Fisher v R; R v Fisher

1. [1]

   BRERETON JA: The applicant Matthew Fisher seeks leave to appeal from his conviction by a jury on 19 February 2020 of an offence under s 61I of the (NSW) Crimes Act 1900 (“Crimes Act”) (sexual intercourse without consent, on 26 January 2018, at Castle Hill). On a second count, which alleged a second offence under the same provision at the same time and place, the jury was unable to reach a verdict and was discharged, and the Director of Public Prosecutions has since directed that there be no further proceedings in respect of that count. On 19 November 2020, Craigie SC DCJ sentenced the applicant to a Community Corrections Order (CCO) for a period of three years. The Crown appeals from that sentence.

2. [2]

   I have had the considerable benefit of reading in draft the judgment to be delivered by Adamson J. I am indebted to her Honour for the comprehensive summary of the evidence, the trial, and the sentencing proceedings, which I gratefully adopt.

3. [3]

   In respect of the appeal against conviction, I agree with the orders proposed by Adamson J, and with her Honour’s reasons.

4. [4]

   On the first ground, which contends that the conviction on the first count (oral intercourse) was inconsistent with the jury’s failure to convict on the second count (penile/vaginal intercourse), while I accept that, as Bathurst CJ envisaged in Daaboul v R, [1] there may well cases in which a jury’s conviction of an accused on one count may be irreconcilable with its failure to agree on another, this is not one of them. The conviction on the first count is reconcilable with the failure to agree on the second on the basis that while the jury was (unanimously) persuaded that the applicant had no reasonable grounds for believing that the complainant had consented when he embarked on the conduct which constituted the first count, some members of the jury may not have been have persuaded that, by the time of the conduct which constituted the second count, he had no such grounds, given the complainant’s apparently positive response to the oral intercourse.

5. [5]

   The submissions on behalf of the appellant were to the effect that the evidence was if anything stronger on the second count than on the first, because the complaints made by the complainant after she discovered that the person who had been in her bed was not her boyfriend were focussed on the penile/vaginal intercourse. Had there been an issue as to whether the oral intercourse had taken place, there might have been significance in that circumstance, although even then it is perfectly natural that the complainant would focus on what might be considered the more invasive and grave violation. But there was no dispute that the oral intercourse took place; the issues at trial were whether the complainant consented, and if not whether the appellant knew, or was reckless as to whether, she did not consent, or had no reasonable grounds to believe that she did.

6. [6]

   The conviction on the first count necessarily involves acceptance that the complainant did not in fact consent, or did so only under a mistake as to the identity of the applicant. The remaining issue was whether the applicant knew that to be so. That the central issue must have been the applicant’s state of mind is supported by the jury’s request:

7. [7]

   The focus of the complainant’s early complaints says absolutely nothing about the applicant’s state of mind – and in particular whether he lacked reasonable grounds for believing that she consented. The jury was rightly directed, in conformity with Crimes Act, s 61HA(3)(d), that (emphasis added):

8. [8]

   The absence of evidence of any step taken by the applicant in that respect provides a sound basis for a conclusion that he had no reasonable grounds for believing that there was consent.

9. [9]

   On the second ground, which contends that the verdict was unreasonable, the only basis relied on was the supposed inconsistency of the verdicts. I agree that lack of unanimity with respect to the third element of count 2 does not necessarily reflect in any way adversely on the complainant’s credibility, but appears to reflect differing views among the jurors as to the applicant’s state of mind at the time of the second act: some members of the jury may have thought that, when the applicant initiated penile/vaginal intercourse, given the greater opportunity for the complainant by then to have realised that he was not her boyfriend, and her apparently positive response to the oral stimulation, there was at least a reasonable possibility that the applicant then had reasonable grounds for believing that the complainant had consented, when such grounds had been lacking when he initiated oral intercourse without taking any steps to ascertain consent. There was, therefore, a rational basis upon which the jury could return a unanimous verdict on count 1, yet be unable to reach a unanimous, or majority, verdict on count 2.

10. [10]

    The Crown appeals against the sentence imposed on the applicant, which is contended to be inadequate.

Principles relating to Crown appeals generally

1. [11]

   The principles relevant to Crown appeals under (NSW) Criminal Appeal Act 1912, s 5D, were summarised by Hoeben CJ at CL in R v Barker, [2] as follows:

2. [12]

   As the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, the Court retains a residual discretion whether or not to interfere with an erroneously lenient sentence, [3] and the Crown must negate any reason why that residual discretion of this Court should not be exercised so as to decline to intervene. [4]

3. [13]

   The present Crown appeal invokes both aspects: the first ground contends that there was specifically identifiable error in the sentencing process; and the second contends that the sentence is so manifestly inadequate that it is “plainly unjust”.

Ground 1: alleged error in taking into account the applicant’s self-induced intoxication in mitigation

1. [14]

   In the judge’s remarks on sentencing, reference was made, on several occasions, to the applicant’s self-induced intoxication. First, his Honour’s remarks on 21 August 2020, which culminated in an order that a report be prepared for the purpose of considering the suitability of a community correction order in lieu of full-time imprisonment, included the following (emphasis added):

2. [15]

   Secondly, later on the same occasion, his Honour said:

3. [16]

   Thirdly, in his remarks on 19 November 2020, when the sentence was ultimately imposed, his Honour said:

4. [17]

   It was not the Crown’s submission that it was impermissible to have any regard to self-induced intoxication, but rather that his Honour erroneously crossed the “fine line”, referred to in Director of Public Prosecutions (NSW) v Burton (“Burton”), [5] between “[having] regard to the offender’s state of intoxication to explain what was otherwise inexplicable conduct, which may [be] permissible”, and “accepting the explanation as an excuse, in the sense of a mitigating factor”. It is therefore necessary to consider first, to what extent any use of self-induced intoxication remains permissible in sentencing; and secondly, how in fact his Honour used the applicant’s self-induced intoxication and whether it crossed that line.

5. [18]

   Crimes Act, s 428D(a), provides that except in the case of an offence of specific intent, which an offence under s 61I is not (by s 428B), the self-induced intoxication of an accused person cannot be taken into account “in determining whether the accused has the requisite mental element for the offence”. [6] Section 428D is concerned with whether the requisite mens rea for criminal liability is established; it is not concerned with nor relevant to sentencing.

6. [19]

   At the time of the commission of count 1, s 61HA relevantly provided: [7]

7. [20]

   The effect of the then s 61HA(3) was that, in determining whether the applicant knew that the complainant was not consenting, or was reckless as to whether she consented, or had no reasonable grounds for believing that she had consented, the jury (or judge in a judge-alone trial) was to treat him as if he were sober. [8] However, s 61HA(3)(e) did not require that he be sentenced on that basis, as it was directed only to the tribunal of fact deciding guilt, and not to a sentencing judge. In BP v The Queen (“BP”), [9] Johnson J, after referring to the second reading speech – which mentions only juries and judges acting in the absence of juries [10] – accepted that intoxication remained potentially relevant on sentence:

8. [21]

   Hodgson JA and Rothman J did not disagree with Johnson J in this respect. Accordingly, s 61HA(3)(e) does not, of itself, preclude consideration of self-induced intoxication by a sentencing judge: it is directed only to the trier of fact in the trial.

9. [22]

   However, BP was decided prior to the (NSW) Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, which introduced s 21A(5AA) into the (NSW) Crimes (Sentencing Procedure) Act 1999 (“Sentencing Procedure Act”), limiting the manner in which self-induced intoxication can be used in sentencing, by providing that it cannot be relied on as a mitigating factor. Subsection (5AA) must be viewed in the context of the section as a whole which, in its amended form, is as follows:

10. [23]

    For the reasons explained above, the constraint on the use of self-induced intoxication in sentencing derives solely from s 21A(5AA), and not from s 61HA(3) nor s 428D(a).

11. [24]

    In R v Alcazar, [11] Schmidt J, with whom Hoeben CJ at CL and Wilson J agreed, explained that self-induced intoxication did not reduce moral culpability:

12. [25]

    In Tepania v R, [12] Johnson J, with whom Payne JA and Simpson AJA agreed, said that sub-s (5AA) meant that it was no longer permissible for a sentencing court to have regard to intoxication for the purpose of determining the degree of deliberation involved in an offender’s breach, but acknowledged that intoxication might be explanatory, or (albeit rarely) supportive of, a submission that conduct was out of character:

13. [26]

    In Burton, Basten JA, with whom Rothman J and Cavanagh J agreed, appears to have accepted that while self-induced intoxication could not be relied on as a mitigating factor, it might be relied on to explain otherwise inexplicable conduct: [13]

14. [27]

    The principle that underlies sub-s (5AA) is that self-induced intoxication does not of itself reduce the culpability of the offender, and its intent is that a sentencing judge must not take into account as a mitigating factor the (mere) fact that the offender was intoxicated, and the effects of that intoxication on the offender’s deliberation, if the intoxication was self-induced. That is not the same thing as saying that an offender is to be sentenced on the (false) assumption that he or she was sober. In the context in which it appears, it is clear that sub-s (5AA) does not preclude any reference to self-induced intoxication; for example, it clearly does not preclude its used as an aggravating factor (as it has been suggested, at least potentially, to be in some cases [14] ). Nor, in my view, does it prevent its use to negate the existence of an aggravating factor. Subsection (5AA) does not mean that intoxication is irrelevant if it informs some other mitigating factor, such as that the offence was not part of a planned criminal activity. Nor does it preclude its use to reason that the conduct was out of character, explaining why a person of otherwise good character might have engaged in it.

15. [28]

    The first reference to intoxication in the sentencing remarks, as set out above, was in response to the Crown’s submission that the applicant had engaged in a deliberate deception of the complainant. His Honour reasoned that in deciding whether it was established that the applicant had deliberately deceived the complainant, it was relevant to consider his intoxication “in terms of explanation, as to how the offender might have truthfully believed, upon a totally unreasonable basis, that consent from this unknown form in the bed was forthcoming, and may have been mistaken …”. Recognising that it could not be treated as mitigatory, his Honour found that it was nonetheless relevant “to consideration of whether there was any deliberate deception”.

16. [29]

    In my view, that was an entirely permissible use of the applicant’s intoxication – not to mitigate his culpability, but to contribute to the conclusion that he had not practised a deliberate deception on the complainant, and thus to negate what the Crown had submitted was an aggravating factor.

17. [30]

    The second reference to intoxication, as set out above, was no more than an affirmation that the judge was not treating intoxication as a mitigating factor. His Honour was stating simply that, notwithstanding that he was satisfied that the applicant would not have offended but for his intoxication, that entitled him to no mitigation.

18. [31]

    The third reference to intoxication appears in the context of discussion of the extent to which the applicant had insight: the judge observed that there was no evidence that he was insightful as to the impact of his act upon his victim, which was to be distinguished from his insight, limited as it was, that his excessive consumption of alcohol had created a situation of risk. That does not involve any use of intoxication as a mitigating factor.

19. [32]

    The judge, of great experience in the criminal law, twice explicitly stated that he did not treat intoxication as a mitigating factor. This Court should not disbelieve the judge’s explicit statements. Moreover, close analysis of the manner in which his Honour used intoxication confirms that it was not used as a mitigating factor; it was used to negate the suggested aggravating factor of deliberate deception, and to explain the basis on which he had been convicted. His Honour did not use it to reduce moral culpability, which is how the judge in Burton had fallen into error.

20. [33]

    Accordingly, in my judgment, there was no error in the manner in which his Honour had regard to the applicant’s self-induced intoxication. I would reject ground 1.

Ground 2: alleged manifest inadequacy

1. [34]

   To sustain a claim of manifest inadequacy, the Crown is required to establish that the sentence imposed was unreasonable or plainly unjust, in an environment where there is no single correct sentence, and where sentencing judges are to be allowed as much flexibility as is consonant with the application of proper principle and consistency of approach. [15] Where specific error has not been identified, a claim of manifest inadequacy is a conclusion which does not depend on the establishment of specific error, although identification of specific error may assist to explain why a sentence is manifestly inadequate. [16]

2. [35]

   In considering whether a sentence is manifestly inadequate, this Court is not permitted to review the sentencing judge’s factual findings or assessment of objective seriousness, unless error has been shown. [17] As Simpson J (as her Honour then was) said in Mulato v R: [18]

3. [36]

   As I would reject ground 1, and as there was no challenge otherwise to the sentencing judge’s factual findings, the adequacy of the sentence is to be tested on the basis of his Honour’s findings of fact and evaluation of objective seriousness.

4. [37]

   In any event, I see no error in his Honour’s conclusion that objectively the offending “is certainly towards the lower, if not at the lowest end of an offence pursuant to the offence provisions. However, an act of opportunistic sexual offending by an offender honestly believing, upon an unreasonable foundation, that there is consent must retain a reflective level of seriousness and condemnation.” The range of conduct embraced by s 61I – in short, sexual intercourse without consent – is inherently serious. To say that conduct is at the lower end of that range does not trivialise it, but places it towards the lower end of a spectrum of serious criminal conduct.

5. [38]

   The applicant was, of course, to be sentenced only for the offence for which he was convicted (the oral intercourse), and not for that for which he was not (the penile/vaginal intercourse). This is not without significance, because while the whole course of events was undoubtedly traumatic for the complainant, as explained in her victim impact statement and referred to in the judgment of Adamson J, [19] it is also clear that her trauma was associated predominantly with the penile/vaginal intercourse, which must be disregarded for sentencing purposes. Here, the relevant physical element was an act of non-violent and non-penetrative oral intercourse that continued for a period of only about three minutes. As such, it was very much towards the lower end of the range encompassed by s 61I.

6. [39]

   As to the mental element, the judge found that the applicant honestly but entirely unreasonably believed that the complainant had consented. Accepting as I do that it was not erroneous for his Honour to have regard to the applicant’s intoxication in making that finding, no error in that conclusion has been demonstrated. Moreover, that conclusion provides the most satisfactory explanation of the jury’s verdict. Absence of reasonable grounds for believing that there was consent is the least serious of the three potential bases of liability, and, as his Honour said, “is of an inherently different kind to that, for instance, even exampled in Burton, which did not involve any colour of honest belief”.

7. [40]

   In that context, even if there were a challenge to the judge’s assessment of objective seriousness, I would be quite unable to accept the Crown submission that, in the context of the serious conduct embraced by s 61I, this offence – an act of non-violent, non-penetrative oral intercourse for three minutes, by an offender who believed albeit entirely unreasonably that the complainant had consented, is “just below mid-range”. Although the facts that the complainant was asleep, and that the applicant took no steps at all to ascertain whether she had consented, and the aggravating circumstance that the offence was committed in someone’s home (though not the victim’s), preclude a finding that it was at the lower end of the range, it fell closer to it than to the mid-range.

8. [41]

   Subjectively, the applicant had no record of previous contact with the criminal justice system of any kind; he was a person of good character; he was unlikely to re-offend; and he had good prospects of rehabilitation. After referring to evidence adduced of his good character, his Honour said (emphasis added):

9. [42]

   In the later remarks on November 2020, his Honour referred to the applicant’s “proven and not merely assumed, prior good character”, and continued:

10. [43]

    I do not agree that the applicant’s subjective case was “unremarkable”; to the contrary, there were powerful subjective factors in his favour, notwithstanding the absence of remorse.

11. [44]

    It remains the fact that the applicant, a guest in a house which was not his, entered a bedroom which was not his, found in the bed which was not his a girl he did not know and with whom he had had no previous contact, who was asleep, and presumed to embark on an act of oral intercourse with her, without taking any step whatsoever to ascertain whether she consented. The applicant’s conduct was more than, as his Honour put it, “boorish and inconsiderate in the extreme”, and “careless”; it was presumptuous and contemptuous of the complainant’s personal rights, bodily integrity, and dignity, and calls for denunciation and general deterrence. Ordinarily, it would bespeak an exploitative attitude to women which is repugnant; however, that must be viewed in the light of his Honour’s finding that what the applicant did was “entirely out of character”.

12. [45]

    His Honour concluded:

13. [46]

    As the sentencing judge observed, the options were limited: as an Intensive Correction Order is unavailable for an offence under s 61I due to Sentencing Procedure Act, s 67(1)(b), full-time imprisonment was the only available option if it were found that the threshold in s 5 of that Act had been crossed.

14. [47]

    In careful and comprehensive remarks on sentence, by a judge of great experience in the criminal law, no mistake of fact or law nor any failure to advert to a relevant consideration or taking into account of an irrelevant one has been identified. Although such circumstances do not preclude a conclusion that a sentence is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders, just as the identification of specific error may assist to explain why a sentence is manifestly inadequate, a conclusion of manifest inadequacy is not lightly to be drawn in the absence of identifiable specific error.

15. [48]

    Nonetheless, I confess that my instinctive reaction was that a full-time custodial sentence was required. Many might have imposed one, and would not have erred in doing so. However, that is not the test, which is whether the sentence was open in the context of the generous ambit of a sentencing judge’s discretion. In that respect, established patterns of sentencing provide a more reliable guide than an individual judge’s instinctive response.

16. [49]

    The Crown submitted that of 109 cases that went to trial included on the pre-reform sentencing statistics (covering the period January 2008 to 23 September 2018), the only offender to receive a non-custodial sentence was a juvenile, with the vast majority receiving full-time custodial sentences. However, there were suspended sentences in six cases. While technically a suspended sentence was regarded as a custodial sentence, in effect it involved no full-time period of custody if the conditions were not breached.

17. [50]

    Of the 47 cases that went to trial since the commencement of the sentencing reforms (covering the period 24 September 2018 to June 2019), in a context where a suspended sentence was no longer an available option, only the applicant and one other did not receive a full-time custodial sentence. The other case was Nguyen v R (“Nguyen”), [20] in which the offender, who was 19 years old at the time of the offence and 22 when sentenced, was convicted after trial of one count under s 61I for a ‘brief’ act of digital-vaginal penetration, after a house party in which the intoxicated complainant had gone to bed, after the offender had assisted her to the bathroom to vomit, before the offender entered the bedroom and committed the offence. He was sentenced on the basis that he had an unreasonable belief as to consent. He had prior good character, the offence was unplanned, he was unlikely to reoffend, it was not expected that the community needed to be protected from him, and he was a good candidate for rehabilitation. Although the charge was disputed at trial, he had expressed remorse to the victim. He was sentenced to a three year Community Corrections Order. His appeal against conviction was dismissed on 3 May 2021; in respect of the sentence this Court merely observed that “[u]nsurprisingly, there is no application for leave to appeal [by the offender] against the non-custodial sentence imposed.” [21] There was no Crown appeal.

18. [51]

    Another relevant case – not included in the statistics referred to because it was a plea of guilty – is Burton, in which the offender, who was 61 years old at the time of the offence, was the uncle of the victim, then barely 18. The offence was committed following the wedding of the offender’s son: after the reception, the offender, who was intoxicated, took the victim, who had resisted her mother’s urging to leave and was clearly heavily intoxicated, to the hotel room reserved for himself and his wife, placed her on the bed, and kissed the lips of her vagina. The offender made immediate admissions the following day, and pleaded guilty. The sentencing judge rejected the prosecutor’s submission that the offence was the culmination of a planned and predatory attack, and summarised the offending in the following terms: [22]

19. [52]

    The sentence imposed was a community correction order for a period of three years. A Crown appeal was dismissed, pursuant to the residual discretion, although it was held that the sentencing judge had erred by taking into account, as a mitigating factor, the offender’s self-induced intoxication. Although the sentence was described as lenient, it was not held to be manifestly inadequate. Basten JA said (emphasis added): [23]

20. [53]

    Rothman J agreed with Basten JA and added (emphasis added): [24]

21. [54]

    Cavanagh J agreed with Basten JA and Rothman J, adding (emphasis added): [25]

22. [55]

    Thus this Court was of the view that the non-custodial sentence was one which was open to the sentencing judge.

23. [56]

    If, as his Honour accepted in a finding which is not challenged by the Crown, the applicant’s state of mind was that of honest but unreasonable belief, that involved a lesser degree of criminality than the recklessness found in Burton. While there are differences, perhaps most notably the plea of guilty, it is difficult to reconcile the Court’s view that it was open to the judge in Burton to impose a non-custodial sentence, with a conclusion in this case that the sentence is manifestly inadequate.

24. [57]

    The sentencing patterns undoubtedly show that in the vast majority of cases under s 61I, at least where there is a plea of not guilty, a custodial sentence is imposed. However, they do not show that a sentence involving full-time custody is always called for. That ‘vast majority’ of cases is largely comprised of cases in which the offending was objectively more serious than that in Burton and Nguyen, which show that for a spontaneous unplanned non-penetrative and non-violent act of oral intercourse of short duration by an offender who (unreasonably) believes that there is consent and is of good character, unlikely to reoffend, and has good prospects for rehabilitation, a non-custodial sentence is not foreclosed.

25. [58]

    The sentence was, no doubt, a lenient – and merciful – one. However, that was a result of the assessment of the offending conduct as being towards the lower end of the relevant range, based on both its physical and mental elements, and in addition the strong positive findings made in respect of the applicant subjectively, not least that the offending was entirely out of character, by a man who had never previously offended and was never likely to do so again. I am unpersuaded that the sentence was so manifestly inadequate that it is “plainly unjust” and thereby likely to undermine public confidence in the proper administration of criminal justice.

Residual discretion

1. [59]

   Even if I were to have concluded that no sentence other than one involving fulltime custody was open, I would not in the circumstances of this case exercise the residual discretion to intervene. It seems to me that to hold that a non-custodial sentence was manifestly inadequate would involve departing from the acceptance by this Court, in Burton, that in not dissimilar circumstances, such a sentence was open. If so, that would involve establishing “a newly determined pattern”, which, as Rothman J observed in Burton, [26] ought not readily be imposed in the case in which that pattern is set,

Resentencing

1. [60]

   As I would not intervene with the sentence, no occasion to resentence arises. It suffices to say that, as I have indicated, a custodial sentence would not have been erroneous. However, in my view, a just custodial sentence would not have exceeded a non-parole period of two years, and a balance term of one year, resulting in a head sentence of three years imprisonment.

2. [61]

   I would make the following orders:

   1. (1)

      Grant leave to the applicant to appeal against his conviction.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Dismiss the appeal.

3. [62]

   FULLERTON J: I have had the advantage of reading the judgments of Brereton JA and Adamson J circulated in draft.

The appeal against conviction

1. [63]

   I note that at [3] of the judgment of Brereton JA, his Honour agreed with Adamson J that the conviction appeal should be dismissed and with her Honour’s reasons for so finding. I also agree that the appeal against conviction should be dismissed, and with her Honour’s reasons for so finding. I also agree with the orders proposed by Adamson J in the disposition of the appeal against conviction.

The Crown appeal against sentence

1. [64]

   I agree with Adamson J that the sentence appeal brought by the Crown pursuant to s 5D(1) of the Criminal Appeal Act should be allowed; that the sentence imposed in the District Court on 19 November 2020 be set aside; and that in lieu thereof the respondent be sentenced to a term of imprisonment of 5 years commencing on 7 May 2021 with a non-parole period of 3 years’ imprisonment.

2. [65]

   In light of the disagreement between their Honours both as to whether the Crown had established a discrete error in the sentencing judge’s treatment of the respondent’s intoxication for sentencing purposes, and the separate question whether the Community Corrections Order for a period of 3 years imposed by the sentencing judge was manifestly inadequate, I prefer to express my own reasons for agreeing with Adamson J that the Crown sentence appeal should be allowed and with the consequential orders her Honour proposes.

Was the sentencing judge’s treatment of the respondent’s intoxication contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act?

1. [66]

   Section 21A of the Crimes (Sentencing Procedure) Act relevantly provides:

2. [67]

   Since the passage of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 which introduced s 21A(5AA), this Court has had occasion to consider the limited circumstances in which intoxication might continue to be relevant in the exercise of the sentencing discretion.

3. [68]

   Some of those decisions were discussed by Brereton JA (see his Honour’s judgment at [24]-[26]).

4. [69]

   The settled principle that emerges from those decisions requires emphasis and, in my view, some elaboration.

5. [70]

   In the sentencing court’s assessment of an offender’s moral culpability for the offending conduct - a feature of the objective seriousness of the conduct which is fundamental to the sentencing process - the statutory prohibition in s 21A(5AA) on the offender’s self-induced intoxication being taken into account in mitigation is engaged.

6. [71]

   R v Alcazar [2017] NSWCCA 51, Tepania v R [2018] NSWCCA 247 and Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (the three cases to which Brereton JA referred) are authority for the proposition that while a sentencing court is entitled to refer to an offender’s intoxication as providing an explanation for the context in which offending occurred, it is not open to the Court to take the next step of ameliorating or reducing an offender’s culpability for the offending because of the effects of alcohol or other intoxicants, irrespective of whether those effects are disinhibiting or whether they operated to compromise an offender’s judgment or his or her assessment of the surrounding circumstances.

7. [72]

   In Burton, Basten JA (Rothman and Cavanagh JJ agreeing at [27]) observed that while it may be permissible for a sentencing judge to have regard to an offender’s state of intoxication to explain what was otherwise inexplicable conduct, a judge must not overstep the fine line between making that observation in the course of sentencing remarks, where appropriate, and treating that explanation as a mitigating factor. The Court was satisfied that the sentencing judge had erroneously treated the offender’s clouded judgment because of his self-induced intoxication as reducing his moral culpability for what was described as an impulsive, opportunistic and momentary “kissing” of the vagina of a teenage relative at the wedding of the offender’s son after she was escorted by the offender to a hotel room reserved for him and his wife because the teenager was intoxicated.

8. [73]

   As noted by Brereton JA at [28]-[31], the sentencing judge in this case referred to the respondent’s state of intoxication as informing a range of factual findings for sentencing purposes, none of which, in Brereton JA’s opinion, breached the statutory prohibition in s 21A(5AA). I respectfully disagree. I agree with Adamson J where at [225] of her Honour’s judgment she found that when assessing the objective seriousness of the respondent’s offending the sentencing judge breached the statutory prohibition in s 21A(5AA) by placing significant weight on the respondent’s intoxication, in particular by permitting that fact to inform his finding (favourable to the respondent) that he honestly, but unreasonably, believed the complainant was consenting to oral intercourse, as distinct from his being reckless as to that fact.

9. [74]

   While I am not of the view, substantially for the reasons given by Brereton JA at [18]-[23], that the sentencing judge was obliged to determine that question as if the respondent were sober at the time that he had sexual intercourse with the complainant without her consent, I am of the view that he was obliged to disregard the respondent’s intoxication entirely when enquiring into the respondent’s state of mind, awareness or perception at the time of the offending, where that enquiry was undertaken for the purposes of assessing the objective seriousness of his offending.

10. [75]

    To my mind, it is clear that factual finding, together with the further finding, also favourable to the respondent, that he would not have offended “but for” his intoxication and its impact upon his assessment of the situation, underpinned the sentencing judge’s assessment of the objective seriousness of his offending at the lower, if not at the lowest end of an offence against s 61I of the Crimes Act and that in doing so he has committed a sentencing error.

11. [76]

    I agree with Adamson J that it is not to the point that the sentencing judge made repeated reference to intoxication not operating as a factor in mitigation. Neither is it to my mind a matter of significance that the sentencing judge was not inexperienced. The question for this Court is whether, as a matter of substance, not form, the sentencing error contended for by the Crown has been demonstrated.

12. [77]

    I agree with Adamson J that a material sentencing error has been demonstrated, the effect of which allows this Court to review the sentencing judge’s factual findings, including his assessment of objective seriousness and the related assessment of the respondent’s moral culpability, before considering whether, in the Court’s residual discretion, it should intervene.

13. [78]

    I agree with Adamson J, and substantially for the reasons her Honour has identified at [238]-[242], that the objective seriousness of the offending was just below the mid-range. In agreeing with that assessment, I make the following additional observations.

14. [79]

    Whilst I agree with Brereton JA at [38] that the respondent was to be sentenced by the sentencing judge (and will be sentenced by this Court) only for the offence which attracted a verdict of guilty, I cannot agree with the views his Honour expressed in the balance of that paragraph.

15. [80]

    In my view, there is nothing in the Victim Impact Statement which would allow for a finding that the complainant’s trauma and the associated sequalae which she describes in excruciating detail “was associated predominantly with the penile/vaginal intercourse”. To the contrary. The complainant described her feeling of profound violation referable to the “night of the assault” or “the event” in a way that did not differentiate between the act of oral intercourse and the act of penile/vaginal intercourse, neither of which she consented to.

16. [81]

    Neither is it correct, in my view, to position the objective seriousness of the act of oral intercourse “towards the lower end of the range of offences encompassed by s 61I” because, as Brereton JA described it in [38], “the relevant physical element was an act of non-violent and non-penetrative oral intercourse that continued for a period of only about three minutes”.

17. [82]

    Section 61HA defines sexual intercourse, including for the purposes of s 61I, in the following way:

18. [83]

    It follows that while the act of oral intercourse (cunnilingus) did not need to include or involve a penetration of the complainant’s vagina, the absence of penetration does not support an assessment of the offence of sexual intercourse without consent as falling at the lower end of a range of seriousness (see BA v R [2015] NSWCCA 189).

19. [84]

    Furthermore, the fact that there was no actual violence perpetrated in the preparations for the act of oral intercourse or its commission is irrelevant in an assessment of the objective seriousness of the offending. Were the sentencing judge to have made reference to there being no violence inflicted on the complainant additional to the violation she was subjected to in the act of sexual intercourse in his assessment of objective seriousness, he would have committed a sentencing error by reducing the objective seriousness of the offending by reference to an impermissible factor (see R v Ngyuen [2013] NSWCCA 195). In addition, were he to have taken that approach he would have offended the principle inherent in the decision in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, albeit by taking into account as a matter of mitigation conduct which would have attracted the more serious charge of aggravated sexual assault pursuant to s 61J of the Crimes Act.

20. [85]

    To the extent that in [38] Brereton JA regarded an act of oral sexual intercourse without consent which extended over a period of “only about three minutes” as a matter weighing in favour of a diminishment in objective seriousness, I also disagree.

21. [86]

    In R v Daley [2010] NSWCCA 223 at [48] Price J (Hodgson JA and myself agreeing) said of the duration of a sexual assault:

22. [87]

    In this case, as the complainant described in her evidence, she recalled the doona being pulled away, her jumpsuit being removed and then being rolled onto her back; none of these preparations for sexual intercourse being actions she assisted with. Her legs were then “pulled apart” whereupon the respondent “instantaneously” commenced to “lick” her vagina which continued “for two or three minutes” before he immediately penetrated her vagina with his penis. While the act of oral intercourse might not be of an extended duration, it was sustained and persistent.

23. [88]

    Finally, if his Honour is to be taken as suggesting in [38] that non-consensual oral intercourse is less objectively serious, per se, than non-consensual penile/vaginal intercourse, that analysis is contrary to established sentencing principle (see R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434; R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172; R v MS [2005] NSWCCA 322).

24. [89]

    In my view, what carries predominant weight in the assessment of the objective seriousness of the respondent’s sexual offending as just below the mid-range (in addition to the matters identified by Adamson J referred to above) is the degree of deliberation involved in the commission of the offence. This was not an offence committed spontaneously or impulsively and was not, in my view, an offence that could in any sensible way be described as of limited duration. Rather, it is an offence which is more accurately described as one of rank opportunism, committed against a woman who the respondent had never spoken to beyond words of casual greeting much earlier in the night, and who he must be taken to have known was a woman who was in a sexual relationship with the person whose bed she was sleeping in and in whose home the offence was committed.

25. [90]

    I also agree with Adamson J that none of the factors relied upon by the respondent in support of his submission that the residual discretion not to intervene be exercised are persuasive. On the question of re-sentence, I endorse the views expressed by Adamson J at [255]-[260].

26. [91]

    ADAMSON J: On 19 February 2020, Matthew Fisher (the applicant) was convicted of count 1 on the indictment (sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW)), following a trial by jury. On 19 November 2020, Craigie SC DCJ imposed a sentence for count 1 of a Community Corrections Order (CCO) for a period of three years.

27. [92]

    The indictment, dated 3 February 2020, charged the applicant with two offences under s 61I of the Crimes Act as follows:

28. [93]

    The trial commenced on 4 February 2020. On 19 February 2020, the jury returned a verdict of guilty to count 1. On 21 February 2020, the jury informed the trial judge that it was unable to reach a verdict on count 2, which led to its discharge.

29. [94]

    The applicant seeks leave to appeal against his conviction for the offence on count 1 of the indictment. The grounds in respect of which leave is sought are:

30. [95]

    The Crown appeals against the sentence imposed on the following two grounds:

31. [96]

    Because of the grounds of appeal against conviction it is necessary to address, in some detail, what occurred at the trial of the applicant.

The trial

1. [97]

   The Crown case was that the complainant and the applicant were both present at a gathering at a hotel in Baulkham Hills on 25 January 2018 to celebrate the birthday of Ryan, with whom the complainant had been in a casual intimate relationship for the previous two years. When the hotel closed, a number of males, including Ryan, and the complainant went to Ryan’s house in Castle Hill.

2. [98]

   In the early hours of 26 January 2018, the complainant went to sleep in Ryan’s bedroom alone. The applicant went into the darkened bedroom where the complainant was sleeping. It was the Crown case that he committed two acts of sexual intercourse with the complainant, as charged in the indictment. It was the Crown case that the applicant did nothing to identify himself to the complainant, before or during either act of intercourse; that she consented to those acts under the mistaken impression that she was having intercourse with Ryan; and that the applicant knew she was not consenting, having consciously deceived her by entering the bedroom and failing to announce himself. It was only after the acts, as the applicant was leaving the bedroom, that the complainant could gauge his height, and realised that the man was not Ryan. She immediately messaged Ryan who returned to the house straight away.

3. [99]

   The Crown alleged that any consent on the part of the complainant was negatived because she had consented “under a mistaken belief as to the identity of the other person”: s 61HA(5)(a) of the Crimes Act which, at the relevant time, provided:

4. [100]

   Some time afterwards, when the complainant had gone to her friend Nicole’s place, police were called and forensic samples were obtained from the complainant which were consistent with the DNA of the applicant.

5. [101]

   The Crown’s case was that the applicant and the complainant had oral and penile/vaginal sexual intercourse and that the complainant had not consented to either form of intercourse. The Crown put its case on the applicant’s state of mind on three separate, and independent, bases: first, that the applicant actually knew that the complainant was not consenting; second, that the applicant was reckless as to whether she was consenting (either by failing to consider it at all, or by realising that there was a possibility that she did not consent but proceeding regardless); or thirdly, that the applicant had no reasonable grounds for believing that she consented.

6. [102]

   Mr Rowe, trial counsel for the applicant, informed the jury that the applicant did not dispute that he had sexual intercourse with the complainant (which was the subject of the first and second counts in the indictment). He identified as the critical issue whether the Crown had proved beyond reasonable doubt that the applicant knew that the complainant was not consenting.

7. [103]

   In light of the limited issues in the trial, it is not necessary to review the whole of the evidence, but only that which relates to the matters in dispute. Nonetheless, some detail is required because of the unreasonable verdict ground.

8. [104]

   The Crown called the following lay witnesses: the complainant, Nicole (a friend of the complainant), Aiden (Nicole’s boyfriend), Ryan, and various men who played Rugby League with Ryan for the Toongabbie Tigers and who were present at his birthday party, including Dave, Dean Milroy, Dean Catliffe, Robert, Jacob and Jack. Tim, a friend of Dean Milroy’s, also gave evidence that he was at the hotel with Blake and Joshua (Ryan’s housemate) and also at Ryan’s house that evening. Tim knew Ryan by his nickname, Stinger. Joshua and Blake, who were friends of Tim’s, also gave evidence. Simon, a friend of Ryan’s, also gave evidence. Simon and Ryan had played football together for a year when they were about 18. Simon knew the complainant through Ryan.

9. [105]

   The Crown also called Dr Sienna Collins, who gave evidence about the DNA found on swabs taken from the complainant.

10. [106]

    The Crown called Detective Senior Constable Hugh Thomas, the officer in charge of the investigation, to prove the provenance of photographs, films and other exhibits referred to below. He also gave evidence about the investigation of the matter. In cross-examination, he accepted that the applicant had not previously been charged with any other offence other than the subject offence and that that remained the position as at 10 February 2020.

11. [107]

    The applicant gave evidence. He was born in May 1995 and therefore was 24 years old at the date of the trial and 22 years old at the time of the alleged offences. He worked as a pool builder. He left Seven Hills High School with a School Certificate. As at 25 January 2018, he had known Ryan for about seven years through the Toongabbie Tigers Rugby League Club. He had been to his house in Castle Hill twice before.

12. [108]

    The complainant said that she had known Ryan for 10 years and that they had had an “on-again, off-again” intimate relationship for the past two years. Ryan had arranged a birthday celebration for himself at a hotel in Baulkham Hills on the evening of 25 January 2018.

13. [109]

    At 7.30am on 25 January 2018, when the complainant finished her night shift as a nurse, she returned to her parents’ house in Baulkham Hills and fell asleep on the lounge for about three hours.

14. [110]

    On the afternoon of 25 January 2018, the complainant went to Nicole’s parents’ house in Castle Hill. They were joined by Nicole’s partner, Aiden, at about 4.30pm. Between 4.30pm and 7.30pm, when they left for the hotel, the complainant consumed in the order of three Vodka Cruisers.

15. [111]

    When the complainant arrived at the hotel, she estimated that there were between 20 and 30 people there for Ryan’s birthday, some of whom she recognised. Ryan played Rugby League for the Toongabbie Tigers. The complainant recognised some of Ryan’s teammates at the hotel that night because she had previously gone to watch him play. She did not know the applicant.

16. [112]

    Dave, who also played for the Toongabbie Tigers, picked up the applicant and another team member, Dean Milroy, who all went to Ryan’s birthday gathering at the hotel. Dave recalled that they arrived at about 7.30pm.

17. [113]

    In the five hours between 7.30pm and 12.30am, while the complainant was at the hotel, she consumed in the order of 10 mixed drinks of vodka, cordial and water. Until about 11pm when Nicole and Aiden left, the complainant was with them. From time to time, Ryan approached the complainant and kissed her on the lips. In cross-examination, the complainant agreed that she and Ryan did not spend much time together that night. She explained, “[i]t was his birthday. He was talking to everyone, all over the shop.”

18. [114]

    Nicole and Aiden left together at about 11pm to return to Nicole’s parents’ place. According to Nicole, the complainant told her that she was going back to Ryan’s place after the party. Nicole’s evidence was that, before she left, she told Ryan to look after the complainant.

19. [115]

    At about 12.30am, when the hotel closed, the complainant and another man called Joshua (who was Ryan’s housemate, but not a team member) caught a taxi to Ryan’s house, which was in Castle Hill, about 10 minutes’ drive from the hotel. The complainant agreed in cross-examination that she had sent a text message to Ryan at 12.55am (although she had no particular recollection of doing so), saying words to the effect of “Everyone has left me. I don’t want to bother you but is it all right if I come back to yours and stay the night?” Ryan responded by agreeing that she could.

20. [116]

    Dave, the applicant and two other team members, Jack and Matt, caught an Uber from the hotel to Coles Express to get cigarettes and food before arriving at Ryan’s house at about 12.45am. They carried three cartons of beer into the house. Dave agreed that it was common for men who played for the Toongabbie Tigers Rugby League Club to congregate at Ryan’s house and drink substantial quantities of alcohol. He recalled at least two previous occasions when the applicant had gone into Ryan’s room after drinking too much and he had gone into the room and tried to wake him up. Ryan also recalled two previous occasions on which the applicant had passed out on the bed in his bedroom at previous gatherings. On neither such occasion had he asked Ryan’s permission to do so. The applicant gave evidence to similar effect. He said in cross-examination that on one prior occasion when he had slept on Ryan’s bed, a woman had been there.

21. [117]

    Dave noticed that there was only one woman on the premises. He did not know her but saw her on the porch, talking with Simon, when he arrived. Dave knew Simon to be a friend of Ryan’s, and Joshua.

22. [118]

    The complainant estimated that there were about 20 people at Ryan’s place, of whom she was the only female. She sat on the porch and spoke to two men, Simon and David, as well as to Ryan. She sat in the same seat for about two hours and did not even go to the toilet inside. She did not feel comfortable going inside as she did not know many of the people who were inside. From time to time Ryan would come out to the porch and kiss her on the lips. The complainant did not kiss anyone else that evening (apart from in the course of the events which are the subject of the charges). She was not in a relationship with anyone apart from Ryan at the time.

23. [119]

    Each of the Crown’s lay witnesses who attended Ryan’s place that evening, with the exception of Simon, had consumed significant quantities of alcohol. For example, Dean Milroy said that he had little recollection of the events of the evening as he had been drinking so heavily that evening (he had spent at least $200 on alcohol at the hotel). By the morning, Dave estimated that he had had about 16 or 17 beers since arriving at Ryan’s place after they had left the hotel. In cross-examination, he said that it may have been more, and that the beer was full strength. He also drank vodka.

24. [120]

    The discussion on the porch centred around football. The complainant was not “heavily involved” in those discussions and did “a lot of listening”.

25. [121]

    Dean Catliffe recalled that at some stage in the evening, he had gone to Ryan’s bedroom, where he found that Dave and the applicant were already there. Ryan subsequently joined them. Dean Catliffe and Dave left the bedroom before Ryan and the applicant left the bedroom. According to Dean Catliffe, the complainant was not in Ryan’s bedroom while they were there. Jacob had also gone into Ryan’s bedroom to charge his phone at some stage during the night and had left his phone there.

26. [122]

    The applicant gave evidence that, throughout the time he was at Ryan’s place on the night of 25-26 January 2018, he was in and out of Ryan’s bedroom “multiple times.” At times, Robert, Jacob, Ryan or Dave were in there, too, in various combinations.

27. [123]

    Several of the Crown witnesses recalled the applicant having a shower at some point in the evening. None of the witnesses recalled at what point he had had a shower. The applicant’s evidence (see below) was that he had had a shower after having intercourse with the complainant but none of the witnesses positively supported this timing.

28. [124]

    Dave observed the applicant lying in a foetal position in the shower. Dave “thought he was just drunk”. Jacob had a similar reaction. The applicant’s clothes were on the bathroom floor in a pile. Dave could not recall at what time he had made this observation. Robert also recalled that the applicant had had a shower but he was unable to say when in the course of the night that had taken place. Jacob also recalled that the applicant had a shower some time after the applicant had a nap. Jacob agreed in cross-examination that he had not seen the applicant sleeping in Ryan’s room, but that someone had told him. According to Jacob, after the applicant had had a shower “he was a lot like back to his normal self” because he had “perked up”. Ryan remembered that he was aware of the applicant having a shower but could not recall whether he had seen him in the bathroom before or after the complainant had gone to bed or whether it was before or after Ryan had left to collect more alcohol from Tim’s place.

29. [125]

    The complainant told Ryan that she wanted to go to bed at around 3am. Ryan recalled that she asked if she could sleep in his bed that night, to which he responded, “Yes, not a problem.” According to the complainant, it was not unusual for her to sleep in Ryan’s bed every weekend, or every second weekend, although the frequency of this occurring had diminished recently. She and Ryan would typically go out together with their friends and return to his house with friends and have a few drinks. She would usually go to bed earlier than Ryan would. She was usually asleep by the time he came to bed. He would come into the bedroom and undress her and they would start having sex. According to Aiden, “[the complainant] was interested in more from Ryan but he wasn’t particularly interested in a long-term relationship.” Ryan said in cross-examination that Dave was the only one of his football friends whom he had told about his physical relationship with the complainant. Although the applicant and Ryan socialised regularly in the seven years they had known each other, the applicant’s evidence was that he had never heard Ryan mention the complainant. The applicant had never known Ryan to have a girlfriend and had no idea that he was in a casual sexual relationship with the complainant.

30. [126]

    The complainant walked into Ryan’s bedroom with him but there were already two people sitting on the end of the bed. The complainant did not recognise them and went and sat in the living room for about ten minutes, playing on her phone, waiting for the bedroom to be vacant. Ryan then told her that the room was clear and that he would come back later. The complainant went, fully clothed, to the bathroom to have a shower and locked the bathroom door behind her. After her shower, she dressed in the bathroom before returning to Ryan’s bedroom. She put on the jumpsuit she had worn to the party and her underpants, but not her bra or her singlet. Once inside Ryan’s bedroom, she closed the door and went to bed.

31. [127]

    The last time the complainant consulted her watch before falling asleep, it was 3.40am. She estimated that she would have fallen asleep at about 4am, three hours after she had consumed her last drink of alcohol. She assessed her level of intoxication as four on a scale of zero to ten.

32. [128]

    At some point, Tim left the party with Blake and Joshua after he had been there for about an hour and a half. By this time he estimated he had drunk about 30 schooners of VB beer at the hotel and two Canadian Club and Dry at Ryan’s house. Ryan’s evidence was that he learned that Tim had two cases of beer at his place. Ryan offered to buy them from him so that he could bring them back to his place, as he was running out of alcohol there. Ryan decided to accompany them in the Uber to collect it.

33. [129]

    The complainant slept on her stomach with her face in the pillow. After falling asleep, the next thing she recalled was the doona being pulled off and her jumpsuit coming off her shoulders and being pulled down with her underpants. She assumed that Ryan was getting into bed with her. She did not question what was happening because it was something that occurred quite frequently; that she would go to bed before Ryan did and he would come in and they “would be intimate.” She went from her sleeping position, when she was lying on her stomach, and turned over onto her back after the person grabbed her on the hip. Nothing was said. The complainant was still sleepy.

34. [130]

    The complainant’s legs were pulled apart. She did not resist, believing the man to be Ryan. The man began licking her vagina for two to three minutes. She felt that he “spat on [her] down there”, which she thought was unusual but attributed it to Ryan’s intoxication. She was, at that time, “still really sleepy”. She was “still tired” and her arms were just down beside her. The only physical contact between her and the man in the bed was that his tongue was on her vagina. This was the conduct constituting count 1 on the indictment.

35. [131]

    In cross-examination, the complainant agreed that she had told police when she was interviewed on 26 January 2018 that she felt her jumpsuit being pulled down while she was still on her stomach and that the “person” had performed oral sex on her vagina for about one minute before pulling her arm and turning her over. The person had then continued with oral sex for about two to three minutes. She agreed that there was a “slight difference” between what she had told police and her evidence in chief. She also agreed that in her statement, which was taken by police on 27 January 2018, she had said that the person had grabbed her on the torso to turn her over.

36. [132]

    After about three minutes, the man’s body came up towards her and his penis entered her vagina and thrust back and forth. This was the first time since the man had come to bed that the complainant opened her eyes. The complainant noticed that the man’s chest was very stiff. Although he grabbed her breast with his hands, he “felt very far away from [her]”. She put her arms out to grab him to come closer so that she could give him a kiss. She detected that he was wearing a T-shirt. The kiss, which took place with lips closed, lasted for less than a second before the man pulled himself away from her again. In cross-examination, the complainant said she could not remember who had pulled away first. At that point the man got up and moved away, extracting his penis from her vagina in the process. This was the conduct constituting count 2.

37. [133]

    The complainant was concerned that the man (whom she believed to be Ryan) was behaving in a distant fashion and was concerned that they had “grown apart”. She moved towards him to give him a “bear hug” and put her head on his shoulder. The man bent forward, pulled up his shorts and walked towards the door. It was at this point that the complainant noticed that the man had no facial hair and his hair was longer than Ryan’s. She stood up and called out, “Ryan”. The man continued to walk away. The complainant called out “Ryan” again. Again, there was no answer. When the man opened the door, the light came in, which enabled the complainant to ascertain that the man with whom she had intercourse was not Ryan. She said that she would not have had sex with that man had she realised that he was not Ryan.

38. [134]

    The applicant said that, at some stage in the evening, he went into Ryan’s bedroom to have a sleep as he was feeling sick in his stomach. He did not ask Ryan before going to his bedroom for that purpose, and had done that on the two prior occasions that he had been to Ryan’s house.

39. [135]

    As he approached the room, the door was closed and the light was off. He opened the door and saw that someone was in the bed, lying on top of the sheet and under the blanket. The blanket was covering the shoulders of the person and half of the person’s head. He went to the bed and lay down on the other side of the bed on top of the covers. He was clothed at the time. The room was dark. He went to sleep.

40. [136]

    The applicant said that he was woken by the other person “spooning” and “cuddling” him. He felt her rubbing his penis with her hand on top of his shorts. He did not know who the person was and it did not cross his mind to find out.

41. [137]

    The applicant said that he turned towards the person and started to kiss her. This continued for about five minutes. She tried to put her hand in his shorts but his shorts were too tight. He tried to take his shorts off and heard the change falling out of his pocket, as well as his phone. His underpants came off with the shorts. According to the applicant, he said, “There goes thirty thousand dollars in change”, which made the woman laugh. They continued to kiss and she proceeded to play with his penis. She was fully clothed. He was trying to put his hand down her pants but he could not work out how to do it because it was “super dark”. He told her that he was going to lock the door. He got up and tried to lock the door but, when this proved impossible, he returned to the bed and found her naked. He was still wearing a black T-shirt. By this time, according to the applicant, the woman was lying on her back in the middle of the bed. He continued to kiss her and tried to “have sex with her but it wasn’t going to happen” because she “wasn’t wet at all.”

42. [138]

    The applicant’s evidence was that he decided to “give oral sex.” He said that while his mouth was on her genital area she was moaning, rubbing his hair and touching his head. After about five minutes he climbed back on top of her and proceeded to have sex by penetrating her vagina with his penis. She was moaning and kissing him “the whole time” and he was “sucking her breasts as well”. He explained that because of a basketball accident when he was young, he had several operations on his nose, which resulted in additional bone being inserted into his nose, with the consequence that his nose was “rock solid”. He said that because he and the complainant were kissing, their noses would have touched and his nose would have touched her cheek.

43. [139]

    According to the applicant, the penile/vaginal intercourse lasted for “around 20 minutes.” He did not pull away at any time. He ejaculated while pulling out of her vagina, which led to his ejaculate being caught by his hand. At no time did the woman ever give him any indication whatsoever that she did not consent to having intercourse with him. The applicant explained in cross-examination that he pulled out before he ejaculated because he wanted to avoid her becoming pregnant; the withdrawal method being one with which he was familiar from at least one prior occasion.

44. [140]

    The applicant denied the version given by the complainant when it was put to him by the Crown in cross-examination.

45. [141]

    The applicant then laid back and rolled over and sat on the edge of the bed. He contemplated what he would do with the ejaculate in his hand and he decided that he would not wipe it on the bedclothes so he put his clothes on, using both hands, which led to some spillage of his semen. He proceeded to the bathroom where he washed his hands. He then walked out to the back of the house and went to the toilet. According to the applicant, he intended to return to the bedroom to go back to sleep. When he got to the bedroom, he noticed that the light was on and the woman was crying under the blanket, which completely covered her. The applicant’s impression was that “she’d done everything possible to be fully hidden up against the wall where [the] window was.”

46. [142]

    The applicant’s evidence was that he had asked the complainant whether she was all right, to which she had responded, “Go away, fuck off.” The applicant closed the door and left the room. He went to have a shower. Initially he was standing but subsequently he sat down on the floor of the shower and leaned against the wall. He fell asleep in the shower under the running water. Someone woke him up with the news that someone had raped a girl. He got out of the shower and dressed and went out onto the porch area and sat in a chair on the porch where others were drinking.

47. [143]

    The applicant said that when Ryan asked him what had happened, he had answered that he did not know. He said that he had just been woken up and told that a girl had been raped and that it made him feel shocked and terrified. He thought that “it was better for [him] and [his] safety to just be quiet.” He denied that he “rape[d] the girl.” He explained in cross-examination:

48. [144]

    When he received the charge papers, he did not recognise the name of the complainant.

49. [145]

    The complainant described herself as going “into a state of shock and just grief” as soon as the man left the room. She went back to the bed and sent Ryan a message via Facebook at 5.35am which said, “Please come here for a second.” She then rang him and asked him if he had just come in and had sex with her. She was crying. He responded, “What the fuck is going on?” He subsequently responded that he was in Baulkham Hills but would return home. The Crown tendered the Facebook messages between them. According to Tim (who was at his home with Ryan), Ryan told those present that he had just received a message from a woman asking, “Was that you that just come in [sic] and fucked me?” Tim said to Ryan, “Well, it can’t be you mate.” Ryan immediately said, “Mate, I’ve got to go.” Tim estimated that Ryan had been there for “two drinks”, which he equated to “roughly half an hour”.

50. [146]

    After the complainant had spoken to Ryan on the phone, someone else came into the bedroom. The complainant screamed, “Fuck off, fuck off, leave me alone.” The person left and the complainant got off the bed, changed and sat against the door. She was aware of other people trying to get into the room. She continued to hold the door closed by sitting with her back against it.

51. [147]

    According to Dean Catliffe, he was looking for Ryan and had gone to Ryan’s bedroom to find him. When he went to open the bedroom door, he heard a woman’s voice, saying, “Can you fuck off?”. Robert also recalled that when he tried to open the door to the bedroom, he heard the same response.

52. [148]

    The complainant also phoned Nicole and Aiden and told Nicole that someone, who was not Ryan, had come into Ryan’s room and had sex with her. She was crying hysterically as she spoke to them.

53. [149]

    Dave recalled that, on the morning of 26 January 2018, Ryan phoned Jacob, another friend who was at Ryan’s house. Dave could hear because Jacob had put him on speaker phone. Ryan said, “What’s going on in my house?”, to which Jacob apparently responded, “What do you mean?” Ryan said, “Something’s going on in my bedroom, can you go and check?” Dave and Jacob went to Ryan’s bedroom but they could not open the door because someone was sitting behind the door. According to Dave, they heard a voice from inside the bedroom telling them to go away. Jacob gave evidence to the same effect.

54. [150]

    Nicole’s evidence was that she rang Ryan after she had spoken to the complainant and asked where he was, to which he responded that he was just walking into his house. According to Dave, when Ryan arrived, he was angry and said, “Someone’s gone in and sexually assaulted my friend.” Dave’s impression was that Ryan was shaken that this had happened in his house and that he had not been there to stop it. According to Dean Catliffe, Ryan said that “the girl” had been raped. According to Dean Catliffe, when Ryan returned, the applicant was out the front of Ryan’s house.

55. [151]

    Nicole rang the complainant back. While the complainant and Nicole were still on the phone, Ryan returned. The complainant’s phone was on speaker, which enabled Nicole to tell Ryan to bring the complainant to her place in an Uber. Dave had observed that when Ryan had first arrived home that morning, Ryan had difficulty getting into the bedroom.

56. [152]

    According to Ryan, he asked her what the person who had raped her looked like, to which she responded that she did not know because it was dark.

57. [153]

    According to the complainant, Ryan consoled her before walking with her out to the Uber, which was waiting outside. Dave, who had stayed the night at Ryan’s house, saw that the woman he had noticed the previous evening on the porch was crying as she was being taken out to the front of the house by Ryan to be put in an Uber.

58. [154]

    Ryan did not accompany the complainant to Nicole’s house in the Uber. Instead, he stayed at home with those of his friends who remained. He returned to the patio where, according to Robert, the following men were present: Robert, Dean Catliffe, Dave, Jacob and the applicant. Jack was still sleeping on the couch, where he had passed out earlier that night. Ryan said to the group of men that someone had had sex with “that girl while she was sleeping in the room.” According to Robert, each of them had denied it, including the applicant. The applicant’s denial was relied on by the Crown as evincing a consciousness of guilt. In cross-examination, Robert accepted that, because of his state of intoxication and the passage of time, he could not recall the exact words each man had used to deny having had sex with the woman in Ryan’s bedroom. According to Dean Catliffe, the applicant had said, in the course of the discussion, that he had been in Ryan’s bedroom.

59. [155]

    Jacob’s recollection was that Ryan had told the group of men who had assembled on the patio that the complainant was “gonna go to the cops”. Jacob’s evidence was that he could not remember what anyone had responded when Ryan put the allegation to them. In cross-examination, Jacob agreed that he had not told the police that Ryan had told them that the complainant was going to call the police and agreed that he did not have a recollection of Ryan saying that. According to Ryan, he asked the applicant what had happened, to which the applicant answered, “I don’t know.”

60. [156]

    According to Nicole, the trip from Ryan’s house to her house took about five minutes in a car. When the complainant arrived at Nicole’s house, she had a shower and changed into clothes which Nicole lent to her. The complainant told Nicole and Aiden what had happened (oral sex, that the man had spat on her genitals and had sex with her). Nicole called the police, who came to her house and spoke to the complainant.

61. [157]

    The complainant told police what had happened and gave them the clothing she had been wearing at the relevant time. Photographs of the clothing were tendered by the Crown. The police arranged for the complainant to go to Blacktown Hospital for forensic swabs to be obtained. After the testing had been completed, Nicole and Aiden took the complainant home to her parents’ place in Baulkham Hills. According to Nicole, the complainant told Nicole that when she had kissed the man, it felt a bit strange. Nicole accepted in cross-examination that she had told police, in her statement made on 16 September 2019:

62. [158]

    The complainant accompanied the police to Ryan’s house. He was still there at the time, although he left at 10.30am to go to an Australia Day party. The complainant and Ryan have not seen each other since, although they have been in occasional contact via text message.

63. [159]

    The Crown also tendered photographs of, and film taken at, Ryan’s house and extracts from CCTV footage which had been taken at the hotel where the birthday party had taken place that evening.

64. [160]

    The Crown called Dr Sienna Collins to establish the overwhelming probability that the DNA in the semen detected in the high vaginal swab was that of the applicant. There was no issue about this evidence or that the applicant had had penile/vaginal sexual intercourse with the complainant on 26 January 2018, as confirmed by the applicant’s trial counsel in his opening.

65. [161]

    Both the Crown and the defence made closing submissions on 12 February 2020 in accordance with the way they had opened their cases.

66. [162]

    The summing up commenced shortly after 2pm on 12 February 2020. Early in the summing up, the trial judge gave the jurors a document marked MFI9 which set out the elements of the counts on the indictment. The document identified the elements (to which there is no challenge in this Court) as follows:

67. [163]

    MFI9 also contained a direction that the jury was to disregard the effects of intoxication on the applicant. This aspect of the direction was intended to comply with s 61HA(3), which was then applicable, set out below in the context of the Crown’s appeal against sentence.

68. [164]

    In the course of the summing up, his Honour directed the jury as follows:

69. [165]

    The summing up concluded at about 11.40am on 13 February 2020 when the jury went out to consider its verdicts.

70. [166]

    On 14 February 2020, the jury continued to deliberate. However, as one juror was unavailable for Monday 17 February 2020 and Tuesday 18 February 2020, his Honour adjourned the matter to Wednesday 19 February 2020.

71. [167]

    In the morning of 19 February 2020, the jury sent a note, asking how they should proceed if they could not reach a unanimous verdict on both counts. His Honour told the jury that he could take a verdict on one of the counts if the jury was unanimous. The jury retired to further consider its verdicts at 12.15pm. During the adjournment, his Honour received further notes. One of the notes said:

72. [168]

    The trial judge brought the jury back and answered the question as follows:

73. [169]

    The jurors also asked the trial judge to explain what was meant by beyond reasonable doubt. His Honour refused to elaborate on these words, in accordance with authority: Green v The Queen (1971) 126 CLR 28 at 32-33 (Barwick CJ, McTiernan and Owen JJ agreeing); [1971] HCA 55. The jury retired to further consider its verdict at 2.14pm.

74. [170]

    A further note was received by which the jury informed the Court that they had reached a verdict in respect of count 1 but not count 2. At 3.48pm on 19 February 2020, the jury returned a verdict of guilty with respect to count 1.

75. [171]

    On 20 February 2020 the jury sent a further note asking if they could finish early for the day. The note said: “We have reached a time in discussion where we feel it would be better served if we finished for the day and return tomorrow.” The jury was sent away at 3.46pm.

76. [172]

    On Friday 21 February 2020, the jury sent a note which said:

77. [173]

    The jury returned to Court at 12.50pm, at which time his Honour informed the jury of the prospect of a majority verdict (being 11:1). His Honour questioned the foreperson who informed him that there was no prospect of reaching a unanimous verdict and no prospect of reaching a majority (11:1) verdict. Another juror was questioned, who gave answers to the same effect. The jury was discharged at 12.57pm on 21 February 2020.

78. [174]

    On 5 March 2020, the Director of Public Prosecutions directed that there be no further proceedings in respect of count 2.

The application for leave to appeal against conviction

1. [175]

   Mr Bellanto QC, who appeared with Mr Bicanic on behalf of the applicant, argued that there was an inconsistency between the verdict on count 1 and the failure to agree on count 2 because counts 1 and 2 constituted the same course of conduct and had the same elements.

2. [176]

   It was common ground that the principles which apply to the present situation are, in substance, analogous to the principles which apply where it is alleged that there is an inconsistency between verdicts: Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [248] (Bathurst CJ, Bell P and Hamill J agreeing). The focus of the appellate court, when the verdicts are alleged to be inconsistent, is upon any explanation for the acquittal. The classic statement of principle appears in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J (McClellan CJ at CL and Latham J agreeing) said:

3. [177]

   That a jury reaches a different verdict in respect of different counts, or, as in this case, returns a verdict of guilty in respect of one count and is unable to agree on another count, does not lead to any assumption of inconsistency. Where a jury is unable to agree on a verdict of guilty on a charge of a sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ).

4. [178]

   Mr Bellanto contended that the present case fell into the category of cases identified by Bathurst CJ in Daaboul v The Queen at [248] where “there was the same evidence as to the elements common to each charge and no dispute that the uncommon elements were made out.” He argued that, quite apart from the complainant’s credibility, the failure to agree on count 2 was inconsistent with the verdict of guilty on count 1.

5. [179]

   Mr Bellanto argued that it was of significance that counts 1 and 2 occurred within minutes of each other and were charged pursuant to the same offence and, accordingly, contained the same elements. It was not in dispute that the applicant had engaged in oral intercourse as well as penile/vaginal intercourse with the complainant. He contended that it was inconceivable that the jury would be satisfied of the disputed issue in relation to mistaken identity on count 1 and not on count 2.

6. [180]

   Mr Bellanto relied on the circumstance that the complainant’s evidence of complaint related almost exclusively to a complaint of penile/vaginal intercourse (count 2), while accepting that she had also told Nicole about the oral intercourse.

7. [181]

   In order to convict the applicant of count 1, the jury must have accepted the complainant's account of the circumstances in which she had oral intercourse with the applicant as honest and credible. That is, the jury must have been satisfied that the complainant, who was under the mistaken belief that the applicant was Ryan, was not in fact consenting to oral intercourse with the applicant. The jury must also have rejected the applicant’s account on the basis that it was untrue. It can be inferred from the note about the elements and the request for an explanation about the meaning of “beyond reasonable doubt” that the jury (or at least two of its members) was concerned about the applicant’s state of mind with respect to count 2.

8. [182]

   The present case appears to me to be an example of the appropriately cautious approach of the jury to the decision whether the Crown had proved element 3 of its case (which turned on its assessment of the applicant’s state of mind), with respect to count 2, beyond reasonable doubt.

9. [183]

   Although it could be said that counts 1 and 2 constituted the same course of conduct in the sense that there was no distinct temporal break between the oral intercourse and the penile/vaginal intercourse, there were, nonetheless, two distinct acts of intercourse. There had been no, or very minimal, prior contact between the applicant and the complainant before he entered Ryan’s bedroom where the complainant was sleeping. The complainant was asleep when she was woken by the applicant removing her jumpsuit and performing oral sex on her in the darkness while she was still half asleep. The applicant did not speak to her to ascertain whether she consented to sexual intercourse with him. In those circumstances, the jury can be taken to have found that the applicant knew that she did not resist sexual intercourse with him because it was satisfied of one of the following three alternatives: first, she believed he was Ryan; or, secondly, that he was reckless as to whether she was consenting in the sense that he considered she might not be consenting to sexual intercourse but he proceeded to perform oral intercourse anyway; or, thirdly, to the extent that the jury considered the applicant actually might have held a reasonable belief that she was consenting, he had no reasonable grounds for that belief. Thus, the jury could have reasoned that, in all the circumstances, the Crown had proved beyond reasonable doubt the third element of the offence and therefore returned a verdict of guilty on count 1 on that basis.

10. [184]

    However, some members of the jury might, by the time the penile/vaginal intercourse took place, have considered that the applicant might have thought that the complainant had a better opportunity to appreciate that he was not Ryan and that she was consenting to sexual intercourse despite not knowing him well, or at all. Some members of the jury may have been concerned about the possibility that, with the greater physical contact associated with his preparations for performing penile/vaginal intercourse, the applicant genuinely believed, and on reasonable grounds, that the complainant, by not objecting to sexual intercourse, was consenting to it. Other members of the jury might have considered that scenario as fanciful or having been excluded by the Crown beyond reasonable doubt.

11. [185]

    I do not regard the complaint evidence as having the significance for which Mr Bellanto contended. It was open to the jury to reason that the complainant had largely complained about penile/vaginal intercourse because she considered it to be the greater violation as it was associated with considerably higher risks (sexually transmitted illness, pregnancy) and a greater degree of intimacy. Further, it was open to the jury to find that she was plainly shocked about the whole incident and may have been inclined, when communicating with others, such as Ryan, what had happened, to limit herself to the “headline” event, which would be effective to communicate to them the reason for her evident distress and the seriousness of what had occurred.

12. [186]

    However, and more significantly, the complaint evidence related to the complainant’s credibility and had no bearing on the third element, which pertained to the applicant’s mental state. As disagreement as to whether the third element could be established beyond reasonable doubt was the obvious, if not the only, basis on which the failure to agree on count 2, notwithstanding the verdict on count 1, the complaint evidence does not bear on the question of inconsistency.

13. [187]

    The jury’s inability to reach a unanimous finding on the third element of the offence in count 2 reflects their different assessment of the circumstances affecting the applicant’s state of mind at that time. The jury’s approach to count 2 was neither inconsistent with its verdict with respect to count 1 nor was it unreasonable. As there was a rational basis upon which the jury could return a unanimous verdict on count 1, but be unable to reach a unanimous, or majority, verdict on count 2, the applicant has not made out ground one of the appeal.

14. [188]

    Although Mr Bellanto did not abandon the unreasonable verdict ground, he accepted in oral submissions that if this Court was not satisfied that there was an inconsistency between the verdict on count 1 and the failure to agree on count 2, ground 2 had no separate life or effect. This concession enables ground 2 to be addressed relatively briefly.

15. [189]

    This Court, in determining the unreasonable verdict ground, is obliged to make its own assessment of all of the evidence to determine whether it was open to the jury to be satisfied of the applicant’s guilt on count 1 beyond reasonable doubt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

16. [190]

    In M v The Queen at 493, the High Court said, in answering this question:

17. [191]

    As with ground 1, in his submissions on ground 2, Mr Bellanto placed significant weight on the alleged disparity between the complaint evidence with respect to count 1 (which was not mentioned specifically to Ryan, although she told Nicole) and that with respect to count 2.

18. [192]

    He also contended that there “was nothing in the evidence that would provide an avenue for the jury to be satisfied of the disputed elements in relation to count 1, yet not be satisfied of the disputed elements in relation to count 2 and submitted that the result “smacks of compromise” (citing Daaboul at [245], which cited Crofts v R [2018] VSCA 197 at [48] (Priest JA)).

19. [193]

    Mr Bellanto submitted that “[n]otwithstanding the jury’s apparent ‘belief’ in the complainant’s version in relation to count 1, very little or no weight can be placed on the jury’s guilty verdict given the irreconcilability of the guilty verdict and the failure to agree.”

20. [194]

    For the reasons given above, I do not regard this alleged distinction in the quality of the complaint evidence with respect to the conduct alleged in count 1 and the conduct alleged in count 2 as other than specious in the context of the circumstances in which the two forms of sexual intercourse took place. Further, as explained above, the quality of the complaint evidence can have no bearing on the third element, which pertained exclusively to the applicant’s state of mind.

21. [195]

    The jury’s verdict with respect to count 1 showed that the jury accepted the complainant’s version of what occurred and rejected the applicant’s evidence. As referred to above, the difference is explicable on the basis of the third element, about which the jury must have been satisfied with respect to count 1. A lack of unanimity with respect to the third element of count 2 does not necessarily reflect in any way adversely on the complainant’s credibility. Rather, it would appear to constitute a reflection of the different views of the jurors about the applicant’s state of mind. It was open to at least some members of the jury (and two would have been all that was required to lead to the jury being hung) to consider that there was a non-fanciful possibility that the applicant’s state of mind had changed between the time he performed oral intercourse on the complainant and the time he engaged in penile/vaginal intercourse with her.

22. [196]

    I have endeavoured, in the above narrative, to summarise the significant evidence which was before the jury, all of which is relevant to ground 2. Having read the transcript and read and viewed and listened to (where applicable) the exhibits, I am satisfied that it was open to the jury to return a verdict of guilty on count 1, notwithstanding its failure to agree on count 2.

23. [197]

    For the reasons given above, I propose that leave to appeal against conviction be granted, but that the appeal be dismissed.

The Crown appeal against sentence

1. [198]

   As referred to above, the Crown, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) appeals against the sentence on two grounds. Before turning to the grounds, I propose to summarise what occurred in the course of the sentence proceedings.

2. [199]

   Mr Rowe, trial counsel for the applicant, submitted that it was for the sentencing judge to make a factual finding, consistent with the jury's verdict, as to the basis upon which the Crown had proved beyond reasonable doubt that the complainant was not consenting to oral intercourse. Mr Rowe submitted that the applicant should be sentenced on the basis that he honestly believed the complainant was consenting but that such belief was not supported on reasonable grounds. He submitted that this finding was consistent with the applicant’s conduct in returning to the bedroom after using the toilet and asking the complainant what was wrong when he discovered that she was crying.

3. [200]

   Mr Rowe argued that the applicant acted spontaneously with an honest belief that the complainant was consenting. He further submitted that the offence did not involve any coercion, threats, use of force or degrading conduct and that the oral intercourse was of short duration, lasting for two or three minutes. He contended that the offence was at the “very low end of the range of objective seriousness”.

4. [201]

   Mr Rowe relied on the applicant’s good work history, his good character, his family situation (engaged with three young children) and lack of prior criminal record. He submitted that his risk of re-offending was “extremely low”.

5. [202]

   Mr Rowe submitted that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) had not been crossed (that no sentence other than imprisonment was appropriate) and that a lengthy CCO, conditional on community service work, would be appropriate.

6. [203]

   The Crown provided written submissions on sentence. In its written submissions, the Crown submitted that the only appropriate penalty was one of full-time imprisonment. The Crown relied on the following matters as being germane to objective seriousness:

7. [204]

   The Crown submitted that an Intensive Corrections Order (ICO) was not available because of the prohibition in s 67 of the Act, which applied as the subject offence was a “prescribed sexual offence”. The Crown further submitted that a CCO was not appropriate. It also noted that there had been no sentence assessment report requested and that, by reason of s 89(4) of the Act, the condition could not be imposed without such an assessment. The Crown referred to Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (Burton), a case in which this Court was satisfied that error was demonstrated in the sentencing exercise (because the sentencing judge erroneously took into account self-induced intoxication).

8. [205]

   The Crown submitted that the licking of the complainant’s vagina, with a spitting action, could be regarded as humiliating and intrusive. The Crown also relied on the applicant’s failure to speak before or during intercourse or respond to her inquiry after intercourse, the complainant’s initial unconsciousness and subsequent drowsiness, and the darkened room as being factors which minimised the chances of the applicant being revealed as a relative stranger to the complainant. The Crown submitted that these matters made the offence serious. Although there was neither violence, nor threats of violence, the conduct constituted a grave violation of the complainant’s physical integrity which had been achieved through deception. Indeed, the Crown argued that, had there been violence, the complainant would have known that her assailant was not Ryan. The Crown submitted that the objective seriousness of the offending was “below mid-range but … not at the very low or lowest end of the range”.

9. [206]

   The Crown tendered the indictment, the applicant’s criminal history (which revealed that he had no prior criminal history), the complainant’s victim impact statement and a document setting out the Corrective Services response to COVID-19 (current as at 20 April 2020).

10. [207]

    In her victim impact statement, the complainant said that, as at 25 January 2018, was 28 years old and working as a nurse in a drug and alcohol detox ward, helping people with addiction, mental health problems and also victims of sexual crimes. The applicant’s criminal conduct had such an impact on her that she eventually gave up work and had not, as at 2 April 2020 (the date of the victim impact statement) been able to return to her former employment. She found it very traumatic to return to the Hills District but she did so because her parents lived there and her father was terminally ill (he had died before the sentence hearing). She has considered suicide on several occasions. She said, by way of conclusion:

11. [208]

    The applicant did not give evidence on sentence. He adduced character evidence from Rachelle Crisp, the widow of his former employer who was also associated with the Toongabbie Tigers Rugby League Club. She described the applicant as “very respectful” towards women. The applicant had constructed a pool for Ms Crisp’s family after her husband had died. Ms Crisp gave evidence that the applicant has been in a relationship with his current partner for 10 years and that they have had three children together. As at 5 June 2020, the eldest was 4, the second child was 20 months old and the youngest was born just before Christmas in 2019. Ms Crisp said she was shocked to hear about the offence and said that she regarded it as out of character for the applicant and not consistent with the man she knew.

12. [209]

    In the sentencing judge’s reasons for decision, delivered on 21 August 2020, his Honour addressed the findings to be made as to the applicant’s state of mind. His Honour referred to the applicant’s evidence that, after briefly leaving the bedroom to go to the toilet, he had returned and found the complainant under the doona, apparently weeping. His Honour found that, as the complainant had not actually denied that he had returned (since she was under the doona at the time), his version had not been excluded beyond reasonable doubt. His Honour rejected the Crown’s submission at the sentence hearing that the jury, in convicting the applicant of count 1, had rejected his evidence in total as being lacking in credit. His Honour said that he was “unable to find beyond reasonable doubt that the [applicant] did not re-enter the room.” His Honour also found it “more probable than not, in light of no categorical rejection by the complainant, that “something may have been said by the offender on his re-entry by way of making some inquiry of the complainant.”

13. [210]

    His Honour continued:

14. [211]

    The sentencing judge returned to the Crown’s submission that there had been deliberate deception by the applicant. The following passage is relied on as the basis for ground 1 of the Crown’s appeal against sentence:

15. [212]

    His Honour then proceeded to assess the objective seriousness of the applicant’s offending on the basis of the findings his Honour had made (that the applicant honestly but unreasonably believed that the complainant was consenting). His Honour found that:

16. [213]

    The sentencing judge referred to the applicant’s subjective circumstances before addressing the threshold in s 5 of the Act. His Honour referred to Burton, in which this Court dismissed a Crown appeal against sentence, although it found error as the sentencing judge had taken alcohol into account as a mitigating factor. His Honour sought to distinguish Burton on the basis that it entailed a “deliberate act of non-consensual intercourse … upon an intoxicated 18 year old at a wedding by her maternal uncle, who was also intoxicated”, as opposed to the present case, which his Honour said gave rise to the question of “honestly held belief.”

17. [214]

    His Honour said further:

18. [215]

    The sentencing judge ordered that a report be prepared for the purpose of considering the suitability of a CCO, in lieu of full-time imprisonment: s 17C(1)(a) and (b)(i) of the Act.

19. [216]

    On 23 October 2020, the Crown tendered the Sentencing Assessment Report of Nicolle Griffin dated 21 October 2020 which had been prepared pursuant to the order made by his Honour on 21 August 2020. Ms Griffith recorded that the applicant lived with his partner of 10 years and their three children and was employed as a subcontractor in the construction industry. She recorded that the applicant considered that the acts which constituted the offence were “of a consensual nature” and “therefore he does not feel that he has impacted the life of the victim.” She assessed the applicant as being at low risk of re-offending. She also assessed him as being suitable to undertake community service work and said that Community Corrections could provide up to 21 hours of work per month.

20. [217]

    His Honour invited the parties to address him on the appropriate sentence. Brief submissions were made. The Crown submitted that a CCO “would not be within range.” Mr Rowe submitted that it would be appropriate. His Honour stood the matter over for sentence to 19 November 2020.

21. [218]

    In his reasons for sentence delivered on 19 November 2020, his Honour reiterated the main findings from the reasons which had been given on 21 August 2020. His Honour noted that the applicant was conscious of the effect of his conduct on his own family but lacked insight as to its impact on the complainant. His Honour accepted that “not inconsiderable harm, particularly in terms of humiliation and an inherent violation of her person was done to the victim”, based on the victim impact statement which showed that “real harm [had] been done.”

22. [219]

    His Honour concluded that the threshold in s 5 of the Act had not been crossed and imposed a CCO for a period of three years.

23. [220]

    Before addressing ground 1, it is necessary to have regard to the statutory provisions which were relevant to self-inducted intoxication which applied at the time of the offending.

24. [221]

    Part 11A of the Crimes Act makes provision for intoxication. As an offence under s 61I is not an offence of specific intent (s 428B), self-induced intoxication of an accused person cannot be taken into account in determining whether the accused has the requisite mental element for the offence: see s 428D(a) of the Crimes Act and the cases cited in Day v R [2017] NSWCCA 192 at [34] (Johnson J, Rothman and Lonergan JJ agreeing).

25. [222]

    At the time of the commission of count 1, s 61HA relevantly provided:

26. [223]

    On sentencing, s 21A of the Act relevantly provides:

27. [224]

    The effect of the then s 61HA(3)(e) of the Crimes Act was that the jury was required to treat the applicant as if he were sober: Day v R at [36] and [41].

28. [225]

    It can be seen from the statutory provisions set out above that self-induced intoxication cannot be taken into account either on the question of the applicant’s knowledge of whether the complainant consented or as a mitigating factor on sentence. It follows that the applicant’s self-induced intoxication could not be taken into account by the sentencing judge to explain his behaviour, where such explanation had the effect of minimising his moral culpability. In the present case, his Honour was careful to state that he had not taken the applicant’s self-induced intoxication into account as a mitigating factor on sentence. Nonetheless, his Honour had expressly taken it into account in determining, first, whether there was deliberate deception; and, secondly, whether the applicant actually knew that the complainant was not consenting (or whether he was reckless or honestly, but unreasonably, believed that she was consenting). For the reasons given below, this approach was erroneous and undermines the sentencing judge’s findings of fact as well as his Honour’s assessment of objective seriousness.

29. [226]

    There are two main aspects to sentencing. First, the sentencing judge is obliged to find the facts of what occurred in a manner which is consistent with the jury’s verdict: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [4]-[10] and [14] (Gleeson CJ, Gummow and Hayne JJ, citing with approval, R v Isaacs (1997) 41 NSWLR 374 at 377-378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). As the plurality explained at [10] in Cheung, “a guilty verdict may leave unresolved large questions as to the degree of culpability.” These questions “fall to be decided by the sentencing judge, who may receive little assistance from the need for consistency with the jury’s verdict.”

30. [227]

    Secondly, the sentencing judge is obliged to weigh up the relevant factors to determine, by instinctive synthesis, the appropriate sentence.

31. [228]

    The statutory provisions referred to above make it clear that the effect of the applicant’s self-induced intoxication must be excluded as a mitigating factor on sentence (s 21A(5AA) of the Act).

32. [229]

    I reject Mr Bellanto’s submission that his Honour’s statement that he had not taken the applicant’s self-induced intoxication into account in mitigation was effective to cure the error of using it to “explain” the applicant’s conduct. This Court is obliged to assess the substance of what his Honour did and is not bound by the form of the judgment. Although the sentencing judge said that he had not taken the applicant’s self-induced intoxication into account, it is plain that his Honour took it into account (favourably to the applicant) by way of “explanation” for his conduct, which not only led to his Honour’s rejection of the Crown case that the applicant had deliberately deceived the complainant but also led to the finding that the applicant honestly, but unreasonably, believed that the complainant was consenting.

33. [230]

    It is not necessary to decide whether the trial judge becomes “the trier of fact” within the meaning of s 61HA(3)(e) of the Crimes Act for the purposes of sentencing, since s 21A(5AA) of the Act prohibits reasoning which takes into account self-induced intoxication in mitigation in the sentencing exercise.

34. [231]

    Mr Bellanto’s submission that self-induced intoxication made no difference because if there were no reasonable grounds for an intoxicated applicant to believe that the complainant had consented, there could have been no reasonable grounds for the applicant, had he been sober, to have believed that she consented, must also be rejected. The fact of intoxication led his Honour to make a finding in accordance with the least serious of the three alternatives as to his state of mind when committing count 1.

35. [232]

    The effect of the error, as the Crown contended orally, was to impugn the sentencing discretion (which, accordingly, must be re-exercised by this Court in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 if this Court decides not to exercise the residual discretion to decline to intervene). The error also affected the facts as found by his Honour as well as the assessment of objective seriousness which was predicated on those facts. This Court is not permitted to review the sentencing judge’s factual findings or assessment of objective seriousness unless error has been shown (AB v R [2014] NSWCCA 339 at [44], [50], [59] (Simpson J, Meagher JA and Wilson J agreeing). The Crown has, in the present case, identified an error which requires this Court to review the sentencing judge’s assessment of the facts and the objective seriousness on the correct basis: cf. Mulato v R [2006] NSWCCA 282 at [46] (Simpson J). These matters will be addressed below.

36. [233]

    For the reasons given above, I am satisfied that ground 1 has been made out.

37. [234]

    This Court will generally refuse to intervene in a Crown appeal unless it is satisfied that the sentence is manifestly inadequate. In these circumstances, it is necessary to address ground 2.

38. [235]

    For the reasons given above, the factual findings made by his Honour, and the consequential assessment of objective seriousness, were erroneous. It is, accordingly, necessary for this Court to revisit these findings and this assessment since, otherwise, the adequacy of the sentence imposed by the sentencing judge would be tested on a flawed basis.

39. [236]

    In the present case, the applicant gave sworn evidence at trial but did not give evidence at the sentence hearing. The account he gave at trial, as to proof of the third (disputed) element of count 1, must have been rejected by the jury as not reasonably possible. It follows that the jury must have accepted the complainant’s evidence as the circumstances in which she consented to oral intercourse namely that she mistakenly believed that the man performing oral intercourse was Ryan, a person well known to her as a sexual partner and in whose bed she was sleeping. Thus, the applicant’s version that the complainant initiated the sexual contact must, in the circumstances, be rejected as a lie. The applicant’s evidence at trial was, relevantly, false, on count 1 and can therefore be disregarded, except in so far as it constitutes a statement against interest and, therefore, an admission.

40. [237]

    Like his Honour, this Court is obliged to have regard to all the circumstances that inform the sentencing exercise, except, the applicant’s self-induced intoxication. The applicant is, as this Court explained in Day v R, to be treated as if he were sober.

41. [238]

    The complainant’s evidence was that she was asleep when someone came into the room and removed her jumpsuit. She was still sleepy when the person pulled her legs apart and she did not resist because she thought the person was Ryan. I am satisfied from the evidence that the applicant knew that the complainant was asleep at the outset and, throughout the oral intercourse, at best, half-awake. Consent in s 61HA(2) was defined as meaning free and voluntary agreement to sexual intercourse. The applicant took no steps whatsoever to ascertain whether the complainant freely and voluntarily agreed to the intercourse. He did not speak to her or rouse her. The only physical contact between them was directed to his aim of having intercourse with her. When the applicant investigated the state of the complainant’s genitals, he discovered that they were insufficiently moist to permit penile/vaginal intercourse. He spat on her genitals to lubricate them and performed oral intercourse to further moisten them for that purpose.

42. [239]

    The present case is not one where the applicant’s evidence as to the physical facts aligned with the complainant’s and the issue was what was in his mind as to her attitude to consent to sexual intercourse. It is a case where the applicant’s version was in stark contrast with the complainant’s since, on his version, it was the complainant who had initiated the sexual contact. The applicant’s version was entirely self-serving and included evidence that, after he had been to the toilet following the two forms of sexual intercourse with the complainant, he had returned to the bedroom to enquire as to the complainant’s welfare. Unlike his Honour, I do not accept this evidence. I regard it as yet another self-serving statement made by the applicant which was designed to minimise his moral culpability. Any uncertainty expressed by the complainant in her evidence about the identity of those men who came to the door and tried to get in does not make it more likely that it was the applicant who came in rather than one of the other men who had been sent by Ryan to check on her after she had messaged him for help.

43. [240]

    It is also significant that the applicant expressly denied that he had had intercourse with the applicant at all, when asked directly by Ryan shortly after the event. I am satisfied that he denied the intercourse by reason of a consciousness of guilt because he actually knew that the complainant had not consented. At the time of this (false) denial the applicant was well aware of the following five matters: first, the complainant was asleep when he entered the bedroom and when he undressed her; second, at no time had he asked her whether she was willing to have sex with him; third, he had deliberately sought to physically keep his distance from the complainant during intercourse lest she realise that he was not Ryan; fourth, neither before nor during sexual intercourse, did she give any indication that she knew who he was; and, fifth, that he had performed oral intercourse without her consent.

44. [241]

    Although it is possible that the applicant actively waited until Ryan had left with Tim and the others to collect further alcohol to bring back to the party before he went into the room to have intercourse with the complainant, I do not consider that the evidence is sufficiently strong to make this finding. Applying the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, I consider that the applicant came into the bedroom, not knowing that he would find the complainant sleeping there. When he discovered that she was there, he decided to exploit her vulnerability. She was asleep and there was, at least from the applicant’s point of view, a possibility that she would be affected by alcohol. He knew that she did not voluntarily and freely agree to oral intercourse because, at the outset, she was asleep and he had taken no steps to ascertain whether she consented.

45. [242]

    These findings affect the objective seriousness of count 1. To initiate sexual intercourse with a stranger who is asleep is a particularly serious violation. The complainant, who was unconscious, having fallen asleep, fully clothed, in a bed with the permission of its owner, was particularly vulnerable. I accept the Crown’s submission that the objective seriousness of count 1 is just below mid-range. Although there were no threats of violence, there did not need to be because the complainant, being unconscious at the outset, was in no position to resist or defend herself. The oral intercourse was particularly exploitative since its evident purpose was to prepare the complainant’s body for the penile/vaginal intercourse which the applicant wanted.

46. [243]

    Whether the sentence imposed is inadequate does not require the demonstration of patent error since inadequacy, like excess, is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). The sentence imposed by his Honour required the applicant to do little more than perform service in the community where he was otherwise at liberty. The Crown relied on statistics which demonstrated the rarity of non-custodial sentences being imposed for such an offence.

47. [244]

    Having regard to the seriousness of count 1 and the lack of mitigating factors or countervailing subjective circumstances, I am satisfied that the imposition of a CCO in the present case was manifestly inadequate. The circumstances in which the offence was committed, the gross violation of the complainant’s body which it entailed and the lack of mitigating factors required that a custodial sentence be imposed to reflect the objective seriousness of the offence and to fulfil the sentencing purposes of denunciation, punishment and specific and general deterrence. The sentence imposed by his Honour was, in my view, plainly unjust and unreasonable (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

48. [245]

    The applicant relied on a notice of contention (although none was filed) in which he contended that the sentencing judge erred in applying a test of “exceptional” or “wholly exceptional” circumstances as the only basis for a non-custodial sentence for an offence of sexual assault simpliciter. I am not persuaded that it is necessary to address this contention. For the reasons given above, his Honour’s error as to the relevance of self-induced intoxication vitiated not only the sentencing discretion but also the fact-finding exercise which is required of a sentencing judge. It is not necessary, in these circumstances to address any other statements made by his Honour since, if the residual discretion ought not be exercised, this Court would be obliged to sentence the applicant afresh.

49. [246]

    Before relief can be granted in this Court for established error, the Crown must also satisfy this Court that the residual discretion to decline to intervene ought not be exercised in the present case: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ).

50. [247]

    The applicant relied on the following four factors in support of his submission that the residual discretion not to intervene ought be exercised:

    1. (1)

       the applicant was sentenced on 19 November 2020 and has commenced community service pursuant to the order made by the sentencing judge;

    2. (2)

       he has been subjected to “dread linked to the prospect of entering full-time custody” after having been found guilty and sentenced to a non-custodial sentence;

    3. (3)

       the matters relied on in support of groufnd 2 are, in substance, matters of weight and therefore do not warrant appellate intervention; and

    4. (4)

       “a newly determined pattern” ought not readily be imposed on the applicant: Burton at [62] (Rothman J).

51. [248]

    It was not suggested on behalf of the applicant (the respondent to the Crown appeal) that there was any unavoidable delay. The applicant was notified that the Crown would be considering an appeal before the sentence was imposed (the possibility of a CCO having been evident from his Honour’s order for a report for the purpose of determining the applicant’s suitability for community service). The sentence was imposed on 19 November 2020. The notice of appeal was filed and served 4 weeks after the final proceedings and the appeal was listed for hearing less than 3 months from the date of the notice and heard together with the applicant’s application for leave to appeal against conviction.

52. [249]

    At the sentence hearing, the Crown submitted that a full-time custodial sentence was required and that a CCO would be inappropriate and not within range. Accordingly, the Crown did not contribute in any way to the sentence that was imposed. Indeed, the Crown tried to dissuade his Honour from imposing such a sentence.

53. [250]

    I accept that the applicant has been subjected to the possibility that he will be taken into custody. That remained a possibility following his sentence. The Crown notified him of the prospect of an appeal before the non-custodial sentence was imposed.

54. [251]

    For the reasons given above, I accept the Crown’s submission that the sentence imposed was so manifestly inadequate that it fell far short of community standards as well as being inconsistent with the need for denunciation of sexual assault and general deterrence. I reject the applicant’s submission that the matters relied on in ground 2 are matters of weight.

55. [252]

    I do not accept Mr Bellanto’s submission that any new pattern or guideline has been established by the present case. For an offence under s 61I of the Crimes Act, the maximum penalty has been 14 years’ imprisonment and the standard non-parole period has been 7 years’ imprisonment for a considerable period. The provisions making self-induced intoxication irrelevant to the state of mind of an accused in relation to consent and unavailable in mitigation of sentence, likewise, are of long-standing (for example, s 21A(5AA) was inserted into the Act by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)). The sentence sought to be challenged in the present case is aberrant because of its manifest inadequacy. This conclusion does not reflect any particular change in community standards.

56. [253]

    I am persuaded by the Crown that the residual discretion to decline to intervene ought not be exercised in the present case and that this Court ought allow the appeal and proceed to re-sentence the applicant.

57. [254]

    Since writing these reasons I have read the reasons of Brereton JA in draft. The significant difference between my views and those of his Honour are apparent from our respective reasons.

Re-sentence

1. [255]

   The sentence imposed must reflect the purposes of sentencing in s 3A of the Act. Denunciation, punishment and specific deterrence are all of importance. General deterrence is also highly significant in a case such as the present. The sentence imposed must indicate to the community at large the seriousness of sexual assault on a sleeping woman who is a stranger to her assailant. Excessive use of alcohol by a sexual offender will not mitigate the objective seriousness of non-consensual sexual intercourse against a vulnerable complainant. The consequences for the complainant were devastating and enduring. Further, even where an offender can otherwise claim good character to support the associated submission that he is unlikely to reoffend, a penalty of full-time custody, after trial, will ordinarily be imposed to reflect the gravity of the offending, having regard to the standard non-parole of 7 years’ imprisonment and the maximum penalty of 14 years’ imprisonment.

2. [256]

   The offence was aggravated because it was committed in Ryan’s home (s 21A(2)(eb) of the Act). It is necessary, when assessing the harm, to excise any harm consequent upon the events that were the subject of count 2. However, with due allowance for that matter, I am satisfied that the emotional harm suffered by the complainant as a consequence of count 1 was “substantial” for the purposes of s 21A(2)(g) of the Act. Prior to the offending conduct, the complainant was pursuing her chosen career of nursing in a way which gave her a sense of purpose and satisfaction. As a result of the offending conduct, she ultimately left nursing. Prior to the offending, the complainant enjoyed coming home to the Hills District to see her parents. As a consequence of the offending, the complainant suffered whenever she went home because of the association between the area where her parents live and the offending conduct. She experiences significant suicidal thoughts and, at times, has seen suicide as the only way of finding “peace”.

3. [257]

   While the applicant was entitled to maintain his innocence, and this cannot be an aggravating factor, he showed neither remorse nor contrition. He denied the intercourse when questioned by Ryan. But for the DNA testing which identified him as the person who had had intercourse with the complainant, he may well have not been charged.

4. [258]

   The offender is entitled to have his good character and lack of prior criminal history taken into account in his favour. He is not entitled to leniency on the ground of youth as he was 22 years old at the time of the offending. He had been in a permanent relationship for several years and already had one child, and his partner was expecting a second. He is now 25 years old. He and his partner now have three children. Mr Bellanto informed the Court that he had completed 50 hours and 20 minutes of community service pursuant to the CCO made by his Honour on 19 November 2020.

5. [259]

   Although Mr Bellanto referred to the applicant’s personal circumstances, there was no evidence as to how the applicant’s family would support themselves if the applicant were taken into custody and therefore no evidence of particular hardship (beyond the hardship which one would infer).

6. [260]

   As this will be the first time the applicant is in custody, I consider that it is appropriate to find special circumstances and adjust the statutory ratio between the non-parole period and the total term accordingly.

7. [261]

   I propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal against his conviction.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Set aside the sentence imposed by Craigie SC DCJ on 19 November 2020 and, in lieu thereof, sentence the respondent, Matthew Fisher, to a term of imprisonment of 5 years commencing on 7 May 2021 and expiring on 6 May 2026 with a non-parole period of 3 years’ imprisonment and a balance of term of 2 years.

   5. (5)

      The first day on which the respondent will be eligible for release to parole will be 6 May 2024.