Cordeiro v R

1. [1]

   SIMPSON AJA: On 19 October 2017, following a jury trial, the applicant was convicted of a single count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). On 15 December 2017 he was sentenced to imprisonment for 3 years and 6 months, commencing on that day, with a non-parole period of 2 years and 3 months, which will expire on 14 March 2020.

2. [2]

   The applicant now seeks leave to appeal against both the conviction and sentence. He needs leave to appeal against conviction because the sole ground on which he relies is that the verdict of the jury was unreasonable and could not be supported on the evidence. Since that is a ground that raises a question of fact alone, or, at best, a question of mixed fact and law, leave is required: Criminal Appeal Act 1912 (NSW), s 5(1)(b).

3. [3]

   The applicant also requires an extension of time in which to make his applications. The Crown does not oppose the grant of an extension of time and an order to that effect should be made.

Background

1. [4]

   The Crown case may be stated, briefly, as follows. It will be necessary to consider the evidence in more detail below.

2. [5]

   The applicant was the owner and operator of a boat charter business which chartered boats for pleasure cruises on and around Sydney Harbour. One of the boats owned by the business was Prometheus.

3. [6]

   In 2015 the complainant was a student at a Sydney university. She was employed by the applicant’s business on a casual basis as a hostess. Her duties included serving food and drinks to guests on the cruises, and, when called upon to do so, to act as deckhand.

4. [7]

   On 17 October 2015 the complainant was engaged to work on Prometheus from 10:15am to 11:00pm. A first cruise was completed uneventfully, with the applicant on board, and a second party boarded. The applicant appears to have passed his duties to others and joined the party. He invited the complainant also to join the party, an invitation she accepted. The applicant offered the complainant drugs which she declined. He offered her alcohol, but gave her a drink which she considered to contain an excessive amount of alcohol. At a point in the evening (or the early hours of the following morning) the applicant and the complainant were alone in a bedroom on the lower deck of the boat. After having a drink, the complainant went to sleep. During the time she was asleep the applicant sexually assaulted her by digital penetration of her vagina. The complainant was unaware that this had happened until the following morning when she became aware of it, in circumstances later to be recounted.

5. [8]

   That the applicant had digitally penetrated the complainant was not, in the trial, disputed, although when first asked by the complainant the following morning, about what had happened, he denied having done anything to her. At trial, the applicant gave evidence that the sexual contact had been consensual.

The relevant legislation

1. [9]

   The applicable legislation is contained in Pt 3, Div 10 of the Crimes Act. At that time of the events in question the relevant provisions were s 61H and s 61HA. Since that time, by reason of amendment to the Crimes Act, the relevant provisions have been renumbered, so that what was contained in s 61H is now contained in s 61HA, and what was contained in s 61HA is now contained in s 61HE. There is no material difference in the content of the provisions. What is set out below is the relevant legislation as it existed as at 17 October 2015.

2. [10]

   As indicated above, the applicant was charged with an offence against s 61I of the Crimes Act, which is in the following terms:

3. [11]

   There are thus three elements to a charge under s 61I. They are:

4. [12]

   Section 61HA (which, by subs (1), was expressed to apply to offences against s 61I) relevantly provided:

The trial

1. [13]

   The trial commenced on 4 October 2017 in the District Court. The applicant was represented by senior and junior counsel.

2. [14]

   The Crown prosecutor opened. She explained (as recorded in the transcript) that the Crown case was put as follows:

3. [15]

   From this passage, it may be seen that the Crown prosecutor was directing attention to the second and third elements of a s 61I offence, and signalling that the Crown case was that the complainant lacked the capacity to consent, whether by reason of unconsciousness (s 61HA(4)(b)) or intoxication by alcohol or drug consumption (s 61HA(6)(a)), and that the applicant actually knew of that incapacity and therefore that she did not consent (s 61HA(3)(a)), or that he was reckless as to whether the complainant consented (s 61HA(3)(b)).

4. [16]

   In her closing address, on 17 October 2017, the Crown prosecutor took a more refined approach. She said:

The evidence given in the trial

1. [17]

   Having regard to the issues raised on the appeal, it is necessary to set out the complainant’s evidence at some length.

2. [18]

   The complainant’s evidence was that, in 2015, she was an Honours student in a science degree course. She had been awarded a scholarship to be part of an elite athletic program. A condition of the scholarship was that she not use recreational or “doping” drugs, and that, by way of enforcement of that condition, she could be subject to random drug testing throughout the course of the competition.

3. [19]

   In August 2015 she applied for casual work as a hostess in the applicant’s boat charter business and worked on the applicant’s boats from time to time. One of the boats on which she worked was Prometheus. Prometheus was a 70 foot vessel which had two decks, upper and lower. On the upper deck was the helm and some entertaining areas. A stairway led to the lower deck where there was a kitchen, three bedrooms (one of which was used as a storeroom) and two bathrooms.

4. [20]

   On 17 October 2015 the complainant started work at 10:15am. She boarded Prometheus at Rozelle. The first cruise of the day was completed uneventfully and a second party boarded at Woolloomooloo at about 4:00pm. The event was a birthday party for David Kezich who was a friend of the applicant.

5. [21]

   The applicant told staff that he would be joining the party on board. (I take that to mean that he was no longer acting as crew member.)

6. [22]

   The complainant gave evidence that, during the course of the evening, the applicant made a number of suggestive remarks to her. The first was made when the applicant announced that he was joining the birthday party. He told her that he:

7. [23]

   At about 6:00pm the boat moored at Darling Harbour for the night. Some of the crew were sent home. Members of the party on board went ashore to buy food. The applicant invited the complainant to join the party. She thought that he was “mildly affected by alcohol”. He told her that she should think of this as a special occasion because he did not usually ask his staff to join parties. The complainant, having left her car at Rozelle wharf, asked how she was to get home. The applicant replied:

8. [24]

   The complainant agreed to stay with the party and changed from her work uniform to her own clothes. The applicant offered her a drink and poured her a vodka and soda, which the complainant said was too alcoholic. He replied:

9. [25]

   A second suggestive remark was made just after the applicant gave the complainant the drink. She said that she agreed with him that it was hot on the boat, to which he responded:

10. [26]

    She said that a little later the applicant again approached her, “grabbed my drink” and insisted that it was not strong enough. She refused to allow him to put more alcohol in the drink. She poured that drink down the sink and poured herself a new drink.

11. [27]

    At about 9:00pm guests on the boat watched a fireworks display. The complainant was then with two other young women. The applicant offered them cocaine. One of the young women accepted; the complainant declined. Shortly after, the complainant received a text message from the applicant, asking her to come downstairs. The three women and the applicant went downstairs and into the second bedroom on the lower deck. The applicant produced a small bag in which were “small crystals” to which he referred as “M”. He and the young woman who had accepted his offer of drugs consumed the substance by placing it on a key which they then put into their mouths.

12. [28]

    The complainant (and others) returned to the upper deck where they mingled with guests.

13. [29]

    From time to time during the evening the complainant communicated, via Facebook, with her boyfriend who was in South Africa. Between 11:23pm and 12:12am, from the downstairs bedroom, she sent messages to him, in the last of which she said “okay, still on my boat, babe”. She considered herself at this time to have been mildly affected by alcohol. The applicant asked to speak privately to the complainant. He was then standing near the doorway of the main bedroom. The complainant walked into the bedroom. The applicant told her that he thought she was sexy and that he would like to see her in a bikini. Another man walked into the bedroom and offered the complainant and the applicant cocaine. The applicant accepted, the complainant declined.

14. [30]

    The other man began preparing “lines” of cocaine, which the applicant urged the complainant to use. She said:

15. [31]

    The last thing the complainant remembered before “waking up” was the applicant saying:

16. [32]

    The next thing she remembered was “waking up”, at about 2:45am. She felt “confused, dazed”. Her underwear was damp. She realised that she had lost her phone. She sought help from others and the phone was eventually located. The complainant then left the boat and went home by taxi; she arrived at some time after 3:00am. She went to sleep. She woke about two hours later, needing to urinate. Her underwear was still damp and stained and she felt a burning sensation on urination.

17. [33]

    At about 7:00am she woke her sister, who was sleeping in the room next door. She said:

18. [34]

    The complainant said that her sister then rang the applicant, who said that he did not have time to speak to her. She (the complainant) therefore sent a text message to the applicant saying that she wanted to speak to him. He telephoned her and she asked him what had happened to her, to which he replied:

19. [35]

    The complainant and her sister drove to St Vincent’s Hospital from where they were directed to the Sexual Assault Clinic at the Royal Prince Alfred Hospital (“RPAH”).

20. [36]

    The complainant expressly denied willingly taking any illicit substances on the night of these events, and denied that she had consented to any form of sexual intercourse between herself and the applicant.

21. [37]

    The complainant’s younger sister, with whom she shared accommodation and to whom I will refer as “HC”, gave evidence. She confirmed that the complainant had woken her on the morning of 18 October and appeared “sad”. HC gave an account of her conversation with the complainant that included the complainant telling her that her last memory of the previous evening was “being cornered downstairs on the boat” by the applicant, and of the applicant “making inappropriate comments” about her breasts. HC said that the complainant told her that she “must have blacked out or fallen asleep on the boat”, that she had woken and panicked and was unable to find her phone. The complainant complained of a “burning feeling” when she urinated.

22. [38]

    HC said that she made a telephone call to the applicant in which she said:

23. [39]

    In cross-examination HC agreed that the complainant had told her that she was drunk.

24. [40]

    At RPAH the complainant was examined by Dr Christopher Cooper who took a detailed history. He took a number of vaginal swabs for the purpose of DNA examination, as well as a urine sample. He also took the complainant’s underwear for examination.

25. [41]

    Dr Cooper’s evidence was to the following effect.

26. [42]

    On examination of the complainant, he observed an abrasion of the lower end of the complainant’s vagina (“the posterior fourchette”). He said that the injury was unusual in placement, and was a very reliable indicator that it arose from some sort of vaginal penetration, and the nature of the injury was an indication of dry painful vaginal penetrative intercourse, which would occur when the vagina was unlubricated. That was consistent with penetration while the complainant was unconscious. When asked what degree of force or trauma would be required to cause an abrasion of the type he observed, he answered:

27. [43]

    When pressed in cross-examination Dr Cooper agreed that abrasions of the sort suffered by the complainant could occur even when the vagina was lubricated but maintained that that was much less likely. He agreed that it could have been caused by “a clumsy fingernail” in the process of digital penetration. However, in re-examination Dr Cooper said that abrasion of the kind suffered by the complainant would be unusual after consensual sexual intercourse.

28. [44]

    The DNA analysis arranged by Dr Cooper revealed the presence in the complainant’s vagina of male DNA that matched the applicant and would have matched 1 in 750 unrelated males in the Australian population.

29. [45]

    A pharmacologist, Dr John Farah, analysed the sample of the complainant’s urine taken by Dr Cooper, for the presence of various drugs. No alcohol was detected, which Dr Farah said was unsurprising in view of the time that had elapsed since the events in question. A small quantity of cocaine was detected on subsequent analysis.

30. [46]

    Other witnesses were called in the prosecution case but, having regard to the issue raised by the applicant, it is unnecessary to go into them.

The defence case

1. [47]

   The applicant gave evidence. He gave an account of boarding Prometheus and picking up guests for the afternoon cruise. He gave a different version of the conversation of which the complainant had given evidence concerning “what happens on the boat stays on the boat”. His version was that he apologised to crew members because the party was going to be fairly big and there would be a mess to clean up, to which one of the crew replied:

2. [48]

   He said that he spoke to the complainant “multiple times” and that he was then “letting her go” as his girlfriend had wanted him to ask her to leave. He said that he said to the complainant:

3. [49]

   He said that the complainant replied:

4. [50]

   He said that he was never alone in “the master bedroom” with the complainant. He then gave an account of a conversation with the complainant in which she asked about his girlfriend and commented on his “privileged lifestyle”. He said that he went into the main bedroom to clear phone messages and that the complainant followed him there, carrying two drinks, one of which she gave to him. The transcript records that he then gave the following evidence:

5. [51]

   The applicant’s version of “the nipple conversation” was that, while he had his arms around her he could see the top of her breasts and the outline of her nipples, and said to her:

6. [52]

   He said that the encounter went on for perhaps 15 or 20 seconds, and he recalled that the complainant was quite lubricated. He said that he was conscious that people were around and that he should stop what he was doing. He ceased the activity, fearing that his girlfriend was approaching. He said that he said to the complainant:

7. [53]

   The applicant denied offering or giving the complainant any drugs, and denied putting anything in any drinks of hers.

Discussion concerning directions

1. [54]

   At the conclusion of the evidence a lengthy discussion took place between counsel and the trial judge concerning the manner in which the jury was to be directed. Included in that discussion were questions about the basis on which the Crown sought to prove that the applicant knew that the complainant did not consent to the intercourse.

2. [55]

   Initially, the Crown maintained the position that its case was that the complainant was unconscious. The trial judge referred to the evidence of Dr Farah, and suggested that the Crown case essentially was that the complainant was “asleep and not alert and responding … and was therefore unable to give consent”. She provided the parties with draft written directions for discussion purposes. These directions also incorporated a direction in respect of s 61HA(6)(a) (by which it may be established that a person does not consent to sexual intercourse if the person has sexual intercourse while substantially intoxicated by alcohol or any drug).

3. [56]

   The trial judge proposed a direction along the following lines:

4. [57]

   The discussion then ranged on; the alternatives under consideration appear to have been substantial intoxication by reason of ingestion of alcohol and/or drugs, and that the complainant was asleep.

5. [58]

   The trial judge said:

6. [59]

   “The first step” was the proposed direction in relation to substantial intoxication. Senior counsel was expressing himself satisfied with the proposed direction with respect to the complainant having been asleep. The Crown prosecutor raised the question of unconsciousness, but the trial judge indicated that she proposed to omit any direction about unconsciousness. There was no demur from either counsel to that proposal.

7. [60]

   In summing up to the jury the trial judge directed in accordance with that discussion. She said:

The appeal

1. [61]

   Although the applicant was represented by senior and junior counsel at trial, he has represented himself on appeal, with, it appears, some legal assistance. As indicated above, he relied on only one ground of appeal, that the verdict of guilty was unreasonable and could not be supported on the evidence. Nevertheless, he presented written submissions on the conviction appeal running to 97 pages, and a further 20 pages by way of response to the Crown submissions. He also presented 43 pages of submissions with respect to the application for leave to appeal against sentence and resentencing.

2. [62]

   The applicant divided the sole ground of appeal into nine “sub-grounds” with which I will deal separately, as he has done.

3. [63]

   The point the applicant sought to make under this sub-ground was that, between the opening and closing addresses at trial, the Crown changed its position, and the discussion between the trial judge and counsel at the conclusion of the evidence.

4. [64]

   I have set out above extracts from the Crown opening and closing addresses. As there set out, in its opening the Crown relied on s 61HA(4)(b) of the Crimes Act, which provides that a person does not consent to sexual intercourse:

5. [65]

   The applicant argued that the two concepts (“unconscious” and “asleep”) are separate and distinct and that the Crown was driven to abandon its case on unconsciousness by an exchange with the trial judge, owing to what he argued was:

6. [66]

   The point taken by the applicant raises an artificial distinction between “unconscious” and “asleep”. Section 61HA(4)(b) does not draw such a distinction; the trial judge was correct when she focused on lack of alertness, and consequent incapacity to consent. What was intended to be conveyed by s 61HA(4)(b) is a lack of awareness that may arise either from unconsciousness, or from sleep, but it is not necessary to choose one or the other. There was no evidence on which to base a conclusion that there is any clear dividing line between sleep and unconsciousness.

7. [67]

   The transcript shows that considerable attention was paid by all involved to directing the jury in accordance with the evidence as it had emerged. The applicant was represented by experienced senior counsel who agreed, for good reason, that the Crown case was essentially that the complainant was asleep and that the concept of unconsciousness should be omitted from the directions. It was well within the scope of senior counsel’s authority as counsel to take that course: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; R v Birks (1990) 19 NSWLR 677.

8. [68]

   The evidence was amply capable of establishing, and the jury was entitled to conclude, that, by reason of lack of awareness caused by sleep, the complainant did not consent to the sexual penetration. There was no “abandonment” of the Crown case as opened.

9. [69]

   I would reject sub-ground 1.

10. [70]

    The applicant’s case in this respect was circumscribed by two circumstances. First, he did not dispute that the complainant had no memory of the sexual intercourse. Second, and importantly, in the light of the DNA evidence, the applicant did not and could not dispute that some form of sexual penetration had taken place. His own evidence confirmed that it had.

11. [71]

    Accordingly, the applicant sought to challenge the Crown case that the complainant was asleep at the time of the sexual penetration. Although it was not always easy to follow, the applicant appeared to place reliance on what he called the complainant’s “fragmented memory” in respect of the surrounding events; the submission, perhaps (it is not clear to me) being that if the complainant could not remember other aspects of the evening, then it was reasonably possible that she had, in a waking state, consented to the sexual encounter with the applicant but had subsequently forgotten it.

12. [72]

    These submissions do not fit easily with the evidence. The complainant’s evidence was clear. She recalled waking in the bedroom, in a state of some confusion. She had no memory of the intercourse, even the following morning at her home and when examined by Dr Cooper; she had been working since 10:15am, had (voluntarily) consumed a relatively modest quantity of alcohol, and had (she said involuntarily) consumed a quantity of cocaine. In my opinion the only logical inference to be drawn from the whole of the evidence in this respect was that, at some time after consuming the alcohol and the cocaine the complainant had fallen asleep; it is not inconsistent that that sleep was induced by either or both of those substances.

13. [73]

    Once the jury accepted, as they obviously did, that the complainant had no recollection of the sexual penetration, it was open to the jury to conclude that that lack of recollection was attributable to her having been asleep. It was open to the jury to be satisfied that the complainant was asleep at the time of the intercourse. I would reject these sub-grounds.

14. [74]

    The main point made by the applicant in support of this sub-ground was that, in the light of the evidence of the applicant’s earlier inappropriate conduct towards the complainant, it was unlikely that she would have accepted his invitation to remain on the boat and join the party when her duties were completed, and to have engaged with the applicant in one of the bedrooms on the boat.

15. [75]

    I do not accept the applicant’s contention. The complainant’s account of the applicant’s suggestive remarks was accompanied by her account of her contemporaneous responses, which were to brush him aside, or to tell him, robustly, that his conduct was inappropriate. There was no suggestion that, at any earlier time, she felt threatened by the applicant.

16. [76]

    Something of the kind now suggested was put to the complainant in cross-examination. Her answer was:

17. [77]

    The complainant’s evidence of earlier events was not “inconsistent” with her evidence of later events. I would reject this sub-ground.

18. [78]

    The applicant relied on the evidence given by him in the trial that digital penetration had occurred, but consensually. This, he contended, since the complainant had no recollection of the incident, was the only evidence of what had occurred and had to be accepted, at least as a reasonably possible version of events.

19. [79]

    That is not correct.

20. [80]

    A powerful piece of evidence to the contrary was the applicant’s response when confronted by the complainant the following morning. He denied that anything untoward had occurred. It was only later, possibly on receipt of the DNA evidence, that he admitted that a sexual encounter had taken place; he then claimed it to have been consensual. Also relevant was the evidence of the applicant’s repeated suggestive remarks to the complainant, her rebuffs, his attempts to have her consume more alcohol than she wanted, as well as other drugs, and his final entreaty (“let me do this it will be fun”).

21. [81]

    The applicant’s account of the consensual encounter included an assertion that the complainant initiated it. This was a classic case of the word of one witness against the word of another. Resolution of that conflict is within the province of the jury.

22. [82]

    The mere fact that the complainant was unable to contradict the applicant’s account of events did not mean that the jury was obliged to accept that account, even as a reasonable possibility. The jury had the opportunity to observe both the complainant and the applicant give evidence; it was open to the jury to reject the applicant’s account. I would reject this sub-ground.

23. [83]

    Under this sub-ground the applicant contended that the complainant had a motive to lie, in order to conceal her activity from her boyfriend. He seized upon evidence that the complainant had, during the course of the evening, sent messages, by text or Facebook to her boyfriend, who was in South Africa. It seemed to be suggested by the applicant that the complainant did not wish her boyfriend to know that she had remained on board the boat after the completion of her duties.

24. [84]

    No such suggestion was put to the complainant, nor was any such argument addressed to the jury. The submission is, in my opinion, farfetched. As indicated, the complainant was in touch with her boyfriend by Facebook. He was in South Africa; had she wished to conceal her socialising activity from him, it would have been very simple to do so without fabricating an account of an unwanted sexual encounter. I would reject this sub-ground.

25. [85]

    The argument in support of this sub-ground was directed to the narrow question concerning the abrasion to the complainant’s vagina and relied upon Dr Cooper’s evidence that such an injury would occur when the vagina was unlubricated and that it could have been caused by a fingernail at a time when the vagina was dry before lubrication began. The applicant argued that it was unlikely that the complainant would have slept through an event of intercourse sufficient to result in such an injury.

26. [86]

    The argument depends upon assumptions about the depth of the complainant’s sleep. It is not the Crown case that the complainant simply fell asleep after a hard day’s work; it is that the sleep was or might have been induced by cocaine, alcohol or other substances. The medical evidence did not support the applicant’s version of events. I would reject this sub-ground.

27. [87]

    The applicant’s written submissions in support of sub-ground 8 run to 11 closely typed pages. They are not easy to follow. So far as I can ascertain, the applicant seeks to submit that the complainant’s account of the events that occurred on the boat ought not to have been accepted by the jury, for a variety of reasons. One reason (it seems) is that the complainant, on waking on the boat, must have “strongly suspected” that she had been sexually assaulted by the applicant, yet made no immediate complaint.

28. [88]

    The submission overlooks a number of things, including the complainant’s evidence that, at that time she was “dazed and confused”, and had no memory of what had happened. The suggestion that she “must have suspected” sexual assault is without foundation. So also is the suggestion that she could have been expected to make “immediate complaint” while on the boat. The complainant was on a boat owned by the applicant, among people who were strangers to her, but may be supposed to have been friends or acquaintances of the applicant. It is hardly to be expected, even if she had had the suspicions the applicant suggests that she must have had, that she would have complained to anybody there present.

29. [89]

    The applicant also calls in question the complainant’s evidence that she was dazed and confused. A number of witnesses gave evidence of helping the complainant find her mobile telephone. None of these, the applicant contends, described her as “dazed or confused”. However, one witness (the applicant’s de facto wife) gave evidence that the complainant was “distressed”.

30. [90]

    The applicant also referred to the complainant’s evidence of what she did on arriving at home early the following morning. Rather than waking her sister, HC, she went to bed and to sleep and did not tell her sister until the following morning. That, the applicant submitted, was inconsistent with the complainant having been sexual assaulted.

31. [91]

    The applicant submitted that, by the time the complainant arrived at home, she “may well have been” experiencing withdrawal from the cocaine that she had ingested. That may be correct. Since the complainant was adamant that she had not voluntarily used any illicit drug, it takes the applicant’s argument nowhere.

32. [92]

    The applicant placed considerable emphasis on the fact that the complainant made no allegation of sexual assault on returning home. That, of course, is entirely consistent with what she alleged.

33. [93]

    The applicant also submitted that the complainant’s remaining on the boat after her duties were completed, and socialising with the applicant, was inconsistent with her account of the suggestive remarks made to her earlier. I have dealt with that argument under sub-ground 8. It overlooks that the complainant was employed to work until 11:00pm, and also that she plainly felt able to deal with the thinly veiled suggestions put to her by the applicant.

34. [94]

    The applicant also purported to identify discrepancies in accounts given by the complainant to HC and Dr Cooper and her evidence at trial. No discrepancy of any materiality was identified. Essentially, sub-ground 8 consisted of argumentative material as to why the jury ought not to have accepted the complainant as a truthful witness. Plainly, the jury rejected those arguments, as do I.

35. [95]

    I would reject sub-ground 8.

36. [96]

    Under this sub-ground the applicant again sought to draw attention to a series of circumstances which, he contended, cast doubt upon the complainant’s credibility. For example, the first of these was that there was no explanation for the complainant remaining on the boat after “the sustained campaign of inappropriate behaviour” about which the complainant gave evidence.

37. [97]

    I have already commented on the complainant’s explanation for her response to the suggestive remarks which she said the applicant made. I do not find anything in that conduct requiring further explanation.

38. [98]

    Some of the other circumstances were repetitive of the previous sub-grounds, such as the asserted improbability of the complainant falling asleep in the circumstances as she described them.

39. [99]

    One of the circumstances relied upon was put as:

40. [100]

    In fact, the complainant’s evidence was that she had, in her initial statement, disclosed the Facebook message. More importantly, it is difficult to see why she should have thought or known that messages to her boyfriend in South Africa were relevant to her allegation of sexual assault against the applicant.

41. [101]

    There is nothing in the various circumstances relied upon by the applicant that causes me to conclude that the jury ought to have entertained a doubt about the complainant’s veracity. I would reject sub-ground 9.

Was the verdict of guilty unreasonable?

1. [102]

   The circumstances in which an appellate court will set aside a jury verdict on the basis that it is unreasonable or unable to be supported on the evidence are well known and have been stated many times. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ said at 493:

2. [103]

   That was reinforced, more recently, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, where the Court said:

3. [104]

   Notwithstanding the division by the applicant of the unreasonable verdict ground into specific sub-grounds, I have carefully considered the whole of the evidence. I am satisfied that it was open to the jury to find the applicant guilty of the offence. Prominent among my reasons, although not to be taken to exclude others, is the response of the applicant early on the morning of 18 October when asked what had happened. His denial of sexual encounter, contradicted later, was a telling piece of evidence against him. So also were the various items of evidence concerning his suggestive remarks to the complainant during the course of the evening. His attempt to fashion those remarks into innocuous observations, or to pass them on to others, was obviously rejected by the jury.

4. [105]

   I am satisfied on the whole of the evidence that the applicant was properly convicted of the offence. I would grant leave to appeal against conviction, but dismiss the appeal. I agree for the reasons given by Harrison J, that although leave should be granted to appeal against the sentence imposed, the appeal should be dismissed.

5. [106]

   JOHNSON J: I agree that the appeal against conviction should be dismissed for the reasons stated by Simpson AJA. With respect to sentence, I agree with the reasons of Harrison J and the orders proposed by his Honour.

6. [107]

   HARRISON J: I agree with Simpson AJA that the appeal against conviction should be dismissed.

7. [108]

   Before considering the applicant’s submissions in his appeal against sentence, it is convenient to provide a brief summary of her Honour’s sentence remarks.

8. [109]

   Her Honour found that the offence fell below the mid-range of objective seriousness, although not at the bottom or lowest point. In reaching that conclusion, her Honour made a number of factual findings, including that the applicant was in a position of authority in relation to the complainant at the time of the offence and that the applicant breached the trust the complainant placed in him. Her Honour also found that, on the evening of the sexual assault, the applicant had made sexual advances towards the complainant, all of which she rebuffed. Her Honour found that when he committed the offence, the applicant knew the complainant was not interested in sexual contact with him. Her Honour accepted that the offence was spontaneous, but found that the applicant made the decision to assault the complainant after seeing that she was asleep. She concluded that the applicant’s conduct was predatory.

9. [110]

   The applicant divided his appeal against sentence into seven sub-grounds. These are dealt with in turn.

Sub-ground 1: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by finding that the Applicant acted knowing the complainant was uninterested in sexual contact with him.

1. [111]

   In support of this sub-ground the applicant reiterated his conviction appeal submission that the complainant was not a credible witness and that as a result her Honour erred by finding that the applicant sexually assaulted her knowing she was not sexually interested in him, based on the complainant’s evidence. For the reasons discussed above at [96] - [101], it was open to the jury to accept the complainant’s evidence. It was therefore also open to her Honour to accept the complainant as a credible witness. Because her Honour made no error in doing so, the applicant has not demonstrated error in her conclusion that throughout the course of the evening the applicant’s sexual advances towards her were rejected, and that she knew at the time he sexually assaulted her that she was uninterested in sexual contact with him.

2. [112]

   In support of this sub-ground, the applicant also repeated an earlier submission that the complainant’s evidence that she rebuffed his sexual advances throughout the evening was inconsistent with her entering the applicant’s bedroom while he was there alone. The applicant submits that because she did so voluntarily, it was not reasonably open to conclude that the applicant knew she was not sexually interested in him. As found above, at [77], the complainant’s evidence of earlier events was not inconsistent with her evidence of later events, including her decision to enter the applicant’s bedroom a second time. The fact that the complainant voluntarily entered the applicant’s bedroom on the second occasion did not mean it was not open to her Honour to find that the applicant knew she was not interested in sexual contact with him. As her Honour observed, there was evidence from the complainant that throughout the evening she clearly and unequivocally rebuffed his sexual advances. It was therefore open to find that the applicant knew the complainant was not interested in sexual contact with him.

3. [113]

   The applicant also relied upon the complainant’s “failure” to leave his bedroom after he blocked the exit with his legs as evidence that it was not open to her Honour to find that he knew the complainant was not interested in him sexually. The complainant’s “failure” to leave does not cast doubt upon her Honour’s finding. Contrary to the applicant’s submission, in the circumstances of this case, it does not strike me as particularly unusual or remarkable that a young woman who has consistently rejected the sexual advances of her older, male employer, sitting alone in a confined space with him, may freeze in response to him blocking her way out. I would reject this sub-ground.

Sub-ground 2: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by not finding on the balance of probabilities that the Applicant acted believing the complainant was interested in sexual contact with him.

1. [114]

   This ground of appeal assumes, without explanation, that if her Honour had found that the applicant believed the complainant was interested in sexual contact with him, then the objective seriousness of the offence would have been reduced. I do not accept the assumption. While an offender’s knowledge that a complainant is not sexually interested in him may increase the objective seriousness of the offence, the obverse, in the circumstances of this case, is not necessarily true. This is because the point at which the applicant’s conduct became criminal was when he sexually assaulted her knowing she did not consent. The fact that he may have believed at some earlier point that she was sexually interested in him, is not, in my opinion, relevant to the assessment of the seriousness of his offending. The applicant knew when he had sexual intercourse with her that the complainant did not consent; the seriousness of his offending is not reduced by a finding that prior to the sexual assault he believed that the complainant was interested in sexual contact with him. Absence of a potentially aggravating factor does not reduce the objective seriousness of offending. I would reject this sub-ground.

Sub-ground 3: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by finding that the applicant made the decision to commit the criminal act after seeing the complainant was asleep and defenceless.

1. [115]

   The applicant contends that by its verdict the jury did not find that he knew the complainant was asleep when he had sexual intercourse with her, but only that he must have known she was asleep. He submits that there is no evidence that he knew the complainant was asleep when he penetrated her and that the only available inference from the jury’s verdict was that the applicant must have known, not that he actually knew, that she was asleep. The distinction sought to be drawn, as far as I can tell, is between the applicant’s actual knowledge and presumed knowledge.

2. [116]

   Two points should be made. First, I do not accept that the only available inference from the jury’s verdict is that the applicant must have known, but did not actually know, that the complainant was asleep. As noted above at [15], the Crown case was that the applicant knew the complainant did not consent (s 61HA(3)(a)), or was reckless as to whether the complainant consented (s 61HA(3)(b)), because she lacked the capacity to consent. The verdict of guilty means that the jury was satisfied beyond reasonable doubt that the applicant either knew the complainant did not consent or was reckless as to whether she consented. Both states of mind depend upon proof of actual knowledge.

3. [117]

   Secondly, it was open to her Honour to find that the applicant knew the complainant was asleep when he had intercourse with her. This is because the jury, by its verdict, found that the complainant was asleep when the applicant had intercourse with her. As a matter of common sense, if the complainant was asleep when the applicant had intercourse with her, it is open to conclude that that he knew she was asleep. This is especially so where, as in this case, the complainant was on a bed, had been consuming alcohol, and it was late at night.

4. [118]

   Given the complainant’s consistent rejection of the applicant’s sexual advances over the course of the evening and the applicant’s knowledge that the complainant was asleep, it was open to her Honour to conclude that he made the decision to commit his assault after seeing that she was asleep. It might be observed that such a finding was arguably favourable to the applicant in the sense that a finding that he made his decision to commit the sexual assault at a time well before the assault may have increased the objective seriousness of the offence. I would reject this sub-ground.

Sub-ground 4: It was not open to find that the objective seriousness of the offence was increased by reason of the conduct of the applicant being “predatory”. Further, in the context of assessing the objective seriousness, her Honour’s finding that the Applicant’s conduct was predatory involved “double counting”.

1. [119]

   Her Honour found that the applicant’s decision to sexually assault the complainant was predatory. He submitted that her Honour erred in her assessment of what constitutes predatory conduct. In making this submission, the applicant relied on the Victorian case of R v Scott (2009) 22 VR 41; [2009] VSCA 20. In that case, Robson AJA, with Redlich JA agreeing, upheld an offender’s appeal against sentence on the basis that the sentencing judge erred in characterising the offender’s conduct as predatory. Neave JA dissented on this point, finding that the sentencing judge’s use of the term “predatory” was an “adjectival description of conduct, rather than a legal term of art”: [98]. Neave JA would have dismissed the appeal against sentence.

2. [120]

   In Scott, the offender was convicted of an indecent assault against a 14 year old girl. Briefly, the facts were that the victim was at a gathering at her home with her mother and her mother’s friends, including the offender. The victim and the offender, a 39 year old man, discussed getting into the swimming pool. When the complainant went into her room to get changed, the offender entered and committed the indecent assault by touching her pubic area.

3. [121]

   The majority held that none of the factors relied upon by the sentencing judge, namely, that the offender touched the victim for his sexual gratification, the gap in age between the offender and the victim, that the offender was able to gain access to the victim because of the relationship between his family and hers, that the victim and others trusted him, and that he betrayed that trust and followed the victim into her bedroom, by itself necessarily constituted predatory conduct: see [117] – [118]. According to the majority, an indicator of predatory behaviour is whether there was an “element of planning” to the offending: [115]. The majority also acknowledged that “opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations”: [115]. However, “the critical element is whether there was evidence that satisfied the trial judge, beyond a reasonable doubt, that the applicant preyed on the victim as opposed to engaged in an isolated incident where a bit of horseplay got out of hand”: [118].

4. [122]

   The applicant submitted that because his offending was not planned and there was no evidence that he preyed on the complainant, her Honour erred in characterising his conduct as predatory.

5. [123]

   The first point to note is that the applicant’s reliance on Scott is misplaced. In that case, Robson AJA and Redlich JA did not intend to set out a definitive list of necessary factors that must be proved in order for an offender’s conduct to be classified as predatory in law. So much is clear from Robson AJA’s statement, not referred to by the applicant, that “I accept that the exact meaning of predatory in the context of a sexual assault may be uncertain in some circumstances”: [119]. The question in Scott was whether, in the particular circumstances of that case, the offender’s conduct was predatory. The majority answered the question in the negative, but in so doing did not intend to set out a list of factors that must be established for conduct to be classified as predatory.

6. [124]

   While there might be force to Neave JA’s statement that “predatory behaviour” is an adjectival description of conduct, rather than a legal term of art, it is necessary to consider whether, on the evidence in the present case, it was open to describe the applicant’s conduct as predatory. In my opinion, for the following reasons, it was.

7. [125]

   First, the applicant knew the complainant was asleep when he sexually assaulted her. Secondly, throughout the evening he had made sexual advances towards her, including comments about the complainant’s nipples, her being sexy, and wanting to see her in a bikini, all of which were rejected. Thirdly, throughout the evening the applicant encouraged the complainant to consume alcohol and drugs, notwithstanding that she told him she did not want to consume drugs. Fourthly, on the night of the sexual assault the applicant had wrapped his arm around the complainant’s back. All of these matters combine to satisfy me that it was open to her Honour to find that the applicant’s conduct was predatory.

8. [126]

   The applicant submitted that even if such a finding was open, it amounted to “double counting” to take it into account when assessing objective seriousness. According to the applicant, the only basis upon which it was open to conclude that his behaviour was predatory was that the complainant was asleep at the time of the intercourse. It was on this basis, he submitted, that the Crown proved an essential element of the offence, namely, his knowledge that the complainant did not consent. Her Honour therefore erred in taking it into account twice.

9. [127]

   I disagree. To reconsider a fact essential to establishing proof of liability when determining objective seriousness is not to double count. If the applicant’s submission were correct, that would lead to the result that a sentencing judge, when assessing objective seriousness, could not consider the fact that, in relation to an offender found guilty of murder, he or she intended to kill the deceased rather than cause grievous bodily harm. I would reject this sub-ground.

Sub-ground 5: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by taking into account that the applicant was in a position of authority with respect to the complainant.

1. [128]

   When assessing the objective seriousness of the offence, her Honour said this:

2. [129]

   Although her Honour did not specifically refer to it, s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that it is an aggravating factor on sentence if the offender abused a position of authority in relation to the victim.

3. [130]

   The applicant submitted that it was an error for him to be sentenced on the basis that he was in a position of authority in relation to the complainant because, first, the evidence did not support that finding beyond a reasonable doubt, and secondly, to sentence him in that way involved a breach of the De Simoni principle. Each argument will be considered in turn.

4. [131]

   For the reasons that follow, I am satisfied that her Honour did not err in concluding that the applicant was in a position of authority in relation to the complainant at the time of his offending. But before explaining why that is so, it is necessary to address a point raised by the applicant in his submissions.

5. [132]

   Throughout his written submissions in relation to this sub-ground, the applicant made reference to the fact that because the evidence allegedly established that the complainant did not “feel” as though the applicant was in a position of authority over her, the applicant was consequently not in fact in a position of authority over her. I do not think this reasoning is correct. In my view, the question of whether an offender was in a position of authority over a victim cannot be definitively determined by how the victim subjectively felt about her or his relationship with the offender. The question is instead to be determined objectively by examining such things as the nature of any relationship that might have existed between the two and factors such as the age discrepancy, if any, between them and the location of the offence.

6. [133]

   In my opinion, her Honour’s conclusion that the applicant was in a position of authority in relation to the complainant was open. First, at the time of the offending the applicant was the complainant’s employer. Secondly, the offending occurred only hours after the complainant finished her shift sometime between 8 and 8.30 in the evening. This was not a case where, for example, the offending occurred days or weeks after the complainant finished working for the applicant. Rather, there was a short amount of time between the end of her shift and the commission of offence. Thirdly, and significantly, the offending was perpetrated by the complainant’s employer and occurred in her workplace. This was not a case where, for example, the offending occurred in a private residence unconnected to the complainant’s employment. On the contrary and in my view significantly, the applicant chose to assault the complainant on the boat he owned and on which she was employed. The fact that the complainant was by then a guest at a private party occurring in her workplace does not in my opinion mean that she was not in her workplace. She was literally at the place where she worked when she was sexually assaulted. The applicant was the complainant’s employer, she had only recently finished her shift and she remained at her place of work. It was in the circumstances clearly open to her Honour to conclude that the applicant was in a position of authority over the complainant.

7. [134]

   The applicant also submitted that her Honour breached the De Simoni principle by finding that the offence was aggravated because the applicant was in a position of authority over the complainant. Such a finding, it was said, breached the principle because the applicant was convicted of an offence contrary to s 61I, not the more serious offence of aggravated sexual intercourse without consent contrary to s 61J, where a circumstance of aggravation is that the victim is “under the authority” of the offender.

8. [135]

   The problem with the applicant’s submission is that it assumes that the s 21A(2)(k) aggravating factor of “abusing a position of authority” and the aggravated sexual assault offence, where the victim is “under the authority” of the offender, capture the same set of factual circumstances. In my opinion, the assumption is incorrect. The aggravating factor directs attention to whether the offender was in a position of authority over the victim; the aggravated offence, on the other hand, directs attention to whether the victim is under the authority of the offender. These concepts are factually distinct. Her Honour did not find that the complainant was under the authority of the applicant. I would reject this sub-ground.

Sub-ground 6: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by taking into account that the applicant was in a position of trust with respect to the complainant.

1. [136]

   The first point to note is that contrary to the applicant’s submission, her Honour did not find that the applicant was in a position of trust with respect to the complainant. As the extract of her Honour’s remarks on sentence reveal, quoted above at [128], her Honour found that the complainant “was entitled to trust him [the applicant]” and “to the extent there is a degree of overlap between a breach of trust and a breach of a position of authority, I have taken care not to double count”. Nowhere in her remarks did her Honour find that the offending was aggravated because the applicant was in a position of trust. Her Honour’s finding that the complainant was entitled to trust the applicant and that by sexually assaulting her he breached the trust the complainant legitimately placed in him, is distinct from finding that the applicant was in a position of trust.

2. [137]

   That is enough to dispose of this sub-ground. However, I will briefly consider whether it was open to her Honour to find that the complainant was entitled to trust the applicant or that he breached the trust she placed in him.

3. [138]

   As the quote extracted at [128] reveals, her Honour found that on the night of the offending the applicant encouraged the complainant to trust him by making statements including “I won’t let anything happen to you”. In addition to this statement, in examination in chief, the complainant said that the applicant expressly told her “I should trust him” after he had offered her cocaine. In my view, given the complainant’s evidence that the applicant expressly told her that she could trust him and his claim that he would not let anything happen to her, it was open to find that the complainant was entitled to trust him and that by sexually assaulting her he breached that trust. I would reject this sub-ground.

Sub-ground 7: Her Honour the sentencing judge erred in her assessment of the objective seriousness of the offence by finding that the complainant was vulnerable because of her employment.

1. [139]

   In making this submission, the applicant relied on the following statement from her Honour:

2. [140]

   In the quoted extract, her Honour did not find that the complainant was vulnerable because of her employment. On the contrary, her Honour found that she was vulnerable because she was asleep and defenceless. The applicant’s reliance upon the quoted portion does not assist his argument.

3. [141]

   The applicant also relied upon her Honour’s statement, made at a later stage in her remarks on sentence, that “courts must impose sentences to deter those in a position such as an employer from taking advantage of situations where people might be vulnerable because of their employment”. Read in context, this is a statement about general deterrence, not objective seriousness. The applicant’s reliance upon the quoted statement also does not assist his argument. I would dismiss the sub-ground.

CONCLUSION

1. [142]

   The applicant has not made good any of his challenges on sentence. Although leave to appeal against sentence should be granted, the appeal against sentence should be dismissed.