SG v Tasmania [2017] TASCCA 12

Criminal Law - Sentence - Relevant factors - Nature and circumstances of offence - Relevance of non-exculpatory mistake as to consent.

Judgment Number: [2017] TASCCA 12

1. This is a sentencing appeal. The appellant pleaded guilty to one count of aggravated sexual assault. He was sentenced by Brett J to imprisonment for 18 months from 3 April 2017. His Honour ordered that the appellant not be eligible for parole until having served half of the sentence. There are two grounds of appeal. One ground contends that the sentence is manifestly excessive. The other ground contends that the sentencing judge erred by giving insufficient weight to the appellant's plea of guilty.

1. The crime was committed on 26 October 2014 against the appellant's wife. At that time the appellant was aged 54 and the complainant was aged 50. They met in another State before travelling to Tasmania in 2009 to operate a business they purchased together. They married in 2012 but soon experienced marital problems and separated in early 2014. In September the same year the complainant returned, intending to try to salvage the marriage. However, she quickly decided it would not succeed and planned to leave Tasmania on 6 November 2014. She suggested to the appellant that, before she left, they visit Cradle Mountain because they had not been there before. She made clear to the appellant that she still intended to leave the marriage.
2. The complainant and the appellant arrived at Cradle Mountain during the afternoon of 26 October 2014. They spent the rest of the day together. After walking, they consumed alcohol in the room they were sharing. More alcohol was consumed at dinner. By 10pm both were considerably affected. The complainant decided to use the spa in their suite but, after entering it, she realised that she was too drunk. The appellant helped her out and she lay on the bed, naked, either asleep or semi-conscious. The appellant decided to initiate sexual activity. He took a Viagra tablet. He unsuccessfully tried to arouse his wife. As she lay unresponsive on the bed, he touched her vagina and tried to stimulate her clitoris. He inserted his fingers into her vagina. After 5 to 10 minutes of this conduct he started using a sexual aid. He inserted it into her anus mistakenly believing he had inserted it into her vagina. The complainant woke and, realising what had happened, immediately protested in forceful terms. She left the bed, put on a bathrobe, went to a small balcony and started to cry. The appellant unsuccessfully tried to console her. She sent him away and he slept in the car. She phoned a family member in a distressed state. The following morning the complainant contacted a member of the hotel staff and the police were notified.
3. Before the learned sentencing judge the duration of the penetration of the anus was not established with certainty. Before this Court counsel for the respondent accepted that the penetration was likely to be "momentary". However the duration of the anal penetration is characterised, the application of force was sufficient to produce the physical effects described by the complainant to the police and revealed by examination. She told the police that she woke because of pain, "like a knife going into my bottom". A proctoscopy revealed the posterior anal canal to be tender with red blue bruising, and the rest of the anal canal as red and inflamed. The complainant was in discomfort for at least a number of days. In her victim impact statement she described a longer period.

The appellant's state of mind - consent and mistake

1. It was submitted at the sentencing hearing that the appellant's intention was to initiate consensual sex and that he "had a genuine belief as to the existence of consent". Moreover, he believed that he penetrated the complainant's vagina with the sexual aid, and had no intention to penetrate her anus. Submissions were made to the learned sentencing judge about the relevance of those factors to the exercise of his sentencing discretion. They are relevant also to this Court's consideration of whether his Honour's discretion miscarried.
2. It is first necessary to state what flows from the appellant's plea of guilty. A person is guilty of aggravated sexual assault if the person unlawfully and indecently assaults another person by the penetration to the least degree of the vagina, genitalia or anus of that other person by any part of the human body other than the penis or by an inanimate object. The appellant's plea of guilty to the crime, as it was particularised in the indictment, carries the admission that he penetrated the complainant's anus with an inanimate object, a vibrator or similar object, and that he did so indecently and unlawfully. The appellant's acts were unlawful because they were without the complainant's consent. Consent is defined in the Criminal Code, s 2A(1). It means free agreement.
3. Despite the absence of free agreement, it may have been a ground of exculpation if the appellant acted under an honest and reasonable, but mistaken, belief that the complainant consented to the penetration: the Code, s 14; Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; CTM v The Queen [2008] HCA 25, 236 CLR 440. However, the Code, s 14A(1), provides that for certain specified sexual offences, including aggravated sexual assault, a mistaken belief as to the existence of consent is not honest or reasonable if the accused:

"(a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or

(b) was reckless as to whether or not the complainant consented; or

(c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."

1. Thus, the appellant's plea also carried the admission that any mistaken belief he held as to the existence of consent was neither honest nor reasonable. No reliance was placed on s 14A(1)(a). Before the sentencing judge, counsel for the appellant accepted that both s 14A(1)(b) and (c) applied. As to par (b), recklessness, in the relevant sense, means that the appellant foresaw that the complainant may not consent and acted regardless of the risk that she did not. Paragraph (c) operates to mean that the appellant admits that he did not take reasonable steps, in the circumstances known to him at the time of the act of penetration, to ascertain that the complainant was consenting to that act.
2. The appellant submitted that his state of mind about consent at the time of the criminal conduct arose from a combination of circumstances. The first was that he had been invited to accompany the complainant to Cradle Mountain at all. Despite the problems and the impending separation, he thought it may be a final opportunity to retrieve their relationship. They were staying alone in the same room with one queen bed. It was a romantic setting. They had shared an enjoyable day, consumed alcohol and a meal together. He knew that his wife had packed sex toys which, in the course of their relationship, they had used together. Back in the hotel room more alcohol was consumed. In his eyes the combination of events seemed to be leading to consensual sexual activity. The complainant entered the spa naked and then was naked on the bed.
3. The State did not dispute the appellant's contention that his intention was to penetrate the complainant's vagina and not her anus. He knew that anal sex penetration in any form was not part of their sexual history and he did not deliberately depart from that history.
4. There are a number of things which may be said about the matters to which I have referred. Whatever the appellant's state of mind, there was a patent failure to ascertain whether the complainant consented to his acts. He knew that her level of intoxication was such that she required assistance to remove herself from the spa. The appellant's acts, preliminary to the acts of penetration, continued for five to ten minutes without her saying or doing anything to indicate consent. She lay on the bed and did not respond to his attempts at stimulation. It was submitted to the sentencing judge on his behalf that, in the course of his acts before the act of penetration, the complainant moved in a way which the appellant interpreted as a positive reaction. However, his admission that the complainant did not consent indicates acceptance that his stated interpretation was wrong. The Crown asserted that the complainant protested as soon as she became aware of what was happening. To proceed to the charged act of penetration in those circumstances manifested a disregard of his obligation to ascertain her agreement. I think that the mistaken penetration of the complainant's anus cannot be disassociated from the more general issue of consent. Had the complainant been freely agreeing to the sexual conduct then the mistake would immediately have become apparent, perhaps even before penetration took place. The appellant's state of mind was focussed on his own wishes and not on the agreement of the complainant.
5. There are some things which may be said in the appellant's favour arising from his state of mind. His mistaken belief that he penetrated the complainant's vagina and not her anus indicates the absence of an aggravating factor. Although falling short of a defence to the charge, the matters of belief and intention have some mitigatory effect. The State did not dispute that his intention was to cause pleasure and not pain and humiliation. His state of mind serves to distinguish his conduct from conduct perpetrated by an offender knowingly without consent, or where consent is obtained by resort to force or threat, or where a victim is overborne. The case is also to be distinguished from those involving victims who are particularly young or vulnerable, and where the criminal conduct is repeated or prolonged.

1. The appellant had no prior convictions. He is a person of otherwise good character. He immediately desisted from his conduct when confronted by the complainant. He tried to console her although she was not receptive to the approach. He made admissions to the police when spoken to on 27 October 2014, the day after the offence. He was contrite during his interview although he denied penetration of the complainant's anus. When re-interviewed on 9 March 2015 he maintained his denial of anal penetration despite being shown forensic evidence to the contrary. As a result of the crime he suffered considerable public opprobrium in the area in which he lived and conducted business. His small business suffered badly and has since failed.
2. One issue in this appeal is the mitigatory force of the appellant's plea of guilty. It is the particular subject of one ground of appeal. He was charged on 3 July 2015. He pleaded not guilty and was committed to the Supreme Court for trial, appearing for the first time on 12 October 2015. The trial was due to commence on 3 April 2017. The complainant prepared for the trial and travelled from interstate in anticipation of giving evidence. A change of plea was notified to the State during the late afternoon of the day before trial and, on the morning of the trial the appellant entered a plea of guilty to the indictment. A plea of guilty is ordinarily a factor pointing to a reduction in sentence, particularly for sexual crimes. Some mitigation arises from the appellant's plea of guilty. It spared the complainant the embarrassment and humiliation of having to give a public account of events and subject herself to cross-examination. Counsel for the appellant submitted that the lateness of the plea ought not to have been attributed to the appellant. The sentencing judge was informed that the change of plea followed a change of legal advice relevant to the appellant's criminal responsibility. To that extent, the late plea does not preclude the existence of remorse. However, whatever the reason for the late change, the extent to which the guilty plea facilitated the course of justice was much less than would have been the case had the plea been entered at an early stage.

1. The submission of counsel for the State that the appellant's crime constituted a breach of the trust placed in him by the complainant should be accepted. The trust arose from their relationship. His presence in the hotel room, especially when she was made vulnerable by her consumption of alcohol, was a manifestation of her trust in him.
2. The impact of the crime is relevant to sentence. The complainant made a victim impact statement which she read to the sentencing judge. Such statements are to be considered with circumspection for the reasons explained by Crawford CJ in Attorney-General v B [2010] TASCCA 6, 20 Tas R 277 at [55]- [63], and repeated in Belbin v Bennett [2011] TASSC 23, 218 A Crim R 42. She described the type of psychological impact which may foreseeably arise from a crime of this nature: humiliation and indignity, interrupted sleep brought about by memories of the event, panic attacks and social isolation. Although the appellant's belief that he did not penetrate the complainant's anus was not challenged, her anus was in fact penetrated, thereby adding to the sense of violation and degradation she experienced. Vindication of indignity to a victim is an important sentencing consideration.

1. This ground can conveniently be disposed of first. It contends that the sentencing judge erred by giving insufficient weight to the appellant's plea of guilty. The ground does not contend that the sentencing judge failed to give any weight to a relevant matter, only that he did not give it sufficient weight. It is not a proper ground of appeal for the reasons explained by Porter J as a member of this Court in TAP v Tasmania [2014] TASCCA 5 at [30], and by me in Mulholland v Tasmania [2017] TASCCA 2 at [17]. A plea of guilty is one of many relevant sentencing considerations which must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186; Markarian v The Queen [2005] HCA 25, 228 CLR 357. If the sentence is not manifestly excessive taking all such considerations into account, then his Honour did not fail to give sufficient weight to the plea of guilty. This ground fails.

1. Sentences for single counts of aggravated sexual assault are not common. According to Professor Warner's Sentencing in Tasmania, 2nd ed at par 11.425 and Table 17, the maximum sentence imposed for a single count between 1987 and 2000 was imprisonment for 18 months, and the median sentence was eight months. Those figures were based on a sample of only 11 sentences. The Sentencing Advisory Council statistics for the period 2001 to 2014 disclose only 12 sentences for single counts. The maximum sentence was imprisonment for 15 months and the median was six months. During that latter period almost 30% of sentences were non-custodial.
2. Counsel for the appellant referred to a number of sentences for aggravated sexual assault to contrast and compare with the sentence imposed on the appellant:
   • BWD: In 1991 a 27 year old male inserted his finger into the vagina of an 8 year old girl. Sentenced in 2007 to imprisonment for nine months, wholly suspended.
   • K: A man angrily assaulted his former partner by slapping and punching her and inserting his fingers into her vagina. Sentenced in 2007 to imprisonment for three months, wholly suspended.
   • Triffitt: Male aged 46 obnoxiously confronted a 17 year old girl while she was in bed and inserted two fingers into her vagina as she attempted to push him away. Sentenced to imprisonment for four months wholly suspended.
   • Geeves: Male aged 31 climbed into the bed of an 18 year old girl uninvited. While she was asleep, inserted his fingers into her vagina while he masturbated himself. The complainant suffered profound psychological effects. Imprisonment for 15 months.
   • EAB: Male aged 80 inserted his finger into the vagina of his 8 year old granddaughter. Imprisonment for six months, four months suspended.
   • MAJ: Male aged about 42 inserted his finger into the vagina of his 10 year old stepdaughter. Imprisonment for four months.
   • H: A 30 year old male with record for violence, violently threw his former partner onto a bed when she refused to have sex with him. He inserted his fingers into her anus. Assaulted her again the following day. Imprisonment for 15 months without eligibility for parole.
   • Williams: Male podiatrist aged 40 inserted one or more fingers into the anus of a female patient for 5 to 10 seconds. Imprisonment for four months all but 10 days of which was suspended.
3. In TGW v Tasmania [2017] TASCCA 10 this Court recently considered a sentence imposed for a single count of indecent assault, committed by the appellant by placing the complainant's penis in his mouth and sucking it. The lead judgment was written by Porter AJ, with whom Tennent J and Marshall AJ agreed. At [34]-[36], Porter AJ reviewed sentences for that crime and the use to which such sentences may be put in considering the question of whether the sentence under consideration was manifestly excessive. At [36] his Honour stated:

"The limitations on the value of sentencing statistics have often been noted. To be of any value, the number of cases must be such as to provide a discernible established range, and the sentences must be for comparable offending. Difficulties are created when the offence can be committed in various ways, and by the wide variation in circumstances from case to case. An established range does not mean that the range is correct, nor that its lower and upper limits are correct. Where a sentence is outside the range of comparable offending, it is not determinative of the issue; that merely serves to increase the level of scrutiny. An appeal court must make its own evaluation of the gravity of the offence in light of all the facts and circumstances. See Director of Public Prosecutions v Harris [2013] TASCCA 5 per Wood J at [15], Estcourt J at [51]-[52]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]; Connelly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]."

1. I accept that all of the individual sentences for aggravated sexual assault referred to by counsel in this appeal are well below the sentence imposed in this case. I also accept that the sentence imposed is equal to the highest of the sentences referred to in Professor Warners' text for single counts of the crime. However there are too few sentences to establish a reliable sentencing range for single instances of the crime. The circumstances of individual counts vary considerably. The circumstances of the particular cases referred to are materially different than the circumstances of this case. Reasonable consistency in sentencing is a requirement of justice: Wong v The Queen [2001] HCA 64, 207 CLR 584 per Gleeson CJ at 591 [7]. However consistency is not demonstrated by, and does not require "numerical equivalence", but rather, consistency in the application of the relevant legal principles: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 535 [48] and 535-536 [49]. Judges at first instance "are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen (above) at 371 [27].
2. In TGW, the Court concluded that the sentence of imprisonment for 2½ years for indecent assault was manifestly excessive, but substituted a sentence of imprisonment for 18 months with eligibility for parole after 10 months. At [12]-[15], Porter AJ discussed the relative seriousness of the crimes of indecent assault and rape, and noted that rape is generally regarded as a more serious crime. One reason is that penetration is not an element of the crime of indecent assault. The element of non-consensual penetration means that rape is always to be viewed seriously. Although individual circumstances may vary, rape generally attracts higher sentences as a result. A single count of rape ordinarily attracts a sentence of imprisonment of at least three to four years, and higher sentences are appropriate for more serious cases. By contrast with indecent assault, penetration is an element of the crime of aggravated sexual assault. It is generally a more serious crime than indecent assault. Moreover, in my view, the level of culpability associated with penetration by an inanimate object or a part of the human body other than a penis may, depending on the circumstances, be as high as or higher than the level of culpability associated with non-consensual penile penetration. This Court is to consider the gravity of the offence, in light of all of the facts and circumstances relevant to sentence. In my view the gravity of the criminality associated with the penetration committed by the appellant is only marginally less, if at all, than if the penetration had been by his penis. So viewed, I am unable to conclude that a sentence of imprisonment for 18 months is outside the range of sentences available to the sentencing judge in the exercise of a sound discretionary judgment. I would not conclude that the sentence is manifestly excessive.

1. In my opinion neither ground of appeal is made out. I would dismiss the appeal.

1. The appellant appeals from an order of the trial judge in which his Honour sentenced the appellant to 18 months' imprisonment with a non-parole term of nine months. There are two grounds of appeal. The first alleges that the trial judge gave insufficient weight to the appellant's guilty plea. The second alleges that the trial judge imposed a manifestly excessive sentence. The crime was aggravated sexual assault contrary to s 127A of the Criminal Code.
2. Ground 1 involves a sentencing consideration that is relevant to ground 2. It adds nothing to ground 2. As the Court said in Mulholland v Tasmania [2017] TASCCA 2 at [17]:

"A contention that not enough weight was attributed to a material sentencing consideration favourable to the accused adds nothing to a ground that the sentence is manifestly excessive. It is proper to direct the attention of an appeal court to, or emphasise the importance of, an individual sentencing consideration. However, if the sentence is not manifestly excessive when all factors relevant to sentence are taken into account, then it cannot be said that not enough weight was attributed to the particular factor."

1. Therefore the critical ground for examination on the appeal is whether the sentence was manifestly excessive, including by reference to the weight placed by his Honour on the appellant's guilty plea.
2. The circumstances of the offending were as follows.
   • The appellant and the complainant were having marriage difficulties.
   • In what was designed to be a "final joint activity" they stayed together in accommodation at Cradle Mountain.
   • On the evening in question they both consumed a considerable amount of alcohol.
   • After dinner the complainant went to bed, and while lying naked on the bed either lost consciousness or fell asleep.
   • The appellant attempted for between five to ten minutes to sexually arouse the complainant, believing that she was amenable to being so aroused.
   • The appellant then commenced sexual activity by inserting a sex toy into the complainant's anus, believing he was penetrating her vagina instead.
   • The complainant awoke and demanded that the appellant stop immediately, which he did.
   • The complainant became very distressed and suffered significant pain around her anal area for a long period of time.
3. The complainant has been severely affected by the crime. The impact of the crime on her is ongoing and has affected many aspects of her life. The aftermath of the crime, including the reporting of it, was extremely distressing to the complainant. She continues to experience significant emotional impact and psychological distress.
4. The crime involved a significant breach of trust and was committed upon a complainant who was vulnerable due to alcohol consumption. The appellant was aware of the complainant's consumption of alcohol.
5. His Honour took into account several matters in mitigation of sentence, including:
   • the appellant's good work history;
   • an otherwise good character with no prior convictions;
   • that the appellant had endured social opprobrium because of the disclosure of his crime;
   • that the appellant is remorseful;
   • the guilty plea meant that the complainant did not have to give evidence; however that plea was not entered until the morning of the day on which the trial was to commence.
6. As pointed out by Pearce J in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], when a complaint is made that a sentence is manifestly excessive but no particular error is alleged, an appellant court must be satisfied that the sentence is "unreasonable or plainly unjust". His Honour observed that:

"It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: ...".

His Honour also referred to the "wide degree of latitude" which should be given to sentencing judges.

1. The appellant contends that his sentence is "at or above the longest sentence imposed in recent years" for aggravated sexual assault. His counsel submits that the sentence is at the highest end of the range for single counts and lacked many aggravating factors present in other cases.
2. Counsel for the appellant concedes that the circumstances in which the crime of aggravated sexual assault are committed means that there are diverse sentences. He observes that single counts are rare. Whilst also conceding that prior sentences do not set boundaries for sentencing purposes he contends that they point to either excess or inadequacy. Counsel notes that the current sentence is at or above the longest sentence imposed in recent years.
3. Counsel for the respondent observes that every case is different and aggravating and mitigating factors will vary from case to case, as will the relationship between a complainant and an offender.
4. I am not persuaded that the trial judge fell into error in his sentencing approach such that his sentence was unreasonable or plainly unjust. His Honour accepted that apart from the commission of this crime, the appellant appeared to be a person of good character. However, he rightly categorised the crime as serious, having regard to its nature and impact on the complainant. The trial judge took into account the appellant's reckless indifference to the complainant's consent, as well as his genuine belief that the complainant may have been a willing participant. His Honour rightly stressed that unwanted sexual contact is extremely serious criminal conduct.
5. While another judge may not have imposed such a severe sentence on the appellant, I do not believe that the sentence could be described as one which was not open to his Honour given the seriousness of the crime involving the unwanted violation of the complainant's body by the use of an inanimate object.
6. As indicated above, ground 1 adds nothing to ground 2 and is properly considered under ground 2. However, the ground is misconceived in any event. The trial judge did give weight to the appellant's guilty plea but the weight he gave to it was affected by its lateness. The plea came on the day set for the trial. The complainant had been required to travel from interstate to be prepared to give evidence. However, his Honour said that the appellant should be given credit for the fact that the complainant did not have to give evidence. This ground of appeal reveals no appealable error in the sentence imposed by the trial judge.
7. For the foregoing reasons I would dismiss the appeal.

1. Subject to what follows, I agree with the reasons for judgment of Pearce J. I would also dismiss the appeal. I want to add some observations about the issue of the appellant's asserted mistaken belief about consent.
2. Counsel for the appellant submitted that s 14A of the Criminal Code related only to criminal liability, and that the appellant "was still entitled to the mitigatory effect of his asserted 'genuine' belief as to consent". The first part of that submission is clearly correct. Sections 14 and 14A deal with criminal liability and not moral culpability.
3. Section 14 refers to an honest and reasonable but mistaken belief. It is well established that "honest" means "genuinely held", and that reasonableness of a belief is objectively assessed on the basis of the circumstances as perceived by the accused. The reasonableness issue may bear on the question of whether a belief is honest.
4. Section 14A(1) of the Code provides as follows:

"14A Mistake as to consent in certain sexual offences

(1) In proceedings for an offence against section 124, 125B, 127 or 185, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused -

(a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or

(b) was reckless as to whether or not the complainant consented; or

(c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."

1. As can be seen, the provision operates on both aspects of an asserted mistaken belief. In any of the three sets of circumstances provided for, a mistaken belief as to the existence of consent is deemed to be not honest or reasonable. Although ostensibly the provisions mostly relate more to reasonableness, the section operates to negate the element of honesty, irrespective of which limb of s 14A(1) is invoked. It is easy to see the sense of this where recklessness is involved, because that concept seems to involve alluding to the possibility or real risk of a lack of consent, and proceeding regardless. However, in s 14A(1) Parliament has taken the matter further. I add that recklessness would apply in the context of s 14 without recourse to s 14A. This is because recklessness as to consent, and a genuinely held belief as to the existence of consent, are mutually exclusive; the issue of reasonableness does not even arise. Even if, in this context, recklessness simply means having no regard to whether a person is consenting or not, the result is the same.
2. As a matter of principle, leaving aside the issue of recklessness, I would accept the proposition that an honest but mistaken belief about consent would be relevant in the sentencing process.[1] The weight to be given to such a belief would vary according to the circumstances. At the least, it would provide an explanation for an accused's conduct. It would, as Pearce J has mentioned, distinguish it from cases involving knowledge of lack of consent, or where force or threats are used. Whether the belief is mitigatory or denotes an absence of an aggravating factor does not need to be resolved. That depends at on least establishing a median point of culpability in relation to the crime generally.
3. In this case, the material relating to the asserted belief needs to be examined. Before the sentencing judge, then counsel for the appellant first said that the mistaken belief "was not reasonable in the circumstances", but went on to say that this was because of pars (b) and (c) of s 14A(1). Counsel said that the belief was genuinely held, but the appellant acknowledged the failure to take reasonable steps to ascertain whether or not the complainant was consenting. Later, the sentencing judge observed that what was being put suggested that the appellant was not reckless, and asked whether recklessness was accepted. Again, then counsel for the appellant said that the belief could not be honest and reasonable because of the operation of pars (b) and (c), but expanded on that by saying there were steps that could have been reasonably taken to ascertain whether or not the complainant was consenting.
4. The issue became the subject of further debate after Crown counsel's comments in reply. Crown counsel pointed out that there had been five to ten minutes before the commission of the crime charged, during which the appellant had tried to arouse the complainant, touched her vagina, tried to stimulate her clitoris, and inserted his fingers into her vagina. In further explanation of the submission made, the appellant's counsel first agreed with the sentencing judge that sentence could only be passed on the basis that when the offence was committed, the appellant did not hold an honest belief, but in the same breath asserted that the belief was genuinely held.
5. His Honour then pointed out the time period before the commission of the offence and the conduct involved, and suggested that by the time of the offence, there could not have been an honest belief. The appellant's counsel did not seek to make any further submissions, and seems to have acceded to that proposition. That is the basis on which sentence was passed. The sentencing judge said that at the time of penetration the appellant was recklessly indifferent to the complainant's consent. His Honour did not allude to an honest mistaken belief. In the circumstances, that approach is unassailable.

[1] There are broadly analogous situations. Mental impairment falling short of insanity under s 16 of the Code can be relevant to moral culpability: R v Verdins [2007] VSCA 102, 16 VR 269 at [26]. Duress falling short of a defence of compulsion under s 20 of the Code can be relevant to moral culpability: Tiknius v The Queen [2011] NSWCCA 215, 221 A Crim R 365 at [41].