Chen v R

THE COURT: The applicant seeks leave to appeal from an aggregate sentence imposed by his Honour Judge Pickering SC in the District Court on 11 April 2025. He pleaded guilty to the following charges, each of them committed against the complainant at her home at West Ryde on 16 August 2022:

The indicative sentences took into account a 10% discount that was allowed for the accused having entered his pleas at the call over in the District Court. His Honour fixed an aggregate sentence of 2 years and 3 months with a non-parole period of 1 year and 2 months. Four grounds of appeal were specified in the Notice of Appeal but at the hearing only one ground was pressed, namely, that the learned sentencing judge made a material error of fact in relation to count 1. His Honour concluded that the applicant proceeded with the physical acts that constituted his attempt to have sexual intercourse with the complainant in a state of mind that he was going to have sex with her no matter what, in disregard of whether she did or did not consent. It is said that that finding was not open.

The pleas were entered on the basis of an agreed statement of facts, only part of which need be referred to for the purpose of determining the leave application. The applicant was 31 years of age in August 2022. He was self-employed as a Gyprock installer. He had been in a relationship with his wife for 10 years and they had two children. In 2018 the applicant commenced an extramarital sexual relationship with the complainant. She was about 11 years his senior and was aged 42 years at the date of the offences. In 2020, while the applicant’s intimate relationship with the complainant was ongoing, she commenced activities as a sex worker. The applicant was unaware of that until June 2022. When he found out he asked her to stop and offered her financial assistance. She continued nonetheless.

On the evening of 15 August 2022 the applicant went out to dinner with friends and consumed a number of alcoholic drinks. From 5:45 pm he made numerous phone calls to the complainant and sent numerous text and voice messages. She was working that night but finished and returned home at about 10:00 pm. She changed into a T-shirt, underwear and dressing gown. She saw numerous missed calls from the applicant. At about 11:07 pm she sent the applicant the following text message, in Mandarin:

The agreed statement of facts continues as follows:

The applicant berated the complainant for working as a prostitute. She began to cry. The applicant went into the bathroom, then returned and started to take off his shirt. The complainant said, “Why you taking off your clothes? If you want to sleep, go back to your home”. The applicant said, “I cannot go back, I am very drunk, I want to sleep here”. Shortly afterwards, the applicant took off his shirt and pants so that he was wearing only his underwear. The complainant noticed that his penis was erect.

The complainant was at that time still sitting at the head of her bed with her legs crossed. In the agreed facts the applicant’s attempt to have sexual intercourse is recounted in these terms:

According to par 16 of the agreed facts, the applicant got up off the floor “after a while” and put his clothes back on. He then approached the complainant again and the assault occasioning actual bodily harm took place. It is not necessary to recite the facts of that offence.

By pleading guilty to the first count, the applicant admitted that he knew the complainant was not consenting to sexual intercourse when he pursued his attempt by removing his own clothes, removing her underwear and thrusting himself against her. The agreed facts did not specify whether his knowledge of non-consent took the form of actual knowledge as provided for in par (a) of s 61HK(1) of the Crimes Act, or recklessness as provided for in par (b). The applicant’s counsel insisted, in written and oral submissions, that he had pleaded on the basis that his state of mind was recklessness and not actual knowledge. The solicitor who appeared for the Crown at the sentence hearing withdrew his initial submission in writing that the applicant had actual knowledge of non-consent. He told the judge this:

At p 4 of his Remarks on Sentence the learned judge referred to the initial lack of clarity about that point and continued as follows:

In the following passage at p 5 his Honour addressed counsel’s submission as to when “the offence … commenced”. The submission was really an argument about the timing of the complainant’s intimations of non-consent and about when actual realisation of her non-consent may have dawned on the applicant:

The learned sentencing judge concluded his consideration of the applicant’s knowledge of non-consent at p 6 of the Remarks as follows:

His Honour’s conclusion that the applicant manifested an intention “to try and have sex with her essentially no matter what” is another way of saying that he was reckless as to her non-consent. The essence of the quoted findings is that, in assessing the gravity of the applicant’s recklessness, his Honour took into account that the complainant’s non-consent to sexual activity had been clearly conveyed from the moment the applicant entered her home and that her non-consent would have been apparent to him from that time if he had considered her wishes at all. His Honour concluded that the applicant’s actions from when he exited the bathroom, which was when he commenced to undress, were contrary to the complainant’s wishes. The agreed basis that there was recklessness on the matter of consent inherently involved that the applicant gave no thought to whether or not the complainant consented. As his Honour justifiably concluded:

Counsel who appeared for the applicant did not rely upon the written submissions filed in this Court, that were prepared by his predecessor on the brief. In oral submissions he endeavoured to support the appeal ground as follows:

It was pointed out to counsel that, according to the agreed facts, the complainant made it clear when the applicant came out of the bathroom that she did not want him to get undressed or to have sex with her. The following exchange then took place

There is no substance to this argument. Of course the facts included that the applicant desisted without having completed the sexual act. That is why the charge was one of attempt only. Contrary to counsel’s submission, where an offender has broken off his conduct before penetration, it is open to a tribunal of fact to find that, while proceeding as far as he did, he was reckless about non-consent in the sense of excluding consideration of the complainant’s wishes. Further, the applicant agreed that he was reckless about the complainant’s wishes when he committed the physical aspects of the attempt. Indeed, he insisted upon recklessness as opposed to actual knowledge. In the circumstances of the case, his admission of that mental state amounted to exactly what the learned judge found, namely, that he determined upon making the attempt without turning his mind to “the question of what she wanted” and that he proceeded no matter what her wishes might be up to the point where she kicked him away.

The proposed ground of appeal has not been shown to be arguable. The order of the Court is as follows: