Slater v R

Court of Criminal Appeal (NSW)|2024-09-18|Before: Harrison CJ, Davies J, Rigg J

JUDGMENT

HARRISON CJ AT CL: I agree with Rigg J.
DAVIES J: I agree with Rigg J.
RIGG J: The applicant, Mr Sean Slater, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence of imprisonment imposed on him by his Honour O'Brien DCJ in the District Court of New South Wales at Nowra on 17 May 2024, following a guilty plea entered 10 days earlier.
The applicant pleaded guilty to one count of sexual intercourse without consent, contrary to s 61I Crimes Act 1900 (NSW). This offence has a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. His Honour imposed a sentence of 23 months imprisonment commencing on 7 May 2024 and expiring on 6 April 2026 with a non-parole period of 13 months expiring on 6 June 2025.
There are two grounds of appeal; namely: 1. Ground 1: His Honour erred in finding that the offence involved recklessness to a moderate degree and the objective criminality of the offence fell below the mid-range but not at the bottom of the range; and 2. Ground 2: His Honour erred in not finding, given the objective seriousness of the offence combined with the offender's powerful subjective case, that this was one of those unusual and / or exceptional cases where a non-custodial sentence was available.
For the following reasons, both grounds should be dismissed.

The offending

The circumstances of the offending were before his Honour in a statement of agreed facts. On 13 May 2022 the victim attended a friend's birthday party, arriving at about 8 pm. The applicant attended this party and was drinking alcohol. During the evening the victim was introduced to the applicant. The only interaction between them other than the introduction was one occasion when the victim was speaking with the woman whose birthday was being celebrated. The applicant came over to them and the victim moved away shortly thereafter.
At about 1am the victim and a friend went to bed on a mattress in the loungeroom, had sexual intercourse, and fell asleep. There was no one else in the room. Whilst asleep the victim inadvertently pushed her friend off the mattress. He accordingly moved to sleep in the garage and sent a light-hearted message about this to her mobile phone. She was unaware of this until after the applicant's criminal offending, as she was asleep.
The agreed facts indicate that at 7am the victim was still asleep by herself, on her back, when the applicant got onto the mattress and moved his hand down the front of her pants and rubbed her genital area. He then inserted a finger into the victim's vagina. She assumed this was her friend and rolled towards the applicant to kiss him, then opened her eyes on feeling a beard and smelling alcohol. The applicant's finger was still inside her vagina. She said "What the fuck are you doing. Get the fuck away from me." He laughed, and she stood up and saw the message on her mobile phone from her friend. She went to the garage and made an immediate complaint to her friend. She proceeded to make distraught complaint to others of waking up with the finger of a man she did not know inside her.
The applicant left the house and was dropped at a train station. Police attended the station because there had been information conveyed of a possible threat to the applicant. When spoken to by police at the station at about 9am on 14 May the applicant said "I was laying on the couch, started kissing up this Sheila which is their cousin or something. I started kissing up with her and fingered her when I was kissing her and supposedly, I raped her and all this kind of shit." He also said "I was kissing her, and I thought yep, sweet I'm in." Soon after this the victim reported the matter to Nowra police station.
The agreed facts state that in the early afternoon the applicant was interviewed by police. There was no evidence of the content of that interview before his Honour, other than the inference that may be drawn from paragraph 20 of the agreed facts which states: "At 1.50 pm that day, the offender voluntarily entered into an interview with the police. The offender maintains he attempted to be honest and genuine in response to the police questions as to what happened and said that he believed the complainant was consenting but accepts that he was intoxicated at the time of the incident, that intoxication is no defence in the circumstances and that he was reckless in the circumstances as to whether the complainant was in fact consenting. He accepts his guilt of the offence accordingly. The Crown does not accept the accuracy of all of his account. The offender is to be sentenced on the facts stipulated herein."
The agreed facts concluded with a paragraph following immediately from that above, which stated "It is agreed that the offender is to be sentenced on the basis that the offender was reckless as to the absence of consent."
A victim impact statement written by the victim explained the change to her life caused by the offending. She had felt safe in her friend's residence, which she called her second home. She said that since the event she suffered nightmares, bad social anxiety, and experienced flashbacks.

The applicant's circumstances

The applicant's circumstances were before the Court by virtue of criminal histories tendered by the Crown and a significant body of documentary evidence tendered in his case as well as oral evidence from his father. The applicant did not give evidence on sentence. He was 34 years of age when sentenced.
The applicant grew up in Fremantle in a close family which moved to Cairns when he was 13. He started an apprenticeship as a mechanical diesel fitter at 16 years of age and had a good work history. He had lived at Holloways Beach, Queensland for over 20 years but moved to Weipa, Queensland following the South East Queensland Floods in December 2023. He was living at Weipa at the time of sentence. He had been fired from work on a number of occasions because of alcohol misuse but had been quickly reinstated.
The applicant had no New South Wales criminal convictions. Fines were imposed in Queensland Magistrates courts for minor offences, with no convictions recorded, in 2009, 2012, 2015 and 2017. He has a Queensland record for traffic offences.
His partner at the time of sentence was supportive and they lived together. He had a number of financial responsibilities due to the floods and his parents' physical health problems. He had taken a significant role in assisting others in the community during the floods.
A report prepared by Dr Marcelo Rodriguez, psychologist, was tendered on the applicant's behalf. Its primary purpose was conveying a diagnosis of alcohol use disorder. Insofar as it contained an account of the offence from the applicant it was objected to and not pressed. There was a further paragraph containing a mixed account of the applicant's mental state at the time of offending and the issue of whether he had laughed after the offence, and it was pressed only to the extent that it bore on the issue of his laughter (the psychologist reporting an account the same as that in the applicant's letter to the court; namely, that he could not recall laughing but gathers it would have been out of nervousness or shock).
The report in part supported a causal connection between the applicant's alcohol use disorder and intoxication at the time of offending (which could not be relied on in mitigation in this case). However, more relevantly, it provided expert opinion of an encouraging prognosis for the applicant given his insight, remorse, absence of other offending, and steps taken to deal with the alcohol abuse.
The applicant wrote a letter to the Court. He apologised to the victim and Court for his actions. He stated that in addition to speaking once to the victim at the party he thought they had danced, but he accepted that this was an inaccurate memory caused by his intoxication. Although he could not remember it, he accepted the victim's account that he laughed. He thought this would have been from shock and apologised for this. He stated that he was incredibly remorseful for the effect of his actions on the victim and others. He stated: "I have now had a lot of time to deeply reflect on the incident and recognise that she could have felt uncomfortable and stressed in the situation. This was definitely not my intention, but I still wish to take full responsibility for my past actions."
The applicant explained that the incident had been a true wake-up call for him in relation to his alcohol consumption. He had significantly reduced his alcohol consumption over the two years since the offending. He explained his financial responsibilities and high level of work commitments.
Numerous character references were tendered speaking of multiple positive personal characteristics of the applicant. He is regarded as a hard working and skilled employee. He is recognised as a loyal, helpful and respectful friend. He had always treated women with respect and was on good terms with his former partner. He was a helpful member of his family and community. The references collectively painted a picture of the offending being considerably out of character.
The applicant's father wrote a letter for the sentence proceedings and gave oral evidence. He reinforced the observations of others regarding the applicant's assistance to the community, particularly after the December 2023 floods. He and his wife had health problems which had increased in the two-year period leading up to the proceedings. The applicant had been providing them with financial assistance as well as emotional and practical support. He confirmed that the applicant had reduced his alcohol consumption. Cross-examination established that the witness had been receiving some sick leave and long service leave and was receiving some income protection payments which were expected to continue until December 2024 which would cover his mortgage costs. He stated in re-examination that if the worst came he would sell his house.
The evidence before the sentencing judge indicated that the applicant was the registered proprietor of two properties in Holloways Beach, both of which were subject to flooding on 17 December 2023. They sustained extensive damage and as at 14 May 2024 one was completely uninhabitable and the other uninhabitable but for a small room occupied by the applicant's former wife, who made rental payments which contributed to part payment of the mortgage. The properties were insured, and insurance claims had been lodged. The land value of the properties was less than the amounts outstanding on the mortgages.

The sentencing hearing and judgment

Written submissions were filed in advance for both parties. In writing and orally it was submitted for the applicant that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had not been crossed and a non-custodial sentence should be imposed.
It was submitted at first instance for the applicant that the offence should be assessed in terms of its objective criminality as falling "at the lower end of the range for offences of this kind" or "at the low end of the range for offending of its type".
It was submitted for the applicant that the main focus of an assessment of objective seriousness should be on the category of liability, which was agreed as recklessness (not knowledge of absence of consent). Heavy reliance was placed on the decision of this Court in Saffin v R [2020] NSWCCA 246 ("Saffin"), and paragraph [20] of the agreed facts, to advance the proposition that there was in this case as a matter of principle a relevant distinction between a finding of a reasonable possibility that the applicant believed the complainant was consenting, and a positive finding of actual belief that she was consenting.
It was nonetheless submitted that this aspect of the submissions for the applicant was not essential to the contention that this offence was objectively in the lower end of the range of conduct contemplated by the section. It was submitted that "the unique factual matrix arises because the offending occurs in the context of a reckless misguided mistake, absent any force, violence or coercion."
It was submitted for the applicant that his subjective case included considerable remorse by his immediate acceptance of sexual intercourse with the victim, albeit he thought consensually. In addressing remorse, it was submitted that while the applicant genuinely believed the victim was consenting, he was reckless in this regard, and apologised to the victim by his guilty plea and the letter which was tendered.
It was submitted that there were highly unusual circumstances to support a community correction order pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act. These were said to be the unique circumstances of the offending in combination with the applicant's alcohol problem, demonstrated remorse from the day of offending, absence of relevant criminal record, good character, plea of guilty, two years without offending after charge, low prospects of re-offending and financial hardship to the applicant and his family if he was incarcerated.
The Crown emphasised that the factual basis of the offending was agreed, and insofar as a contrary statement made by the applicant to police was included in the agreed facts, it was not accepted. The agreed mental element was recklessness, which meant that either the applicant failed to consider at all whether there was consent or he realised the possibility of lack of consent but went ahead anyway. The Crown noted that self-induced intoxication could not be taken into account in relation to the applicant's knowledge of whether the victim consented, in reducing moral culpability, or as a mitigating factor on sentence, referring to s 21A(5AA) of the Crimes (Sentencing Procedure) Act and Fisher v R; R v Fisher [2021] NSWCCA 91 ("Fisher") at [71]-[75] (Fullerton J) and [221], [224]-[225], [232] and [255] (Adamson J, as her Honour then was) (Brereton JA dissenting), and R v Alcazar [2017] NSWCCA 51 at [126].
The Crown submitted that while the practice of indicating where upon a notional scale a matter falls in relation to objective seriousness is neither precise nor prescriptive, the offence was not at the low or lower end of the range of offending covered by this offence provision. It was submitted that lack of threat and force was not material where the victim was asleep. It was submitted that general deterrence had an important role to play. It was submitted that the seriousness of the offence required the imposition of a period of imprisonment.
In an ex-tempore judgment, the sentencing judge recorded the agreed facts, relevance of maximum penalty and standard non-parole period, and purposes of sentencing. His Honour allowed a 10 per cent discount for the applicant's guilty plea in accordance with the statutory regime and the agreed position of the parties. His Honour allowed for 10 days of pre-sentence custody, to recognise five days on remand and 10 days under house arrest.
In considering the objective seriousness of the offence his Honour noted that the conduct constituting such an offence may vary greatly, as may the knowledge or awareness of an offender as to a victim's lack of consent. His Honour stated: "At the time of the offence an offender's knowledge of a lack of consent could be established in one of three ways in reducing degrees of moral culpability, and in respect of which there may not be a clear dividing line: Saffin v R [2020] NSWCCA 246 per Basten JA at [50]. They are first, that the offender knew the victim did not consent; secondly, that the offender was reckless as to whether the victim consented; and thirdly, that the offender had no reasonable grounds for believing that the victim consented. The offender must be sentenced on the second of these bases."
His Honour noted the applicant maintained he was being honest and genuine when he told police at the time he believed the complainant was consenting. His Honour continued to state that "By his plea to the agreed facts he now accepts that any such belief was recklessly held."
His Honour held that the absence of force or threat did not lessen objective seriousness where the victim was asleep, referring to Kelly v R [2022] NSWCCA 189 at [35]. His Honour noted that after the victim did object the applicant desisted. His Honour confirmed the facts regarding the applicant's mental state in this way: "The facts indicate he took no steps whatsoever to ascertain whether the victim, a complete stranger to him, was willing to engage in sexual activity prior to his commencing to touch, rub and then digitally penetrate her vagina. The fact the victim may have responded to the offender, in circumstances where she believed he was someone else, is of no moment because by then the criminal act for which he is to be sentenced was complete."
His Honour did not consider the evidence sufficient to allow any finding against the applicant because of his laughter. His Honour found the offence opportunistic and impulsive, with any planning limited to the decision to join the victim on the bed. His Honour noted the submission of Senior Counsel for the applicant that the offending had lasted "some minutes only." His Honour had no doubt the applicant was intoxicated but confirmed that this could not be taken into account as a matter of mitigation, nor as a means of explaining the applicant's conduct so as to reduce moral culpability. His Honour then stated: "In my view, all these matters point to his recklessness being to at least a moderate degree."
His Honour, expressly mindful of the imprecision involved, concluded that the offence fell at a point below the mid-range but not at the bottom of the range for offences contrary to s 61I of the Crimes Act.
His Honour referred to all relevant aspects of the positive subjective case advanced for the applicant. He accepted the applicant to have a low risk of sexual reoffending, and a risk of reoffending generally as low, if he could continue his positive progress in relation to the consumption of alcohol. The applicant was accepted to be genuinely remorseful. The offending was accepted to be out of character.
The sentencing judge stated that he kept the terms of s 5 of the Crimes (Sentencing Procedure) Act at the forefront of his mind. His Honour stated that it would be an unusual or exceptional case in which a sentence other than custody would be appropriate for sexual intercourse without consent, and stated his understanding that the contention for the applicant was that this was such a case. His Honour concluded: "In the final analysis the matters to which Senior Counsel has pointed, both singularly and in combination do not rise to the level of exceptional, so enabling me to deal with the matter in the way he has suggested. The offending is simply too serious for any outcome other than the imposition of a custodial sentence. To do otherwise would not reflect the purposes of sentencing within s 3A and particularly those of general deterrence, denunciation and recognition of the harm done to the victim."
His Honour found special circumstances for varying the ratio between non-parole period and total sentence based upon the applicant's isolation from most of his friends and family during his period of imprisonment, the need for assistance with alcohol misuse on release, his good prospects of rehabilitation if assisted in this regard, and this being the applicant's first sentence of imprisonment.

The submissions on appeal

Senior Counsel for the applicant submitted that the major issue in relation to ground 1 was the significant weight which should have been given to the applicant's mental state as set out in paragraph 20 of the agreed facts. It was submitted that if the applicant had been contending in the sentencing proceedings that he actually had a genuine but unreasonable belief that the victim was consenting he would have carried a burden to prove this on the balance of probabilities. [1] It was submitted that the distinct proposition in this case was that there was a reasonable possibility that the applicant had such a belief, and that it was very important for the sentencing judge to have made a finding in this regard.
The applicant submitted that as a matter of principle, based upon the decision in Saffin, "... the finding of there being a reasonable possibility that the offender believed the complainant was consenting, as opposed to a positive finding of actual belief in that regard, is a proper basis for a finding of recklessness." It was submitted that it was held in Saffin that the finding by the sentencing judge in that case that there was a reasonable possibility that Mr Saffin believed the victim was consenting "equated to recklessness."
It was submitted that his Honour's finding that the offending involved recklessness to a "moderate degree" did not accord with the finding appropriate for the circumstances set out in paragraph 20 of the agreed facts. It was submitted that whereas an actual belief that the victim was consenting would place the objective seriousness in the lowest relevant category, "... a finding of recklessness on the basis that there was a reasonable possibility that an offender believed the complainant was consenting should place such an offence just above the lowest category." It was submitted that there should thus have been a finding that the objective seriousness of the offence was just above the lowest category, not "below the mid-range although not at the bottom of the range."
It was not explained in the proceedings at first instance nor in the applicant's written submissions in this Court whether the reasonable doubt about the applicant's belief in consent that it was asserted the sentencing judge ought to have held discounted or included the applicant's state of intoxication. However, it was submitted during the course of the hearing that there were varying degrees of recklessness; namely: "There can be an offender who doesn't care less and embarks upon the offending conduct; there can be a middle road of some haziness in relation to the level of risk that was involved in whether or not the complainant was consenting; or there could be a situation that it's reasonably possible that the offender considered that the complainant was consenting but realises because of intoxication that was wrong which is also demonstrated by the other objective facts but can't use that level of intoxication."
Ground 2 was based significantly although not exclusively on successful determination of ground 1. The essence of the applicant's argument was that it was not open to the sentencing judge to find the threshold in s 5 of the Crimes (Sentencing Procedure) Act crossed. There was no submission that his Honour misstated any sentencing principle. In particular, there was no complaint regarding the apparent requirement for exceptional circumstances before a sentencing option other than a custodial one would be imposed. It was argued that there was latent error in the determination to impose a custodial sentence.
The Crown submitted on appeal, as it had at first instance, that recklessness as to lack of consent meant the applicant failed to consider at all whether there was consent, or that he realised the possibility of lack of consent but went ahead anyway. It was submitted that the applicant's reliance on Saffin was misplaced. It was submitted that the last sentence of paragraph [50] of Saffin made it quite clear that while there can be overlap between the three relevant mental states, that overlap ceases if the offender thought the victim was consenting. It was submitted that the decision in Saffin did not create a form of less culpable recklessness where there is a reasonable possibility an offender believes (unreasonably) that a victim is consenting.
The Crown submitted that the sentencing judge was bound by the agreed facts which stipulated recklessness as the relevant mental state. It was submitted that there was in any event no evidence to raise a reasonable doubt about the applicant's belief that the victim was consenting, and the totality of evidence plainly supported a finding of recklessness. It was emphasised that the applicant and victim did not know one another, and the victim was asleep.
The Crown accordingly submitted that it was not open to the sentencing judge as a matter of law or as a matter of fact to entertain a reasonable doubt that there was any belief that the victim was consenting.
As to ground 2, the Crown submitted that all the circumstances of the offence and offender clearly required a custodial sentence and endorsed the sentencing judge's finding that "... the offending is simply too serious for any outcome other than the imposition of a custodial sentence." It was submitted that there was no error in his Honour's determination.

Determination

At the date of the present offence, the relevant legislative provisions were as follows: 61HE Consent in relation to sexual 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, 61JA, 61KC, 61KD, 61KE and 61KF. (2) Meaning of "consent" A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. (3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. (4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case - (a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but (b) not including any self-induced intoxication of the person.
On one view of ground 1 its determination is straightforward. The characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge, and it is necessary to show a House v King (1936) 55 CLR 499; [1936] HCA 40 error for this court to intervene: Mulato v R [2006] NSWCCA 282. Given the necessary imprecision in descriptions of the kind used in the District Court by the parties and the sentencing judge, there is no inconsistency between the offence being assessed as below mid-range but not at the bottom of the range (the sentencing judge's determination), and the offence being in the low or lower range (the position advanced at first instance for the applicant).
Nor is there necessarily inconsistency between this determination by the sentencing judge and the characterisation advanced for the applicant on appeal (just above the lowest category). Specification of the difference of the objective seriousness of the offence from the bottom of the range was not advanced at first instance as necessary. This was not only a finding that his Honour was not asked to make, but it was a finding that his Honour was not required to make. Although this was an offence carrying a standard non-parole period his Honour was not required to make a finding as to the extent to which the seriousness of the offence differed from a sexual assault that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. Apart from the large number of cases making this clear, the terms of s ss 54A and s 54B(6) of the Crimes (Sentencing Procedure) Act state this explicitly. There is no basis to find error in his Honour not specifying the extent to which the seriousness of the offence differed from an offence at the bottom of the range.
However, the applicant also raises an assertion of patent error in the assessment of objective seriousness. It is submitted that the decision of this Court in Saffin intersects with the agreed facts in this case so as to have required different findings by the sentencing judge. The Court is asked to determine that his Honour was required to find that there was a reasonable possibility that the applicant believed the victim was consenting, failed to do so, and consequently erred in finding "at least a moderate degree" of recklessness and, ultimately, in not finding the objective seriousness as "just above the bottom category".
This case does not require lengthy analysis of the law of recklessness in sexual assault. Detailed consideration of the meaning of recklessness in sexual assault in New South Wales, in appeals against convictions for offending in contravention of the provision as in force at the same time as relevant to this case but referring to historical developments, has been recently undertaken by Button J (Kirk JA and Lonergan J agreeing) in Lee v R [2023] NSWCCA 203 ("Lee") at [146]-[284] and Adamson JA (Wilson and Faulkner JJ agreeing) in Tuuholoaki v R [2024] NSWCCA 135 ("Tuuholoaki") at [244]-[276]. The concept is always concerned with the subjective thought processes of the accused. As made clear in the majority judgment of the High Court in Banditt v R (2005) 224 CLR 262; [2005] HCA 80, this distinguishes recklessness in the context of the crime of sexual assault from recklessness in other areas of law such as the tort of negligence, and from the objective hue the word may have in ordinary usage, such as indicating conduct that is negligent or careless. [2]
As these cases make clear, recklessness is made out where the accused realises there is a possibility the other person does not consent to sexual intercourse but proceeds regardless (sometimes called advertent recklessness) or where the accused does not consider at all whether the other person is consenting (sometimes called inadvertent recklessness and called non-advertent recklessness in Lee). Paragraphs 20 and 21 of the agreed facts in this matter did not indicate "reckless" to mean anything other than one of these two orthodox uses.
I do not take the applicant's argument to be that in this case a reasonable possibility that he believed the complainant was consenting had significance alongside the fact that he realised the possibility that she was not consenting or did not turn his mind to the issue of consent at all. I will return to that different argument in case I am wrong in my understanding of the applicant's argument. I take the applicant's argument to be that there is a third category of recklessness. I reach this conclusion because at no point before the sentencing judge or in this Court was it acknowledged on the applicant's behalf that he was to be sentenced on the basis that he appreciated the possibility that the victim was not consenting and proceeded regardless or did not consider the issue at all. Further, as referred to above at [28] and [29], the submissions at first instance referred to the applicant being reckless in his genuine belief the victim was consenting, and to his reckless, misguided mistake. As referred to above at [43] and [44] the submissions in this Court referred to the reasonable possibility of the applicant's belief in consent as the "basis for" the finding of recklessness, to "... recklessness on the basis that there was a reasonable possibility that an offender believed the complainant was consenting..", and the reasonable possibility of belief in consent referred to in Saffin as "equating with" recklessness. The submission during the hearing quoted above at [45] confirms that the applicant is contending there is a distinct category of recklessness which arises where there is a reasonable possibility the applicant believed the complainant was consenting. For the reasons that follow, the applicant's contention that there is such a third category of recklessness cannot be accepted.
There were no submissions advanced for the applicant that engaged with the authorities outlined in Lee and Tuuholoaki as to what recklessness means. No authority was referred to in support of the proposition that there is a third category of recklessness other than Saffin. However, it was not held in Saffin that there is such a third category, and the detailed analyses this year and last year of the law of recklessness in Tuuholoaki and Lee did not refer to any such third category.
The predecessor to s 61HE, as set out above at [51] was s 61HA(3), which was in relevantly similar terms to s 61HE. It provided as follows: 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.
That section was considered in Saffin by Basten JA (Rothman J and Price J, as his Honour then was, agreeing).
A ground of appeal contending that the sentencing judge had erred in sentencing Mr Saffin on the basis that he was reckless as to whether the victim consented was dismissed, as was a ground contending that the aggregate sentence was manifestly excessive. Mr Saffin was convicted at trial of six counts of sexual assault, aggravated by deprivation of the victim's liberty, five counts of indecent assault and two acts of indecency. He received an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years and 4 months. The longest indicative sentence for a sexual assault offence was 8 years imprisonment.
The sentencing exercise followed a trial, and there was no agreement as to the basis on which knowledge of lack of consent was proved. The offences were perpetrated by sustained violence with threats including with weapons, detention, degrading conduct, and the victim's repeated statements of non-consent. However, evidence was adduced on sentence of Mr Saffin's autism spectrum disorder and the impact of this on his understanding of social interactions. In the course of declining to find beyond reasonable doubt actual knowledge of lack of consent, the sentencing judge referred to the expert evidence and to two aspects of the facts that appeared to support the possibility that Mr Saffin honestly believed the victim was consenting and which undermined a conclusive finding of actual knowledge of lack of consent.
The argument on appeal, as recorded at [44], was that this finding 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 it was submitted that there was error in the sentencing judge finding that, notwithstanding those two matters, the whole of the evidence led to a conclusion beyond reasonable doubt that Mr Saffin at least appreciated that there was a real possibility the victim was not consenting but persisted in the offending conduct anyway (recklessness). The sentencing judge had concluded beyond reasonable doubt that notwithstanding his autism spectrum disorder and the incapacities that attend it, Mr Saffin was at least alive to the possibility that the victim was not consenting to any of the acts of sexual intercourse.
In dismissing the appeal, a number of general observations were made. At [22] it was stated, referring to s 61HA(3) of the Crimes Act: "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…"
At [49] it was confirmed that the sentencing judge had reached a conclusion on recklessness to the criminal standard. At [50] it was held: "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) (sic) 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)."
Mr Saffin was not sentenced on the basis of a mental state of recklessness demonstrated by the reasonable possibility he believed the victim was consenting. He was sentenced on the basis of a mental state of recklessness in the orthodox sense of appreciating the possibility the victim was not consenting and proceeding regardless. This Court in Saffin did not endorse or create a new category of recklessness. The Court was concerned with whether the sentencing judge's satisfaction beyond reasonable doubt that Mr Saffin did appreciate the possibility that the victim was not consenting was necessarily compromised by reflections on two items of evidence considered in the context of declining to be satisfied beyond reasonable doubt of actual knowledge of lack of consent. The nuances of the onus and standard of proof in the particular circumstances that arose in Saffin do not need to be considered further in this case, as it was agreed between the parties that recklessness was the relevant mental state.
Although there may be factual overlap between the categories, a reasonable possibility of belief in consent means recklessness has not been proved beyond reasonable doubt. I repeat that the interplay of that proposition with the outcome in Saffin does not need to be considered further because recklessness was the agreed mental state in the case now before the court. However, the manner in which the applicant's case has been framed overlooks the importance of the subjective focus of recklessness - the accused personally having foresight of the possibility of non-consent or personally not considering consent at all. Prior to 2008 a reasonable possibility that the accused believed the complainant was consenting - even if unreasonably - was exculpatory. [3] It meant the Crown had not proved beyond reasonable doubt either knowledge of lack of consent, or foresight of the possibility of lack of consent.
The applicant's argument also focuses unduly on strictly delineated hierarchical categories with fixed consequences. The three relevant methods of proof of knowledge of absence of consent do not accompany bright line demarcations. Although they may often in a very general sense be seen as decreasing in order of seriousness, this is not invariably so: see for example R v Ibrahim [2021] NSWCCA 296 at [48] (Dhanji J, Johnson and Lonergan JJ agreeing). The seriousness of the offending will depend on all the circumstances. The recent decision of this Court in Cornish v R [2024] NSWCCA 177 is an example of offending where the applicant was sentenced for two offences of sexual assault on the basis of an unreasonable belief in consent. The sentencing judge's assessment of objective seriousness (just below the mid-range for one offence, in the mid-range for the other) was nonetheless found to be open; in part, because it was "...an extreme case where the agreed facts demonstrate the complete unreasonableness of the belief…" (Davies J, Stern JA and Ierace J agreeing). In the case of Saffin, relied upon by the applicant, the aggregate sentence of 14 years imprisonment, with indicative sentences of up to 8 years for the (aggravated) sexual assault counts, was not manifestly excessive - despite the comments made regarding the possibility of belief in consent.
The sentencing judge was required to identify fully the facts, matters and circumstances which bore upon the judgment to be reached about the appropriate sentence to be imposed: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]. Relevantly, this included the fact that the applicant was reckless when he inserted his finger into the vagina of the sleeping victim, either because he realised the possibility that she was not consenting and proceeded regardless or did not consider the issue of whether she was consenting at all. The agreed facts at paragraphs 20 and 21 do not specify which of these pertained. This does not matter. The relevant point is that it was one of them.
The potential alternative argument I referred to above at [57] would be rejected, had it been advanced, as inviting an approach with no utility. There is no need to determine in this case whether it is possible in the abstract for a reasonable possibility of belief in consent to exist alongside agreed recklessness (realisation of possibility of absence of consent or non-advertence to it). It is not a fact, matter or circumstance that could bear upon the appropriate sentence.
Aspects of evidence illuminating an individual offender's mental state may be highly relevant, as long as not inconsistent with any agreed basis of knowledge of absence of consent. The concept of "hope" that a victim was consenting is sometimes referred to in the cases considering recklessness. However, there was no evidence of any such mental state in this case, nor factually any basis to support the applicant's argument.
Without even addressing the problems of the applicant's reliance on intoxication caused by s 61HE(4)(b) of the Crimes Act, s 21A(5AA) of the Crimes (Sentencing Procedure) Act, and the decision of this Court in Fisher, there was no evidentiary basis for the sentencing judge to regard as reasonable the possibility that the applicant believed at the relevant time that the victim was consenting.
The agreed facts provided no support for such a proposition. These record agreement as to the circumstances of the offending (which are clearly not suggestive of any such belief) and agreement that recklessness was the applicant's mental state. The agreed facts note the applicant maintains he was genuine with the police when he spoke retrospectively of the event. This does not reflect agreement that the applicant was genuine, and far less that he was accurate.
The Crown did not argue at first instance that the applicant was not genuine with police when he spoke retrospectively of the event. This was of importance to the integrity of the applicant's subjective case, in so far as demonstrated deceitfulness could have undermined aspects of it.
However, even if genuine, the applicant's retrospective account of the events in question was clearly incorrect to a very significant degree. The only account of the applicant's recollection of events before the Court was that provided to police at 9am, two hours after the event. It is described above at [10]. However, the sexual intercourse did not occur whilst he was on a couch "kissing up with" the victim, leading him to believe touching her genital area then digital penetration would be with consent, then proceeding with such action. She was by herself in a room asleep on a mattress and essentially unknown to him.
It was not argued before the sentencing judge, nor on appeal, that there was any evidentiary support for the proposition that immediately preceding penetration of the victim the applicant did not realise she was a stranger asleep on a mattress, but instead wrongly perceived her to be awake on a couch kissing him. The most favourable import of the agreed facts for the applicant was that, when speaking with police, he wrongly remembered his thought processes and his interaction with the victim. Similarly, his tendered letter acknowledged that because he was intoxicated, he wrongly remembered he had danced with the victim, and it was acknowledged that he did not remember laughing when the victim woke up.
It was open to the applicant to not agree to recklessness as the mental element for his offence and require the sentencing judge to determine this issue. On the material before the Court, that would have given rise to a risk of the sentencing judge finding that the applicant knew the victim was not consenting. The material before his Honour provided no evidentiary support whatsoever for a belief at the time of offending that the victim was consenting.
The applicant's argument that his Honour was required to make a finding that the applicant's offending was just above the lowest category, because of a reasonable possibility that he believed the victim was consenting, thus fails legally and factually.
The sentencing judge's statement that the applicant accepted by his plea that any belief he had that the victim was consenting was recklessly held was unduly favourable to the applicant, if that formed part of the basis on which his Honour sentenced the applicant, unless it was meant to convey that the belief was held recklessly in the sense of understanding the prospect the victim was not consenting. Recklessness in connection with the law of sexual assault in New South Wales does not encompass an active belief in consent wrongly formed. The submissions to the sentencing judge that this was a case of a reckless, misguided mistake, and a reckless genuine belief the victim was consenting did not correspond with the law of recklessness. I have already explained why the applicant's argument for a third category of recklessness does not succeed. However even the submission advanced on appeal, as referred to above at [45], of middle category of recklessness where there is some haziness as to the risk of non-consent lacks correspondence with recklessness in this field, unless specifically acknowledging a risk of non-consent an accused is alert to or referring to his complete failure to consider the issue (when the risk of non-consent would have been apparent to a person of the accused's mental aptitude).
His Honour otherwise dealt with the applicant's mental state consistently with the agreed facts. His Honour did not make a finding as to whether the applicant realised a possibility that the victim was not consenting or did not consider consent at all. His Honour was not required to choose between these two forms of recklessness. However, it would have been desirable, in light of the submissions made, to confirm that the applicant was to be sentenced on the basis of being reckless in one of these ways, not on the basis of a reckless belief in consent.
His Honour was not required to make a finding as to the seriousness of recklessness involved in this case by comparison to any scale. However, on the facts as agreed his Honour's finding of recklessness to "at least a moderate degree" was clearly open, as was the finding that the offence was "below mid-range but not at the bottom of the range."
Ground 1 should be dismissed.
To the limited extent that ground 2 was argued independently of ground 1, I have considered all the circumstances of the offence as well as the applicant's circumstances. Having done so I am of the view that it was plainly open to the sentencing judge to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment was appropriate. This determination was not unreasonable or plainly unjust.
Ground 2 should be dismissed.
The orders I propose are as follows: 1. Grant leave to appeal; 2. Dismiss the appeal.

Endnotes

In circumstances where the facts were agreed, this contention does not need to be addressed.
Banditt v R (2005) 224 CLR 262; [2005] HCA 80 at [2], [36] (Gummow, Hayne and Heydon JJ),
The legislative history of criminalising 'unreasonable belief in consent' is referred to in Lee at [135]-[136] and [151]-[153]. 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: 15 November 2024

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