledge to know whether - Q. Well would you agree that it appears inconsistent with consent for someone to be gagging? A. I don't have the knowledge to make a statement on that. … Q. In the testing that you did with the offender you stated that he did well with simple verbal statements so he would do well with no wouldn't he? A. He would typically be able to understand no. Q. And he would do well with 'fucking no', excuse the language, but he would do well with that? A. Yes he would typically be able to do well with that unless something transpired afterwards which suggests that there was consent. Q. But you understand that this behaviour commenced at a time when the complainant his starting point was 'no'? A. I think from interviewing Mr Saffin and reading the transcript it appeared that his understanding was that the starting point was 'yes'. Q. The offender didn't give evidence at the trial and the victim didn't accept the propositions put to him on behalf of the offender that he was in any way consenting or engaging in that behaviour, so the evidence in which he is going to be sentenced on in which you have to express your opinion is that when the first sexual contact started he said no a number of times very clearly and you agree that that is a clear indication that could be understood by Mr Saffin? A. Yes I mean 'no' is clear, that would have been understood yes."
Following a short adjournment, the cross-examination continued as follows: [13] "Q. Now, Dr Clifford, having regard to the complainant's use of the word 'no' and the phrase 'fucking no' the crying and also the gagging in light of those statements and signs why do you conclude it's possible the offender was less able to perceive and integrate the non-verbal and verbal reported signals? A. So, I mean, the statement that I read obviously doesn't include all of the information that would be pertinent to make that assessment in terms of tone of voice et cetera, gestures, facial expression. So my understanding is that it's possible that it wasn't perceived. If there was a clear no how you stated it before, yes, but if there were other factors involved, tone of voice, gesture, expression, it may have confused the situation. That's my only thinking in terms of how he may not have perceived these signals. Q. All right, if I could take you then to the last paragraph of your report on page 18? A. Yes. Q. In the third line you refer to the victim withdrawing consent? A. Yes. Q. So that was an integral part of your expressing that specific opinion, there that you've related to in that paragraph, is that correct? A. So I was under the understanding that it appeared that he was consenting at the start based on an interview that we conducted with Mr Saffin. Mr Saffin's belief was that he was so - Q. Well, it's the case that the evidence that's to be relied upon for the Court is that - and to be fair to you I'll put it to you in sequence - the offender touched the complainant's crutch and said, 'You should let me touch your dick'. The complainant said, 'No, no.' The offender then pulled down his pants exposing his penis. The offender was masturbating himself and telling the complainant he should touch his penis. The complainant was saying, 'Fucking no.' A. Mm-hmm. Q. And this was while they were in the car. The offender then commenced driving again and had one hand on his penis, one hand on the wheel. He demanded the complainant, 'Touch my dick' a number of times and said, 'You'll make me mad'? A. Mm-hmm. Q. Do you agree the response, 'You'll make me mad' seems to convey some understanding that the complainant wasn't cooperating or consenting to the behaviour? A. I think the statement, 'You make me mad' may relate to his inability to cope with things not unfolding the way he had planned. I'm not sure if he had the insight into the other person's needs and desires and requests. Q. But you've accepted before that he would understand the word, 'No'? A. I've accepted that he'd understand 'No' if it was said in the way that you've said it but I'm not sure how exactly it was said and so I can see a situation where perhaps there was confusion between the content of the word, the way the word was said and all the information that was presented prior to that specific context. Q. Going to that, that prior information it's the case and for the purposes of expressing your opinion, the evidence is that the offender had invited the complainant out to his home and instead of taking him there he drove him further into the country side where it was dark and where there were no dwellings around. Do you agree that by taking the complainant to somewhere different to what he had told the complainant that shows foresight as to what he intended to do? A. I mean, that is probably beyond my area of expertise but I would suggest on one theory is that there wasn't anything in the transcript that I'm aware of that where the victim had said, 'Hey where are you taking me.' I didn't read that, so suggested that he was potentially okay with going. I wasn't aware of - I mean the one thing that stood out to me was that Mr Saffin was checking his age which to me didn't seem like he was intending to commit any sort of crime, he was almost checking that he was of age. I'm not sure that he was aware at that point and intending to do wrong. Q. After you have the conduct that I've just taken you through after the offender saying, 'You'll make me mad,' you then have the complainant saying, 'I'm only using my fucking hand.' Again, I suggest to you that's very straightforward language, would you agree with that? A. It's straightforward language but it doesn't - I don't have information on the other contextual cues that are important in making a decision as to whether Mr Saffin would have understood all of the messages that were given to him and made an assessment. Q. It's the case isn't it, Dr Clifford, that without that contextual information your opinion is quite limited, would you agree with that as to be able to meaningfully interpret what occurred in the car? A. It is limited in the sense that the transcript but I also have obviously interviewed Edward about his understanding which is - Q. But that information is not before the Court? A. Yes. Q. So that's not going to be a basis on which the matter is determined so I'm asking you to confine yourself to the evidence of the victim in the transcript? A. Okay, so what was your question, sorry? Q. Just one moment. Without a full understanding of the context in which and you say the expressions and the tone of voice, you're limited then in what you 50 can actually meaningful say, aren't you? A. Yes, yes, without that information it's hard to know. Q. You'd agree that the offender's motivation may have been sexual gratification? A. It appears so. I don't have insight into his motivation. Q. Following on from the complainant saying, 'I'm only using my fucking hand' and the offender grabbing the complainant's hand and using it to masturbate his own penis, the offender told the complainant to suck his penis and at that point the complainant said, 'No man I'm not going to suck your fucking cock.' Do you agree that that appears to be fairly clear direct language? A. I think it's direct language. Q. Would you agree that the use of force such as grabbing the complainant's head or grabbing him by the shirt in the context of the complainant having said 'No' a number of times is consistent with the offender simply desiring to do what he wanted regardless of what the complainant said? A. I don't know if I can answer that question, sorry."
In short, the situation in which the applicant found himself was one where (i) lack of consent was being indicated in clear unequivocal language; (ii) there was no complex social interaction involving third persons; (iii) there was no initial consent which was withdrawn; and (iv) the situation was not confusing in so far as the applicant was in control of it. It was apparent from Dr Clifford's answers that she had, in part, relied upon information supplied by the applicant to her, which was not in evidence and, further, had made assumptions about how particular statements were conveyed, again without any basis in the evidence.
The findings of the trial judge, as to which no challenge is raised, that the offences were "violent", "reasonably sustained", involved showing the victim a knife, making implicit threats to weapons and the use of aggressive, humiliating and angry language, found no ready explanation in any part of Dr Clifford's evidence. She expressly eschewed any attempt to explain the applicant's conduct by reference to elements of psychosis, personality disorder, or drug induced intoxication (required by s 61HA(3)(e) to be disregarded). The evidence from the applicant's mother that his wild and possibly aggressive behaviour commenced with early drug use was not taken into account.

Ground 1 - error in concluding the applicant was reckless as to absence of consent

The jury did not hear Dr Clifford's evidence: without that evidence it is tolerably clear that the convictions may well have been based upon the most culpable of the relevant states of knowledge, namely awareness that the victim was not consenting. However, this Court does not have available to it either the directions given to the jury in the summing up with respect to the applicant's state of knowledge, or the evidence at trial (other than the evidence of the victim). The sentencing was run on the basis that the verdicts were supportable on any of the three states of mind identified in s 61HA; it was a matter for the trial judge to determine on which basis the applicant should be sentenced. [14] At a level of generality, that approach should be accepted; it is not, however, necessarily correct to assume that any inferences drawn by the trial judge depended entirely on the evidence called on sentence, rather than upon his knowledge of the whole case as presented at trial.
There was a further complication in the way that the appeal was run. The evidence of Dr Clifford, which formed the factual material underpinning the appeal, was itself based in part upon evidence not called at trial and apparently inconsistent with the evidence which gave rise to the verdicts. So much is apparent from the cross-examination of Dr Clifford. However, the extent to which there was inconsistency cannot be determined by this Court with any precision.
These considerations do not affect the assessment of ground 1. That is because the submissions in support of ground 1 turned upon a supposed inconsistency in the reasoning of the trial judge. The submission was that the sentencing judge, "accepted the possibility but not the probability that the applicant honestly but unreasonably believed there was consent. Conversely and inconsistently, Judge Whitford accepted beyond reasonable doubt that the applicant was reckless, in that he at least appreciated the real possibility of lack of consent and persisted anyway. These two conclusions cannot sit together. The possibility of an unreasonable belief in consent ruled out a conclusion beyond a reasonable doubt that the applicant had actually turned his mind to the possibility of lack of consent and persisted in the offending conduct." [15]
The relevant reasoning of the trial judge commenced by accepting the proposition that he could not be satisfied beyond reasonable doubt that the applicant actually knew the victim was not consenting. The passage in the reasons read as follows: [16] "Having regard to the diagnosis of autism spectrum disorder and the evidence concerning its potential consequences for the offender's capacity for social awareness, and to appreciate the nature and significance of the verbal and non-verbal signals of others I am not satisfied that it is possible to conclude without doubt that the offender actually knew the victim was not consenting. There are two aspects of the facts that appear to at least support the possibility that the offender honestly believed the victim was consenting and which also certain undermine a conclusive finding of actual knowledge of lack of consent, in my view. The first is the repeated questioning of the victim about his age. The second, and perhaps more significant, is the behaviour of the offender when the pair returned to Lismore. That behaviour, which can only sensibly be described as bizarre in the light of preceding events, at least points to the possibility that the offender believed the victim had been consenting."
The applicant's submissions relied upon the finding that there was a "possibility that the offender believed the victim had been consenting." That finding, the applicant submitted, was only consistent with satisfaction beyond reasonable doubt as to an honest belief that the victim was consenting, and was not consistent with a finding that the applicant was reckless. Accordingly, the next sentence in the judgment, which read as follows, revealed error: "Notwithstanding those two matters, consideration of the whole of the evidence and circumstances leads me to conclude beyond reasonable doubt that the offender at least appreciated that there was a real possibility the victim was not consenting but persisted in the offending conduct anyway."
The judge then proceeded to explain why he reached that conclusion despite the diagnosis of Dr Clifford: [17] "Dr Clifford was more than frank in her acceptance of the limits on her capacity to opine definitively on the causative impact of autism spectrum disorder on the offender's behaviour on the night. She also conceded that the words 'No no', and the words 'Fucking no', were sufficiently plain to have been capable of appreciation even by someone with the compromises she otherwise detected in the offender's social functioning. Those matters, together with the combination of things said by the offender to the victim during the offending conduct, and the threats implicit in the reference to the presence of a firearm compel me to conclude beyond reasonable doubt that even notwithstanding his autism spectrum disorder and the incapacities that attend it, the offender was at least alive to the possibility that the victim was not consenting to any of the acts of sexual intercourse."
The second aspect of the applicant's challenge turned on the passage in the reasons which followed immediately on from that set out above: [18] "Even notwithstanding the victim's attempts to disguise his disgust and distress, I do not consider that the words and conduct of the offender throughout the episode are reasonably consistent with the existence of a genuine, albeit unreasonably founded belief, that the victim was consenting. I am reasonably confident the bizarre behaviour of the offender after he and the victim returned to Lismore has its genesis in some aspect of the offender's highly complex psychological and personality profile, but when viewed in light of the whole of the evidence I am not satisfied that it is more likely than not that that behaviour is reflective of an honest belief that the encounter was consensual."
The applicant's complaint was that the last paragraph misapplied the burden of proof. The applicant's submitted that state of knowledge was an element of the offence to be established beyond reasonable doubt by the prosecutor, but the judge treated the least culpable of the three possibilities as a matter in mitigation to be established on the balance of probabilities by the offender. Having accepted that there was a real possibility that the applicant did hold an honest belief that the victim was not consenting, thereby correctly rejecting awareness, the judge should not have treated the offender as bearing the onus of establishing that the less serious of the two remaining alternatives should be accepted.
This reasoning should not be accepted. First, as explained by the High Court in Filippou v The Queen, [19] referring to an earlier decision in Cheung v The Queen, [20] the fact that, as between two possible explanations, the judge is not satisfied beyond reasonable doubt of the explanation proffered by the prosecutor, it does not follow that the judge must sentence on the basis of the alternative explanation. As further explained in Filippou: "[70] Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard."
In any event, in the present case, the judge was satisfied that the applicant was reckless as to whether or not the victim was consenting, that satisfaction being established to the criminal standard, beyond reasonable doubt.
Secondly, there was no inconsistency between this conclusion as to recklessness and the finding that there was a reasonable possibility that the applicant believed the offender to be consenting (albeit unreasonably). Acceptance of a reasonable possibility is, necessarily not a finding that the belief existed at any relevant level of satisfaction. It is not inconsistent with a finding as to recklessness. Further, the separate states of mind identified in s 61HA(2) do not create discrete and independent categories. The idea that a person "knows" that the other is not consenting itself involves the formation of a belief at a certain level of conviction. Depending on the circumstances, it may be negated by a hope or expectation that the other is consenting, or even by a disregard of indications to the contrary. A disregard of the circumstances, so as not to form an opinion, will readily lead to a finding that the person was reckless as to consent. There is no clear dividing line between pars (a) and (b). The third category (par (c)) does not in terms refer to an actual belief in consent, but only to the lack of reasonable grounds for such a belief. A finding as to lack of reasonable grounds may well be consistent with, and indeed evidence of, the person being reckless. It is only if that finding is accompanied by a finding as to an actual belief in consent that par (c) is distinguishable in terms of culpability from pars (a) and (b).
There was no inconsistency in the findings made by the trial judge, nor did he apply an inappropriate burden of proof. Ground 1 must be rejected.

Ground 2 - significance of mental condition

Ground 2 took issue with the following finding by the sentencing judge: [21] "Just as there is some limited diminution in the moral culpability of the offender having regard to the conclusions I have reached, there might reasonably be some amelioration of the extent of the work to be done in this exercise by considerations of general deterrence. This is not a situation where that object should be taken entirely out of account but, rather, its impact on penalty is slightly diminished."
The primary factual submission with respect to this ground was in the following terms: [22] "The causative link between the applicant's cognitive deficits, his behaviour during the events that gave rise to the offences and his lack of actual awareness of the absence of consent, together with Dr Clifford's evidence associating drug abuse with undiagnosed ASD and ADHA, meant the only conclusion open on the evidence was that the applicant's moral culpability for his offending conduct was substantially reduced. His Honour erred when he found that these considerations only amounted to a slight diminution of his moral culpability."
This ground is untenable as a matter of principle and as a matter of fact. As a matter of principle, one starts with the proposition that the weight to be accorded to a factor such as mental health is essentially a matter for the sentencing judge. As explained in Regina v Baker, [23] the circumstances in which this Court will intervene on the basis that the judge has wrongly assessed the weight to be given to a relevant factor are "narrowly confined." [24] What is required is that the applicant identify "error" in the exercise of the sentencing discretion. Baker was an appeal by the Director against the inadequacy of a sentence in circumstances where no specific error was identified, except as an explanation for the manifest inadequacy. Nevertheless, the principle stated depends on the application of the passage in House v The King identifying the kind of error which will justify appellate intervention. [25]
That is not to say that questions of weight may not provide a ground of appeal; in House the joint reasons referred with apparent approval to the observation of Lord Alverstone LCJ in R v Sidlow [26] that "it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts". [27] It is not necessary to determine whether a question as to the weight accorded to a relevant factor "does not amount to an error in the exercise of the sentencing discretion unless the decision is manifestly unreasonable", [28] or whether some lesser standard of scrutiny is available. The point is rather that the weight to be given to a particular factor does not involve a binary choice, but the determination of where along a spectrum a particular matter should be placed, a consideration which involves an inherently evaluative judgment about which reasonable minds may differ.
As a matter of fact, the judge provided clear reasons for the approach he adopted. Those reasons turned on the assessment of the applicant's condition provided by Dr Clifford and her co-author. Questions of both moral culpability and the materiality of principles regarding general deterrence turned upon the extent to which the diagnosis of autism spectrum disorder had a causal link with the offending. That in turn depended upon the extent to which the applicant was conscious that the victim was not consenting. The judge's findings, and the evidence on which they were based, have been recorded above and need not be repeated. The inferences to be drawn from Dr Clifford's evidence may be summarised as follows.
First, one feature of people on the spectrum is that they have difficulty in intuiting likely responses of others and in "reading" non-verbal signs. Such difficulties may be compounded in groups, or in other circumstances where communication is confusing.
Secondly, difficulties in "reading" the meaning of ambiguous or ambivalent communications carries with it another feature, namely that people on the spectrum may tend to understand verbal communications literally, where others might see ambivalence.
Thirdly, being on the spectrum is well-described by the label applied; there are a range of features associated with the spectrum, some of which will apply to a particular individual, but others will not; some will operate for an individual in particular circumstances, but not in other circumstances; and a particular feature may be present, but in varying degrees of seriousness. In short, levels of functioning are disparate and diverse. It follows that the judge was entirely correct in determining how the particular diagnosis operated with respect to the applicant based on the evidence of the circumstances and the events of the night in question.
The factual circumstances included the following matters. First, the evening had been spent by the applicant and the victim in a group involving other parties: there was no suggestion that the applicant was avoiding social contact. In particular, the applicant initiated the further contact with the victim. All of the offending took place in circumstances where the victim was the only other person present, and where each aspect of the conduct was initiated by the applicant.
Secondly, Dr Clifford accepted that the words, "no, no", and the words "fucking no", would have been understood by the applicant. Curiously, in parts of her evidence she was hesitant to accept that the applicant would have understood particular statements because she thought tone of voice and surrounding conduct would have been important. Yet, as she identified in her report, those were precisely the matters which a person with a serious disability on the spectrum would not have been able to follow.
Amongst the circumstances which the judge was entitled to take into account, but which obtained little recognition in Dr Clifford's evidence, were the facts that the applicant engaged in conduct which commenced with threats, involved physical sexual activity initiated by him, and was accompanied by apparently deliberate efforts to dominate the victim. There was no evidence that any such conduct was the result of autism spectrum disorder; similarly, there was no basis for thinking that the disorder affected the applicant's understanding of the victim's articulated statements of objection to his advances. In short, there was very little evidence of "the compromises [Dr Clifford] otherwise detected in the offender's social functioning", [29] in the events of the evening in question.
The judge made findings favourable to the applicant which appear, quite properly, to have ultimately carried little weight in his reasoning as to moral culpability. In identifying a possibility that the offender believed the victim was consenting he took into account two considerations. The first was that, prior to the first sexual advances, the applicant had questioned the victim about his age. Why that suggested that he was later to believe that the victim was consenting is obscure. The second matter concerned an incident which occurred when the victim was being driven back to Lismore by the applicant. In recounting the facts (only partly summarised at [16] above), the sentencing judge stated: [30] "As the offender drove back into Lismore he pulled up on the side of the road near a house. The offender said he had to get back to his wife and told the victim to write down his - that is the victim's - email address and phone number. The offender wanted them to meet up that afternoon and was acting for all intents and purposes as though he were the victim's mate. The offender told the victim not to give his number to anyone and to ring him from a pay phone."
This account may have been mistaken; the last sentence does not appear to be consistent with the victim providing the offender with his contact details. The victim's evidence was to the reverse effect, which made sense of the last sentence in the judge's statement. His evidence in chief was as follows: [31] "Q. Then did he give you anything or make you do anything? A. He made me write down his email and his phone number. Q. Did you do that? A. Yeah. I wrote it down on a bit of paper from the glovebox. Q. Did he say something else to you at that point after he made you write down his phone number and his email? A. He wanted to meet up that afternoon, so he was giving me his phone number. Q. How was he acting at that point? A. Like me best mate. … Q. What did he say? A. He wanted to meet me that afternoon and the next time we - he said, 'Don't give my number to anyone' …. He wanted me to ring him with a pay phone." The cross-examination of the victim did not challenge this aspect of the evidence. [32]
Precisely why this incident indicated, after three or four hours of sexual activity had been completed, that the applicant believed at the time it had all been consensual is unclear. A more plausible explanation of the incident, which the trial judge described as "bizarre", [33] was that it reflected a belief (or hope) that through threats and intimidation the victim was now a submissive catamite to be further exploited for sexual purposes.
The high point of the judge's reasoning, relevant to the question of moral culpability, was the failure to accept beyond reasonable doubt that the applicant was aware that the victim was not consenting. However, the judge assessed the relationship between the non-drug induced mental condition (namely autism spectrum disorder) and the offending as tenuous. That finding was based on the evidence and was, in my view, unassailable. Accordingly, the judge's conclusion that moral culpability was subject to "some limited diminution" as a result of any "cognitive compromises" and that there might be "some amelioration" of the extent to which general deterrence should be considered, was well within the range of evaluative judgments available on the evidence. Accordingly, ground 2 must be rejected.

Ground 3 - manifest excess

There was a strong suggestion in the applicant's submissions that a finding of manifest excess required at least a degree of success with respect to the other specific grounds. That has not been established. The written submissions identified 23 factors which the judge had correctly taken into account in addressing the question of sentence. It was further submitted that "the applicant's cognitive deficits and psychiatric conditions were causatively linked to his offending conduct and reduced his moral culpability." [34] That submission has been rejected.
The submissions also referred, rather loosely, to the applicant's "autism", language which tended to obscure the need to identify with care the particular features of the autism spectrum which had been observed in the individual and were relevant to the case. It was suggested, somewhat tentatively, that manifest excess was demonstrated by the judge's approach to accumulation, had individual sentences been imposed. The judge dealt with that issue in the following passage: [35] "The Crown submitted, and I accept, that the offending conduct here requires a degree of accumulation to adequately reflect the objective gravity of the individual offences. The offences in the present case were committed in the course of what was essentially a single episode. However, the authorities dictate recognition that each offence contributed to the total criminality involved and care must be taken to ensure that the overall effective sentence is appropriate, having regard to the particular individual offences committed in the course of that episode. The Crown conceded, in my view, fairly and correctly that counts 1, 2, and 3 are preparatory to count 4 and could appropriately be dealt with concurrently. That is how I intend to deal with those four offences. The circumstances, as revealed from the facts I have outlined, seem to me to also justify a reasonably high degree of concurrence among counts 9 to 13. As was submitted on behalf of the offender, those counts apparently occurred in quick succession as part of a continuous episode within short compass. However, it is necessary that there be a degree of implicit accumulation between the remaining counts in recognition that they involve distinct criminal conduct, the criminality of which could not be encompassed by the other offences. I say implicit accumulation because I intend to impose an aggregate sentence and the degree of accumulation between particular offences will not be as explicit as it might otherwise have been."
No error was revealed there. The submissions concluded: "170. In this case it is notable that whilst all thirteen offences were committed during the one course of conduct, the longest discrete indicative sentence was imprisonment for eight years, whereas the aggregate sentence totalled 14 years. Similarly, the longest single indicative non-parole period is five years four months, yet the aggregate non-parole period is nine years four months."
However, it is also true that each of the full-term sentences with respect to offences of aggravated sexual assault was less than the standard non-parole period for that offence; but nevertheless they totalled 34 years. There was, therefore, a considerable level of implicit concurrency as well as an element of accumulation. Further, the aggregate non-parole period for the 13 offences was less than the 10 year standard non-parole period prescribed for each of the six offences of aggravated sexual assault. Given the level of violence and the period of time over which the offending took place, no basis for a complaint of manifest excess is established.

Conclusions

Although the sentencing judgment was clear, well structured, detailed and free of error, this is an appropriate case for a grant of leave to appeal against sentence.
The application for leave to appeal was filed some 2 years and 10 months after the sentence was imposed and some 18 months after the last extension of time expired. The solicitor's affidavit filed in support of a further extension of time provided a detailed account of steps taken, but little by way of justification for the delay. The Director opposed a further extension, but only on the basis of lack of merit in the proposed appeal. Because the case is one which would otherwise warrant a grant of leave it is also appropriate to grant an extension of time until 28 February 2020 within which to file the application for leave to appeal. Nevertheless, the appeal should be dismissed.
The Court should make the following orders: 1. Grant the applicant an extension of time until 28 February 2020 within which to file the application for leave to appeal. 2. Grant the applicant leave to appeal against the aggregate sentence imposed on him by the District Court on 5 May 2017. 3. Dismiss the appeal.
ROTHMAN J: I agree with Basten JA.
PRICE J: I agree with Basten JA.

Endnotes

Sentencing judgment, p 8.
Tcpt, 31/03/17, p 34(50).
Tcpt, p 35(42).
Sentencing judgment, p 11.
Report, p 18 (lines 664-671).
The applicant was referred to by his first name throughout the report; ASD was an abbreviation for autism spectrum disorder.
Report, pp 18, 19 (lines 681-690).
Report, p 19 (lines 691-698)
Report, p 17 (lines 626-637).
Tcpt, p 42(20)-(41).
Tcpt, p 44(44)-(50).
Tcpt, pp 36(43)-38(30).
Tcpt, p 40(7)-42(18).
The judgment reflected the parties' submissions; tcpt 18/04/17, p 12, p 25(30)-26(13).
Written submissions, pars 144-146.
Sentencing judgment, pp 12-13.
Sentencing judgment, p 13.
Sentencing judgment, pp 13-14.
(2015) 256 CLR 47; [2015] HCA 29 at [65] (French CJ, Bell, Keane and Nettle JJ).
(2001) 209 CLR 1; [2001] HCA 67 (Gleeson CJ, Gummow and Hayne JJ).
Sentencing judgment, p 15.
Applicant's written submissions, par 155.
[2000] NSWCCA 85 (Spigelman CJ; Grove J and Hidden J agreeing).
Baker at [11].
(1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
(1908) 1 Cr App R 28 at 29.
House at 505.
Kennedy v R [2020] NSWCCA 49 at [33] (Adamson J; R A Hulme and Ierace JJ agreeing).
Sentencing judgment, p 13.
Sentencing judgment, p 6.
Tcpt, 14/09/16, p 99(25).
Tcpt, 14/09/16, pp 146(35)-147(35).
Sentencing judgment, p 13.
Applicant's written submissions par 164.
Sentencing judgment, p 18. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2020

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