Knight v R

1. [1]

   THE COURT: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed in the District Court on 20 December 2024 by Judge McGuire SC (as his Honour then was). The applicant pleaded guilty to one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence was constituted by an act of fellatio performed on a male victim. The applicant was further charged with a count of aggravated sexual assault, contrary to s 61J(1), constituted by digital anal penetration of the same victim accompanied by reckless infliction of actual bodily harm. He pleaded not guilty and was tried by his Honour, without a jury. The applicant was acquitted of the charge under s 61J(1) but was found guilty of an alternative charge under s 61I, based upon the same facts. Both offences were committed on the night of 18-19 December 2022.

2. [2]

   Each offence carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years. His Honour allowed a discount of 25% on the first count (involving fellatio) and indicated a sentence of 2 years and 7 months with a non-parole period of 1 year and 7 months. On the second count (digital penetration) the indicative sentence was 4 years with a non-parole period of 2 years and 5 months. The aggregate sentence imposed was 4 years with a non-parole period of 2 years and 9 months.

3. [3]

   The grounds of appeal for which leave is sought are as follows:

Circumstances of the offending

1. [4]

   The facts of both offences were found by his Honour on the basis of the evidence adduced in the applicant’s trial on the second count. He did not give evidence in the trial or in the sentence proceedings. The applicant was 66 years old at the time of the offending. He had been married for 25 years but about one month before the offences were committed he disclosed to his wife and daughter that he was homosexual. The applicant’s wife and daughter moved out of the family home when this was revealed.

2. [5]

   The applicant and the victim had been close friends for two years prior to December 2022. The victim was 42 years old at the time of the offences committed against him. Over the two years of their friendship they went camping and fishing together, they spent time with each other’s families, including for the celebration of Christmas, Easter and other significant occasions and they regularly drank alcohol together, often to excess. The victim is also homosexual but there was no evidence that he and the applicant had been in any way intimate with each other prior to the night on which the offences were committed. The victim had on at least one previous occasion slept over in a front room at the applicant’s home.

3. [6]

   The victim accepted an invitation from the applicant to join him at home for dinner on the evening of 18 December 2022. Prior to arriving at the applicant’s home the victim attended a work Christmas function and consumed four to five beers. During the evening the applicant and the victim consumed approximately two beers each, they smoked cannabis together and they had dinner.

4. [7]

   The victim was wearing a T-shirt, shorts and underpants. Sometime after dinner he woke up on the bed in the front room of applicant’s home. He had no idea how he got there. When the victim was woken by the applicant’s sexual contact with him, he found that his shorts and underpants had been removed. The applicant was moving his right hand up and down the victim’s penis, with his mouth over his penis. The applicant was pushing two fingers of his left hand in and out of the victim’s anus. Upon waking the victim said, “Fuck off”. The applicant stopped what he was doing, stood up, apologised and walked out of the room.

5. [8]

   The victim went back to sleep. When he woke in the morning he observed his shorts and underpants on the floor next to the bed. He experienced discomfort in his anus and lower abdomen and he passed blood from his anus.

6. [9]

   The sentencing judge noted features of the objective gravity of the two offences, constituted by the act of fellatio and by the digital anal penetration, respectively. The victim was vulnerable because he was intoxicated to such an extent that the applicant had put him to bed and removed his lower clothing without him being aware. The applicant knew that the victim did not consent because he was asleep and intoxicated when the activity was undertaken. On the other hand, the offending conduct in relation to each count continued only for a matter of seconds and the applicant immediately desisted, apologised and left the room when the victim awoke and told him to stop.

7. [10]

   The first offence, constituted by fellatio, did not involve any violence or physical harm to the victim. However, the digital anal penetration in the second offence was forceful and caused immediate pain and subsequent bleeding and temporary injury. His Honour accepted that the offending conduct was opportunistic and not planned.

Subjective circumstances of the applicant

1. [11]

   The applicant was born and raised in the rural locality where the offending took place. He has resided there for most of his adult years. His early family life was stable and secure. The applicant experienced learning difficulties and left school at the age of 14 years and nine months. Thereafter he was employed in unskilled occupations up to the age of 22, at which time he suffered severe injuries in a motor vehicle accident, including the breakage of both legs. The applicant has been left with permanent disabilities and chronic pain. For many years prior to committing these offences he was supported on a disability pension. For a limited period he was addicted to an oxycodone analgesic. The applicant has been a long-term user of alcohol and cannabis.

2. [12]

   The applicant has suffered significant personal tragedy in the raising of his own family. In August 1998 the applicant’s wife gave birth to their second child, a son, who was afflicted with a severe congenital neurological condition. The applicant and his wife had to provide intensive care for the boy 24 hours a day throughout the 19 years of his life, until he died suddenly in 2017. The applicant’s psychologist assessed that the applicant remains deeply affected by the loss of his son and that he struggles to resolve his grief.

3. [13]

   In the sentence proceedings the applicant was supported by his wife, with a strong letter from her as to his character, his qualities as a husband and father and his kindness and compassion. The applicant realised that he was homosexual from the age of nine years, but he repressed and hid his sexuality for most of his life, realistically expecting that he would be faced with intolerance and victimisation if his sexual orientation should become known in the small world of his rural community. Over the two years from when the applicant became open about being homosexual until he commenced to serve his sentence from 20 December 2024, the applicant faced open hostility and abuse from local townspeople.

4. [14]

   The sentencing judge accepted that the applicant is genuinely remorseful for his conduct, that he has taken responsibility and has acknowledged the harm that he caused. Evidence was given in the trial of the second count concerning the victim’s first disclosures to third parties concerning the sexual offences. That evidence showed that the victim was understandably highly distressed about what had occurred. The sentencing judge also accepted that the applicant would be unlikely to reoffend and that he had good prospects of rehabilitation. Prior to being sentenced he had engaged in 15 counselling sessions to address emotional regulation, to attempt to resolve the trauma and grief associated with his son’s short life and tragic death and to improve his understanding of consent in sexual matters.

5. [15]

   His Honour found special circumstances warranting a departure from the default ratio between the non-parole period and the head sentence. Account was taken of the circumstances that this is the applicant’s first time in custody, that due to his age and medical conditions custody will be more onerous for him than for the general run of prisoners and that a longer period on parole will be required for community-based rehabilitative counselling. The ratio was reduced to 61%.

Ground 1 – motive and intention

1. [16]

   Relevant to the applicant’s motive and intention in committing the offences, which is the subject of ground 1, his Honour found that in a recorded conversation on 20 December 2022 the applicant told the victim that he loved him, that he wanted to be with him, that he could not help himself when he committed the sexual acts and that he would do it again if he had the opportunity. In a sentencing assessment report tendered to his Honour, the author recorded the applicant’s statements to her that he believed “there was mutual sexual tension” between himself and the victim, that the victim often engaged in “prick teasing”, that the applicant had been unable to control himself and that he felt he was entitled to engage in the sexual acts “due to the ‘prick teasing’”.

2. [17]

   At [137] of the sentencing judge’s reasons for finding the applicant guilty of the digital anal intercourse charge, his Honour drew the following conclusions:

3. [18]

   In reliance upon that finding, it was submitted to the sentencing judge on behalf of the applicant that he “had a romantic interest in the victim and his offending is entirely consistent with a ‘misguided act of love’”. It was further submitted to his Honour that this allowed the offending to be placed “in comparison with more commonly serious offending scenarios contemplated within s 61I”.

4. [19]

   In support of ground 1 the applicant submitted, uncontroversially, that motive for offending may be a factor required to be taken into account in assessing objective seriousness: Tepania v R [2018] NSWCCA 247 at [112]. The applicant acknowledged that, depending upon circumstances, motive may not make any difference to objective seriousness, as was found to be the case in R v RE [2023] NSWCCA 184 at [16]. The applicant submitted that, despite it having been explicitly raised on his behalf that a motive of genuine love for the victim mitigated the seriousness of the offending, the sentencing judge “failed to advert to the issue at all in the remarks on sentence” and hence overlooked “a relevant and significant consideration”.

5. [20]

   It is not correct that the sentencing judge overlooked the matter. In his Honour’s remarks he summarised the evidence of the applicant’s express statements to the victim and to police concerning his love for and sexual attraction to the victim, including the statement that the attraction was so strong “he could not help himself” and “would do it again if he had the opportunity” and “did not regret what happened”. However, his Honour did not consider that this motive of love and sexual attraction reduced the moral culpability or the objective seriousness of the offending. That is sufficiently clear from the absence of any finding of such reduction in the body of his Honour’s reasons wherein the relevant evidence is acknowledged and recounted.

6. [21]

   In the circumstances of this case the applicant’s love for the victim was not capable of mitigating the seriousness of his conduct. The applicant proceeded to give effect to his own feelings of love and sexual desire while, to his knowledge, the victim was unconscious and incapable of consenting. The gravity of pursuing affection and sexual impulse in those circumstances is not at all reduced by the fact that the unilateral feelings of the perpetrator are genuine and strong. Ground 1 is without merit and must be rejected.

Ground 2 – manifest excess

1. [22]

   The applicant explicitly does not attempt to support his ground of manifest excess on the basis that the aggregate sentence is inconsistent with the range of sentences that have been imposed in reasonably comparable cases, or that either of the indicative sentences is so inconsistent. It is not alleged that the sentencing orders reflect systemic disparity of the kind discussed by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] and by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] and [62]-[67].

2. [23]

   No doubt the commission of the two offences in a single relatively brief episode warranted a high degree of notional concurrence between the two indicative sentences. That consideration was given reasonable effect by an aggregate in which there is an accumulation on the indicative sentence (for the second count, digital anal penetration) of only 6 months as to the full term and only 4 months as to the non-parole period.

3. [24]

   Ground 2 is to be determined on the principles broadly stated by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], namely, that a conclusion of manifest inadequacy or manifest excess is reached where a sentence is:

4. [25]

   Taking into account all features of objective seriousness and all mitigating subjective circumstances in the present case, in the Court’s view it cannot be said that the sentence imposed in the District Court was plainly unjust. Ground 2 must also be rejected.

Orders

1. [26]

   For these reasons the orders of the Court are as follows: