Saffin v R

1. [1]

   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.

2. [2]

   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.

3. [3]

   Ground 3 in the notice of appeal alleged that this sentence was manifestly excessive. The trial judge noted that the offender had a significant criminal history which warranted no leniency. There is no complaint about that finding. The only basis for the high degree of lenience sought by ground 3 was the finding of a clinical psychologist, Dr Sally Clifford, that the offender suffered from autism spectrum disorder. A report providing support for the diagnosis was prepared by her with a clinical psychologist, Steven Den-Kaat. The psychologists suggested that, despite the implicit threats and the actual restraints imposed by the offender, together with victim’s explicit statements that he was not consenting, the offender was nevertheless unable to comprehend that the victim was not consenting. It will be necessary to consider the relationship between the diagnosis of autism spectrum disorder and the inferences the psychologists drew as to the applicant’s state of mind. (There was no direct evidence of his state of mind, the applicant not having given evidence at trial or on sentence.)

4. [4]

   There were two further grounds of appeal, namely that the sentencing judge erred:

5. [5]

   The grounds of appeal require that this judgment set out a description of the elements of each offence, although these are no longer in dispute and are carefully recounted in the unpublished judgment of the sentencing judge, from which this account is taken.

Circumstances of offending

1. [6]

   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.

2. [7]

   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.

3. [8]

   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.

4. [9]

   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.

5. [10]

   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).

6. [11]

   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".

7. [12]

   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.

8. [13]

   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).

9. [14]

   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).

10. [15]

    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).

11. [16]

    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.

12. [17]

    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.

13. [18]

    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.

14. [19]

    In describing the nature and circumstances of the offending, the judge found: [1]

The psychological evidence

1. [20]

   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:

2. [21]

   Consent and knowledge about consent are concepts dealt with in s 61HA:

3. [22]

   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.

4. [23]

   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.

5. [24]

   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.

6. [25]

   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]

7. [26]

   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]

8. [27]

   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.

9. [28]

   In the written report, the psychologists commenced with an important qualification, explained in the following terms: [5]

10. [29]

    The psychologists related the possible impact of the applicant’s lack of insight: [7]

11. [30]

    Finally, the psychologists opined: [8]

12. [31]

    The basis of each of these opinions was challenged in cross-examination.

13. [32]

    With respect to personality disorder, the psychologists stated: [9]

14. [33]

    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:

15. [34]

    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.)

16. [35]

    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.

17. [36]

    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]

18. [37]

    Following a short adjournment, the cross-examination continued as follows: [13]

19. [38]

    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.

20. [39]

    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

1. [40]

   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.

2. [41]

   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.

3. [42]

   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,

4. [43]

   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]

5. [44]

   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:

6. [45]

   The judge then proceeded to explain why he reached that conclusion despite the diagnosis of Dr Clifford: [17]

7. [46]

   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]

8. [47]

   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.

9. [48]

   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:

10. [49]

    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.

11. [50]

    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).

12. [51]

    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

1. [52]

   Ground 2 took issue with the following finding by the sentencing judge: [21]

2. [53]

   The primary factual submission with respect to this ground was in the following terms: [22]

3. [54]

   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]

4. [55]

   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.

5. [56]

   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.

6. [57]

   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.

7. [58]

   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.

8. [59]

   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.

9. [60]

   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.

10. [61]

    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.

11. [62]

    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.

12. [63]

    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]

13. [64]

    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]

14. [65]

    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.

15. [66]

    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

1. [67]

   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.

2. [68]

   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]

3. [69]

   No error was revealed there. The submissions concluded:

4. [70]

   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

1. [71]

   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.

2. [72]

   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.

3. [73]

   The Court should make the following orders:

   1. (1)

      Grant the applicant an extension of time until 28 February 2020 within which to file the application for leave to appeal.

   2. (2)

      Grant the applicant leave to appeal against the aggregate sentence imposed on him by the District Court on 5 May 2017.

   3. (3)

      Dismiss the appeal.

4. [74]

   ROTHMAN J: I agree with Basten JA.

5. [75]

   PRICE J: I agree with Basten JA.