Kramer v R; R v Kramer

1. [1]

   DAVIES J: On 14 February 2022 Boyd Kramer (“the applicant”) was found guilty, after a trial before North DCJ and a jury, of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). On 23 June 2022 the applicant was sentenced by Judge North to a Community Correction Order for a period of two years commencing 23 June 2022 and expiring 22 June 2024. There were a number of conditions attached to the Community Correction Order including that the applicant complete 300 hours of community service work in the two-year period.

2. [2]

   The applicant now appeals against the verdict on the following grounds:

3. [3]

   The Crown appeals against the sentence imposed upon the applicant on the following grounds:

The facts

1. [4]

   The following summary of the evidence relevant to the grounds of appeal is taken largely from the applicant’s written submissions.

2. [5]

   The complainant and applicant had "matched" using the dating application "Tinder". Matching occurs when participants using the Tinder application indicate an interest in the photo and profile of another person by swiping right. The Crown alleged that during the week commencing 12 April 2020, the complainant and applicant commenced messaging via Tinder where they would speak once per night and/or "most nights". On 18 April 2020, the complainant and applicant moved away from the Tinder dating platform and started communicating by mobile phone text message. The complainant gave the following evidence:

3. [6]

   Screenshots of various messages exchanged between the applicant and complainant, taken from the complainant’s phone, were Exhibit A in the trial.

4. [7]

   On the evening of 18 April 2020, the complainant and applicant agreed that the complainant would go to the applicant's apartment in Mosman to eat dinner, smoke marijuana, and stay the evening, the complainant having packed an overnight bag. During the mobile phone text message exchanges on 18 April 2020 relating to that arrangement, the complainant and the applicant had the following exchange:

5. [8]

   By way of a further text message, the complainant said "Cuddles, I'd be open to", together with a wink emoji, to which the applicant said, "Looks like we've got a deal".

6. [9]

   At about 8:10pm, the complainant arrived at the applicant's unit in Mosman by car. The applicant opened the door to his apartment, gave the complainant a hug and invited her in. During the course of the evening, the complainant and applicant sat on the couch, ordered dinner using Uber Eats, chatted and smoked marijuana on the balcony of the unit, and watched a movie and a documentary on the couch.

7. [10]

   The complainant said that when they were watching the movie on the couch, the applicant put his hand on her left leg three times. She took no objection to this. After they had watched a movie, the applicant asked the complainant whether she wanted to smoke another joint. She did not and so he went out onto the balcony and smoked by himself. Upon his return, they watched a 50-minute documentary, by the end of which the complainant wanted to sleep. The applicant asked her whether she wanted to go to the bedroom, and she said "Yes". She picked up her bag and took it to his bedroom.

8. [11]

   The complainant took off her bra and changed into her pyjama shorts and shirt. The applicant had got into the bed and was under the sheets and shirtless so she went to the other side of the bed to get in. He asked if she was tired and she said "Yes". He then said, "Can we at least cuddle?". She said "Okay". She said that she wanted to sleep but felt as though she was being rude if she did not.

9. [12]

   The applicant moved towards her and "spooned" her, by pressing his body against her in a foetal like position. His crotch area was against her buttocks at this stage. He spooned her for roughly half a minute before his hand moved to the front of her torso, and then up to her right breast. He cupped her right breast for approximately one minute through her t-shirt. The complainant said, "That's not cuddling". He laughed at that, moving his hand down and underneath her shirt to fondle both her breasts skin to skin. This took place for a minute when he moved his hand down her stomach towards the top of her shorts. She said, "No, don't", and he rolled away from her. They then had a general conversation for about two minutes.

10. [13]

    He was lying on his left side facing her as they were having this conversation. He asked, "Can I kiss you?" and she said, "Yes". They kissed mouth to mouth and then his hand again went under her shirt and fondled her right breast. After a minute of this kissing and breast fondling, his hand drifted down to the top of her shorts whereupon she grabbed his hand and moved it back to her breast, which he continued to fondle. He stopped kissing her mouth and moved to her ear, her neck and thereafter, pulled up her shirt and sucked on one breast while he fondled the other. This lasted for about a minute before the complainant said, "That's enough", and then he stopped and rolled off. When he rolled off, they again had a general conversation for approximately three minutes.

11. [14]

    After the conversation, the applicant leaned across and moved her face softly to kiss her which she allowed. He put his hand up her top and fondled her breasts before moving it down to the top of her shorts. This time, she did not stop him and he put his hand underneath her shorts but above her underwear, and stroked her vagina through her underwear for approximately one to two minutes. He then went to move her underwear to the side and she said, "Stop".

12. [15]

    The complainant said that the touching of her vagina until this point had been on the outside of her underwear. Specifically, she said that he was stroking from the top where her clitoris is down to the entrance of her vagina. She said that when she said "Stop", he had rolled away from her but kept his hand above her knee and continued to stroke her leg. They then had a conversation for about four minutes. During this conversation, he slowly moved his hand up her leg, up through the bottom of her shorts and back to her underwear. He proceeded to stroke the area from her clitoris down to the entrance of her vagina for about one to two minutes.

13. [16]

    At this point the applicant stopped touching the complainant in the vaginal area and pulled off her shorts and underwear. She said that he also took off his underwear at this point. He penetrated her vagina with his index finger for approximately 20 seconds. He then added his middle finger and did that for approximately a minute and a half; he was using both fingers to penetrate her in and out. Using his other hand, he then took her right hand and moved it down towards his erect penis. She said that once it got to that area she pulled her hand away and said, "No, that is not happening". She said he then withdrew his fingers from inside her and rolled onto his back.

14. [17]

    The complainant then gave the following evidence:

15. [18]

    The complainant said that this conversation had upset her such that she was now facing the wall. After about three minutes of silence, the applicant came back towards her and commenced spooning her again. He moved his hand to her groin/vagina area and proceeded to stroke it for about one minute without penetration.

16. [19]

    The applicant then rolled her onto her back and performed oral sex on her. This involved him licking and sucking her clitoris and inserting his tongue into her vagina. This went for "less than a minute" when the complainant said, "Stop", gently pushing his head away from her. Upon stopping the cunnilingus, he inserted his finger back inside her vagina and penetrated her for approximately half a minute. She said that he then withdrew that finger and spat on his hand, inserting one finger into her vagina and one into her anus. This went on for approximately one to two minutes.

17. [20]

    The applicant then asked her to turn over. The complainant turned over and lay on her stomach. He proceeded to penetrate, with his fingers, her anus and vagina for roughly three to four minutes. After these three to four minutes, and despite the complainant noting earlier in her evidence that the room was completely dark and the lights in the bedroom off, she said, "Stop", because she did not feel comfortable not being able to see him behind her.

18. [21]

    The complainant said that after this they both lay back down and had a conversation that lasted about five minutes. Following this five minute conversation, he engaged in dry sex with her (referred to as "dry humping"). The complainant described this as skin-to-skin contact where you proceed to thrust without penetration. She said that his erect penis was against her stomach at this time, and that this occurred for one to two minutes. She did not move or make any sounds whilst this was occurring. She said that he was sweating heavily at this stage and that his sweat had been dripping on her.

19. [22]

    She said that he then moved back to rub the head of his penis against her vagina. He had told her during the dry humping that he would not put his penis inside her. He rubbed the head of his penis outside of her vagina area for approximately one minute. She said that she did not feel comfortable with the head of his penis being this close to her vagina and accordingly, asked him to "Stop". He did so, rolled off and laid next to her, but continued to face her.

20. [23]

    After two minutes of conversation, he got back on top of her and proceeded to dry hump her again for approximately two minutes. She said his erect penis was against her pelvis. She said that she stayed silent and was not enjoying this and just wanted to sleep. She started to feel scared. She saw him suddenly get off her and out of the bed, walking towards his wardrobe. She asked him what he was doing and he said that he was getting condoms. She said "Why are you getting condoms, we're not having sex?" He dropped the box and the foil condom packet, remounting her and saying, "Don't worry, I will not put it inside you". He resumed dry humping her with his penis against her pelvis for about a minute before moving it down towards her vagina and stroking it up and down for approximately 30 seconds to one minute.

21. [24]

    The complainant said that the applicant then inserted his penis into her vagina. He started thrusting in and out of her. She froze for approximately 10 seconds. During this time, she thought he had thrust it in and out of her approximately six times.

22. [25]

    The complainant said that she could not comprehend what was happening to her, but that once she had understood, she moved both her hands down to his pelvis in an attempt to push him off and out of her. He continued to thrust/push towards her. She said that she said, "Please don't", while still trying to push on his pelvis. She moved her hands to his chest, pushing him to “get off”, and slapped his chest. It was alleged that this incident went on for a minute to a minute and a half. She could not recall the exact order of events but remembered telling him to stop. He then rolled off her and onto his back on the bed. The complainant decided that, as she had just had sex, she would need to go to the toilet so she did not get a UTI, and so asked him where the toilet was located. When in the bathroom, she contemplated her situation for about two minutes. She said that she wanted to leave the house but her bag was next to his side of the bed.

23. [26]

    Following the disputed act, after being in the bathroom, the complainant got back into the bed. The applicant said, "Are you okay?" to which she responded "Fine". In further consensual sexual activity following the disputed act, the applicant said, "I'm going to finish myself off, can I touch you?" and asked to touch her bottom. She said, "Okay", because she did not want to anger him. The applicant masturbated while touching her buttocks for approximately three minutes. She said that he said, "Sorry about that, I was really horny. I'm sane again now. Are you okay?" He then asked whether he could get her anything. He asked her whether she just wanted to sleep and she said yes.

24. [27]

    Approximately 10 to 15 minutes later, she heard him snore. She decided she wanted to leave. At one point, he woke up and asked, "Are you okay?" He then spooned her again. He started snoring again. When she was getting out of the bed, he asked her what was wrong, and she said that she had a headache and asked for a Panadol. He fetched a Panadol for her, during which she put her underwear and shorts back on and sat at the end of the bed. She ingested the Panadol with water and told him that she wanted to leave. He asked, "Was it something I did?" She said, "No, I just have a headache and want to be in my own bed". He said to her that he hoped she felt better. She said thanks and left the premises.

25. [28]

    The complainant had thought she had left the applicant's apartment at around 1:45am. She thought that because the applicant had messaged her saying "Get home safe" at around that time. She said she sat in the driver's seat of her vehicle messaging several of her friends because she did not want to drive, and to see whether anyone was available to come and pick her up. The complainant sent a group message to two of her work colleagues, Sally and Noelle. She said that she also messaged Sally separately.

26. [29]

    In addition to contacting Sally and Noelle, the complainant messaged - either individually or via group message – a number of other persons including Jessica Di Fazio. She had been successful in making contact with Jess who was living overseas in Vancouver, Canada at this time. She spoke with Jess by way of Facebook Messenger and then by way of a telephone call using the same platform.

27. [30]

    The complainant had messaged her friends because she had smoked the joint of cannabis earlier in the evening and did not want to drive but wanted to go home. She wanted to see whether any of them were awake for this purpose. She spoke to her friend Jess in Canada about how long she would have to wait until she could drive. She said marijuana was legal in Canada and knew that Jess partook in it over there, so she thought that she might be able to advise her.

28. [31]

    The complainant also said to Jess in a text,

29. [32]

    Jess then rang the complainant and they spoke for some time. The complainant said she was very upset in talking to Jess. Jess indicated that she had been through a similar situation in her life and that she had regretted not telling anyone. The complainant said that she and Jess were arguing about what was classified as sexual assault, the complainant noting that she had gone to his house and been in his bed. They looked up what constituted sexual assault together, while they spoke over the phone, with Jess stating, "I really think you need to report it". The complainant indicated that she did not want to report it. They then came across a sexual assault hotline where the complainant could chat to someone without having to speak to them on the phone.

30. [33]

    The complainant commenced an online chat with a sexual assault service - 1800RESPECT - having arrived at her home in Curl Curl following a 20 to 25 minute drive. On the recommendation of the 1800RESPECT online chat, the complainant called a crisis hotline. She did not recall who she spoke with but thought the call had gone on for 13 minutes.

31. [34]

    During the course of the phone call, the complainant first said that she didn’t know if what happened constituted sexual assault. She then described what happened as follows:

32. [35]

    It was recommended that she attend a hospital, the hotline service telling her that what had happened was a sexual assault. The complainant did not want to report the matter to the police.

33. [36]

    The complainant contacted, and then attended, Royal North Shore Hospital (RNSH), arriving at 4:30am. She was examined by Dr Deborah Bachmayer who also took forensic swabs. Dr Bachmayer took the following history from the complainant:

34. [37]

    On Sunday 19 April 2020 at around 9am the complainant woke up. In addition to the applicant’s earlier message, "I hope you got home safely" with a kiss, the complainant saw a message from the applicant asking, "Are you okay?". The next message from the applicant read, "I'm sorry", with a further message asking, "Can I make it up to you?". The applicant sent a further message, namely, "I'm very sorry about last night, I hope you can forgive me. I was very attracted to you... that's not me. I hope you understand. I'm sorry girl”.

35. [38]

    The complainant did not respond to any of these messages at the time. After she did not respond, the applicant tried to call her three times.

36. [39]

    The complainant replied to these messages on Monday, 27 April 2020. The following exchange ensued:

37. [40]

    The applicant then tried to telephone the complainant at 6:08pm. She did not answer. The messages continued:

38. [41]

    The complainant did not reply to this last message.

39. [42]

    The complainant said that it took her two weeks to decide to go to the police about this matter.

40. [43]

    The applicant was arrested on 12 June 2020 and took part in an Electronically Recorded Interview with a Suspected Person (ERISP) on that day.

41. [44]

    When asked to give his side of the story about what happened, the applicant said this:

42. [45]

    The applicant denied that he had sexual intercourse with the complainant (that was understood to mean penile vaginal intercourse), but he also said:

43. [46]

    The applicant said a number of times that the complainant had said that she did not want to have sexual intercourse but that she was okay “with doing other stuff”.

44. [47]

    On a number of occasions during the interview the applicant said that he could not remember things and that he “was really intoxicated, I just don’t remember exactly. I am having real troubles remembering what happened that night”. He said that he did not think he had oral sex with the complainant, that he couldn’t remember it. When asked if “put a finger inside her”, he said,

45. [48]

    He was asked about the disputed conversation (set out at [17] above) and he said:

46. [49]

    When he gave evidence at the trial, the applicant said that his memory of the events of the night was better than it had been at the time of the ERISP, and that he was very stressed and anxious during the ERISP. He gave evidence of remembering things at the trial that he had not been able to recall at the time of the ERISP.

47. [50]

    In contrast to what the applicant said in his ERISP, he gave the following evidence concerning digital penetration of the complainant:

48. [51]

    The applicant denied that his penis went inside the complainant’s vagina, he said that he “never went near the condoms. At no point was a condom used, or they’re grabbed.” He denied saying to her after the sex finished, “Sorry about that. I was really horny. I’m sane again now”.

Grounds of appeal

1. [52]

   Mr Stratton of senior counsel for the applicant submitted that seven matters in particular, when taken together, demonstrated that the jury ought to have had a reasonable doubt as to the applicant’s guilt. The matters were these:

2. [53]

   The matters relied upon by Mr Stratton SC in oral submissions to show the implausibility of the account were said to be, first, following the disputed conversation (set out above at [17]) MA and the applicant then discussed their favourite sexual position. Secondly, in the context of all of the sexual acts that took place between MA and the applicant, there was an improbability about the penile vaginal sexual intercourse having taken place against the will of the complainant. Thirdly, after the sexual acts including penile vaginal intercourse, the complainant stayed at the applicant’s house for some hours afterwards.

3. [54]

   Secondly, Mr Stratton submitted that there were a number of problems with the complaints made by MA. In relation to the first complaint to her friend Jess, the complainant said, “I was letting him fool around but whenever he went near my vagina, I told him ‘No’”. Mr Stratton submitted that what she told Jess was not correct because on her own account she had consented to both digital penetration of her vagina on at least two occasions and cunnilingus. Mr Stratton submitted that the complaint recorded by 1800RESPECT differed in a similar way to the complaint to Jess from the complainant’s evidence at the trial. What she told 1800RESPECT is set out at [34] above, and reliance was placed by what Mr Stratton identified as “whenever he went near my vagina, I told him ‘No’”.

4. [55]

   Thirdly, Mr Stratton relied on the complaint recorded by Dr Bachmayer. Mr Stratton submitted that the account given there of the disputed conversation was different from what had been said to Jess and to 1800RESPECT, and she also told Dr Bachmayer that when the applicant performed oral sex on her she tried to stop him. That was said to be inconsistent with her evidence.

5. [56]

   Fourthly, in relation to forensic evidence, Mr Stratton also relied on Dr Bachmayer’s evidence that “one might expect some pre-ejaculate which may contain some small amount of spermatozoa if there was penetration by the penis of the vagina”, but in fact none was found. Mr Stratton relied on the absence of sperm cells detected in the examination of the higher vaginal swab. He maintained that the absence of sperm cells was consistent with the applicant’s account.

6. [57]

   The fifth matter concerned the complaint made to the police and to Constable Cooke in particular. The two matters pointed to were the fact that Constable Cooke said that the complainant did not tell her that the complainant actually enjoyed the sexual experiences of digital penetration and oral sex on her genitals. Further, she did not tell Constable Cooke that she consented to the applicant putting his finger into her anus.

7. [58]

   Sixthly, in relation to the applicant’s ERISP, Mr Stratton submitted that the applicant denied having penile vaginal intercourse with the complainant, but admitted having digital and oral sex with her. He also denied the disputed conversation.

8. [59]

   Finally, Mr Stratton relied upon the applicant’s good character.

9. [60]

   The High Court said in Dansie v The Queen [2022] HCA 25 at [8]:

10. [61]

    In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 the High Court said:

11. [62]

    It is not a matter of whether the jury might have entertained a reasonable doubt as to the applicant’s guilt, it is whether it must have done so: Libke v R (2007) 239 CLR 599; [2007] HCA 30 at [113].

12. [63]

    The seven matters relied upon by the applicant when considered together do not cause me to have a reasonable doubt about the guilt of the applicant. The applicant’s ERISP, the asserted implausibility and inconsistencies in the complainant’s account, as well as the applicant’s good character must be considered in the light of all the evidence at the trial. These matters were patent to the jury which was entitled to give them as much, or as little, weight as its members felt they deserved. The jury was entitled to conclude that the changes in the applicant’s account (for example, whether he remembered digitally penetrating the complainant) were of greater significance in reaching factual conclusions as to the central issue(s). All of the matters raised on the appeal were, or must have been, taken into account by the jury in reaching its conclusion that the complainant’s account was credible and reliable. I would not reach a different conclusion, particularly taking into account “the advantages enjoyed by the jury” in seeing the witnesses give evidence and the requirement of unanimity “after the benefit of sharing the jurors' subjective assessments of the witnesses”: Pell at [38]. This is not a case, like Pell, where there was undisputed and objective testimony that undermined the complainant’s version of events: cf, for example, Hodgson v R [2022] NSWCCA 72.

13. [64]

    The fact that there are discrepancies in the early complaints, whilst a factor to consider, does not in the present case cause a reasonable doubt. It is scarcely surprising that when the complainant is giving an account to three different people in very different circumstances (a friend by Facebook message, a telephone hotline, and a doctor who was examining her) that the accounts would differ. It does not seem to me that the complainant’s statement that “whenever he went near my vagina I told him ‘no” was incorrect. The context was that, on the applicant’s account, she was not prepared to engage in penile-vaginal intercourse although she was content to engage in a number of other sexual activities. She was clearly prepared to engage in digital penetration and cunnilingus. It is not difficult to understand why she may have wanted to draw the line at penile-vaginal intercourse. In her evidence, she said that on two occasions where the applicant put his penis near her vagina she said “no” and “stop”.

14. [65]

    The discrepancies are small. When discussing the complaint evidence the trial judge said in his summing-up:

15. [66]

    The complainant’s focus in her chat with 1800RESPECT was to understand if what had happened constituted sexual assault. That focus tends to give particular credence to her evidence of the disputed conversation. In that conversation, the applicant was suggesting that if he was to have penile-vaginal sex with her in the circumstances the two of them were in, that would not amount to rape, which he was suggesting occurred when violence was involved. But for that conversation, it is difficult to understand why the complainant would have had any doubt that what had happened to her, on her account, constituted sexual assault. That the conversation occurred is supported by the fact that she relayed that conversation to Dr Bachmayer within hours of the events which occurred at the applicant’s residence.

16. [67]

    What the complainant said to her friend Jess was in a text message, and it would not be expected that the whole account of the night would have been conveyed. When that text message (at [31] above), and the accounts given to 1800RESPECT (at [34] above) and Dr Bachmayer (at [36] above) are compared, it can be seen that they are, fundamentally, the same. Ultimately, any discrepancies were a matter for the jury.

17. [68]

    As far as what the complainant said to Constable Cooke is concerned, when the complaint of the complainant was that she did not consent to penile-vaginal intercourse, there would be little or no reason for her to tell the police officer that she enjoyed other forms of consensual sex with the applicant. She was not complaining about those matters, and her enjoyment or otherwise of them was simply not relevant.

18. [69]

    The matter concerning the forensic evidence concerned the lack of any sperm or pre-ejaculate found in the complainant’s vagina. Reliance was placed on the agreement of Dr Bachmayer to a proposition put to her in cross-examination. It is necessary to set out the whole of that evidence:

19. [70]

    The last question put to Dr Bachmayer involved two possibilities (“might” and “may”). The question was not even put as “would expect”. Secondly and significantly, before that question was even put, when Dr Bachmayer was explaining about pre-ejaculate, she twice made the point that it is “variable” between men. There was no evidence about this from the applicant.

20. [71]

    Accordingly, the absence of sperm in the swab taken of the complainant’s vagina does not assist one way or the other in determining whether the applicant’s penis was in the complainant’s vagina.

21. [72]

    In relation to the implausibility of the complainant’s account, I set out at [52] the matters relied upon by the applicant in oral submissions. In addition, the written submissions made reference to the complainant’s not knowing where the toilet was when she got up after the sex had come to an end.

22. [73]

    As to the discussion of favourite sexual positions, it is not clear why that discussion makes the account of the sexual assault implausible. On the evidence of both the complainant and the applicant, there was flirtatious talk and behaviour throughout the night. The parties engaged in much consensual sexual activity, and the complainant did not resist this or express any subsequent misgivings. Even if the complainant was happy to talk about favourite sexual positions, that does not cast doubt on her decision not to consent to penile-vaginal intercourse, at least on that first night.

23. [74]

    As to the asserted improbability of penile-vaginal intercourse having taken place, it is not clear why this was said to be improbable. The complainant did not complain about any of the other sexual acts but made it clear in advance, and throughout the night, that she did not consent to “sex” which was understood by both parties to be penile-vaginal intercourse. The messages to Jess Di Fazio show that she was upset by the fact that sexual intercourse of that nature had occurred. Her enquiries about whether sexual assault had occurred are inconsistent with her having engaged in something willingly but regretting it afterwards. This was not a case where the applicant was maintaining that a consensual sex act of intercourse had occurred.

24. [75]

    As to not knowing where the bathroom was, the complainant gave evidence about not knowing where the toilet was, and denied, contrary to the applicant’s evidence, that she had earlier used the bathroom to clean her teeth. That was a matter that formed part of the jury’s assessment of the witnesses.

25. [76]

    As to the final matter, the complainant gave an account of why she did not leave straight away. That was a matter for the jury to assess as part of the complainant’s overall credibility. In any event, the submission comes close to ignoring what is now received wisdom, that victims of sexual assault do not all react in the same way. The trial judge said in his summing-up:

26. [77]

    The matters identified by the applicant to establish that the verdict was unreasonable do not, when considered either separately or together, mean that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

27. [78]

    My examination of the whole of the trial evidence does not cause me to doubt the guilt of the applicant. The jury clearly rejected the applicant’s evidence where it conflicted with the complainant’s evidence. Three early, and largely consistent, complaints supported the complainant’s evidence. Her evidence that the applicant said at the conclusion of the sex, “Sorry about that. I was really horny. I’m sane again”, provides some support for her account of penile-vaginal sex against her will. That conversation was conveyed both to Ms Di Fazio in the text, and to Dr Bachmayer.

28. [79]

    Further, the jury were entitled to regard the post-event text messages from the applicant as an admission of some wrongdoing. Those messages are set out at [39] and [40] above.

29. [80]

    It is very clear to both parties that the references to “sex” in those messages are references to penile-vaginal sex, because the rest of the encounter was consensual, and the applicant did not protest to the complainant that most of it had been consensual. Further, the statement in italics, “I tried to push you off me”, is not met with any denial. Yet, the complainant’s evidence was that the only time she tried to push him off her was when he was engaging in penile-vaginal intercourse, and the applicant’s evidence was that at no time during the sexual encounter did the complainant push him off her.

30. [81]

    The jury were also entitled to take into account that the applicant made a number of attempts during the sexual encounter to initiate penile-vaginal sex despite the complainant either saying no or making clear she did not want that by her actions. Her evidence that, at one stage he went to get a condom from the wardrobe (which he denied), was another indication of the applicant’s intentions towards the complainant. It is also significant that the complainant correctly identified that the applicant kept his condoms in his wardrobe.

31. [82]

    Finally, the jury might have regarded the portion of the applicant’s ERISP set out at [45] above, as some support for the complainant’s account, and support for the disputed conversation, because the applicant said:

32. [83]

    Ground 1 should be rejected.

33. [84]

    Although part (a) of this ground concerned the failure to give an Admissions direction, and part (b) referred to consciousness of guilt, Mr Stratton submitted that the issues raised by those grounds flowed from the same matter, namely, the terms of text messages between the applicant and the complainant subsequent to the events of the night (contained in Exhibit A)

34. [85]

    In her closing address the Crown said this about the messages:

35. [86]

    When dealing, a little later, with the third element of the offence, that the applicant knew MA was not consenting, the Crown said:

36. [87]

    In her closing address, Ms Cunneen SC, for the applicant, said this about the messages:

37. [88]

    A little later, when dealing with MA’s evidence that she never consented, Ms Cunneen said:

38. [89]

    Putting aside that it was unfair and inappropriate for the submission of a set up to have been made when the matter was never put to the complainant in cross-examination, the submission made by Ms Cunneen was that, because of the sort of person he was, the applicant was saying sorry to the complainant for whatever it was that had upset her. Ms Cunneen’s focus was on the motives of the complainant, and avoided dealing with the Crown’s submission that the text messages amounted to an admission.

39. [90]

    At the conclusion of the addresses and before the summing up there was a discussion about directions that his Honour would need to give. During that discussion the following exchanges occurred:

40. [91]

    In the course of his summing up, the trial judge reminded the jury of the messages and the applicant’s evidence about what he meant by the messages. In relation to the submissions of counsel about the messages his Honour said this. First, in relation to the Crown:

41. [92]

    Nothing was said by his Honour in relation to the messages amounting to an admission or not constituting an admission.

42. [93]

    No application was made for any further directions concerning the messages amounting to admissions or not.

43. [94]

    The applicant submitted that, whilst no issue was taken with the suggestion by the trial judge in the exchange following closing addresses that the text messages fell short of an admission as that concept is defined, the decision not to give an admissions style direction had the unintended consequence of depriving the applicant of important protections attendant in a direction of that kind. The applicant submitted that when the Crown had squarely contended in her closing address that the text messages were admissions, the trial judge ought to have given the direction.

44. [95]

    The form of the direction it is said should have been given was provided by the applicant’s senior counsel at the hearing of the appeal.

45. [96]

    The proposed direction made provision for the Judge to set out the messages and to summarise the parties’ contentions about them. It was then submitted the following directions should have been given:

46. [97]

    The applicant pointed to what was said by Barwick CJ in Pemble v The Queen (1971) 124 CLR 107 at 117-118 and to what was said by Price J (Bathurst CJ and N Adams J agreeing) in DC v R [2019] NSWCCA 234 at [148] that:

47. [98]

    The applicant submitted that, in the Crown urging its interpretation of the text messages as an admission (the italicised portion of the Crown’s address at [85] above), the Crown was inviting consciousness of guilt reasoning. The applicant submitted that the Crown was suggesting that the applicant was lying when he gave his evidence putting forward exculpatory explanations for the texts sent.

48. [99]

    In Hewitt v R [2021] NSWCCA 227 the applicant was charged with sexual intercourse without consent. The offence occurred in circumstances where the complainant was asleep at the time of the applicant digitally penetrating her.

49. [100]

    The Crown relied on a text message sent by the applicant and a lawfully intercepted phone call where admissions were alleged to have been made. One ground of appeal alleged that the trial judge erred in failing to direct the jury as to how they could use the evidence of admissions the applicant made in the text message and the phone call. In its closing address the Crown had submitted that the jury would find that the message and the phone call amounted to the applicant apologising for what he did to the complainant, that is, digitally penetrating her rather than it simply being a general apology for whatever had happened to upset her.

50. [101]

    Four of the five reasons put forward by the applicant in that case as to why a direction should have been given are apposite in the present matter. They were:

51. [102]

    In rejecting the ground of appeal, Payne JA (with Garling and Wright JJ agreeing) said:

52. [103]

    In Latu v R [2023] NSWCCA 19 I said (Bell CJ and Fagan J agreeing):

53. [104]

    For similar reasons to those given in Hewitt leave should be refused in the present appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). A direction concerning admissions relating to the messages was sought by the Crown and resisted by senior counsel for the applicant, on the basis that the messages did not amount to admissions. For the reasons given in the cases collected in Hewitt at [78] and Latu at [55], it can be inferred that in the circumstances of the trial, very experienced senior counsel saw no risk to the accused in resisting the giving of a direction, and that there was, therefore, no miscarriage of justice.

54. [105]

    Tactical reasons can be inferred from Ms Cunneen’s address and from her conduct of the trial. Ms Cunneen did not cross-examine the complainant at all about the post-event messages, not even to suggest to her that she (the complainant) had sent them to set up the applicant, although she made a submission to that effect in her closing address. Her submission to the jury (at [87] above) was that the accused was apologising for hurting her by making her feel uncomfortable. Further, Ms Cunneen had emphasised that MA’s messages nowhere asserted that the parties had engaged in penile-vaginal sex. That supported her submission that the accused was expressing regret for having upset MA for the things that were done consensually. That was linked also with her submission that the messages sent by MA were a setup to extract an apology of some sort from the applicant. For the judge to have given a direction on the basis that the messages were admissions would have focused attention on penile-vaginal intercourse which the applicant said never occurred.

55. [106]

    The messages, said to be admissions, were only one part of the Crown case. As the Crown prosecutor said in her closing address:

56. [107]

    The messages constituted a small part of the lengthy addresses of both the Crown and, particularly, Ms Cunneen. This, when taken with senior counsel’s decision, not only not to ask for a direction but to actively resist such a direction being given, is strong support for the absence of a miscarriage of justice.

57. [108]

    Consciousness of guilt reasoning involves the Crown suggesting that an accused person told a lie, did something or failed to do something because they appreciated that they were guilty of the offence charged and wished to keep the guilt hidden: Edwards v The Queen (1993) 178 CLR 193 at 209.

58. [109]

    The Crown prosecutor introduced this part of her closing address by saying this:

59. [110]

    The prosecutor then dealt with a number of areas of the applicant’s evidence before coming to the messages, being the portion set out at [85] above, including the italicised portion, said now by the applicant to invite consciousness of guilty reasoning.

60. [111]

    Merely submitting that the applicant lied about some matter in the witness box does not invoke consciousness of guilt reasoning. The Crown prosecutor nowhere suggested to the jury that they should use his dishonest evidence as corroborative of the prosecution case. The submission dealt only with general credibility, and how the jury should approach the evidence, as appears from what the prosecutor said a little later:

61. [112]

    No Edwards direction was sought by senior counsel for the applicant. That was probably because, quite reasonably, senior counsel did not consider that the prosecutor was inviting consciousness of guilt reasoning. In my opinion, the submission of the Crown did not invite consciousness of guilt reasoning. No miscarriage of justice was occasioned.

62. [113]

    I would refuse leave to appeal pursuant to r 4.15 in respect of ground 2 in both respects.

Conclusion

1. [114]

   I propose the following orders:

   1. (1)

      With respect to ground 1:

   2. (2)

      With respect to ground 2, refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [115]

   I have read in draft the reasons of McNaughton J concerning the Crown’s appeal against sentence. I agree with her Honour’s reasons and the order her Honour proposes.

3. [116]

   HAMILL J: have the advantage of reading the draft judgments of Davies J and McNaughton J. I am grateful for their Honours’ comprehensive analysis of the evidence and issues and agree with the orders proposed.

4. [117]

   Upon a review of the record of the trial and, notwithstanding the cogent arguments advanced by Mr Stratton SC and Mr De Brennan, I am not persuaded that the verdict was unreasonable or unable to be supported having regard to the evidence.

5. [118]

   The accounts provided by the complainant, in the hours and days after the incident, were reasonably consistent and quite compelling. As far as one can tell at this distance, so was her evidence in Court. I have considered the versions of events provided by the applicant and, while they were not implausible, there was at least one significant inconsistency between the version he provided to the police and the evidence he gave before the jury. This is set out by Davies J at [47]-[50] and concerns the applicant’s memory of whether digital penetration occurred. I have considered the evidence of the applicant’s good character both in terms of his credibility and the likelihood that he would offend in the way alleged.

6. [119]

   In making these assessments, I have borne in mind the advantages enjoyed by a jury as described by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493-494 (“M v The Queen”) and more recently in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]-[38]. Any doubt I may have entertained about the applicant’s guilt from reading the transcript and reviewing the exhibits is readily resolved by those advantages and an acknowledgment of the jury’s constitutional role in deciding the factual issues in serious criminal cases. I should say that I do not experience the kind of “anxiety and discomfort” about the conviction described by Sully J in this Court which led to the successful appeal in M v The Queen (at 491, 495). I have nothing to add to the thorough review of the evidence undertaken by Davies J and I agree with his Honour’s observations regarding the evidence. Accordingly, I would not uphold ground 1.

7. [120]

   I agree with the reasons provided by Davies J concerning the rejection of the second ground of appeal against the conviction.

8. [121]

   I agree with the reasons of McNaughton J for rejecting ground 1 of the prosecution appeal against the sentence.

9. [122]

   I am also in substantial agreement with her Honour’s reasons for upholding grounds 2 and 3 although I have had more difficulty in deciding whether Judge North’s ultimate finding as to the objective seriousness of the offence was wrong and whether the penalty imposed was plainly unjust or unreasonable. However, I agree that the sentencing Judge fell into clear error by taking into account the applicant’s mental health issues in assessing the objective seriousness of the offence: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [85], [90]-[96] and R v Eaton [2023] NSWCCA 125 at [46]-[52]. In fairness to his Honour, neither of those decisions had been delivered when Judge North sentenced the applicant. I also agree with McNaughton J that the lack of physical injury did not inform the objective gravity of an offence under s 61I Crimes Act 1900 (NSW), given the existence of the aggravated offence in s 61J(2)(a). Accordingly, the finding made by Judge North of the objective seriousness of the offence was infected with error. His Honour took into account irrelevant considerations.

10. [123]

    I also indicate my express agreement with McNaughton J’s analysis of the judgments in Bussey v R [2020] NSWCCA 280 (“Bussey”) and R v Gerard Cortese [2013] NSWCCA 148 and their application to the circumstances of the present case. The increasing prevalence of internet dating sites does not change the law with respect to consent and the criminal sanctions that apply when an offender does not respect the limits clearly expressed by their sexual partner. As Harrison J said in Bussey (at [97]) “[o]nce it is accepted that no means no, that should be the end of the matter” and at [95] “the notion that no means no” should not be depreciated.

11. [124]

    The victim in the present case communicated clearly that she would not, and did not, consent to penile-vaginal intercourse. She did so in the course of the messaging leading up to the evening of 18 April 2020 and personally during that evening. Her consent to other sexual activity did not diminish the gravity of the offending. She was entitled to place a limit on the sexual activity in which she participated, and her choice should have been respected. The jury accepted that the applicant knowingly ignored her clearly articulated limits. While the sentencing Judge was correct to distinguish the factual circumstances from more serious instances of an offence under s 61I, the offence remained serious and attracted a maximum penalty of 14 years with an associated standard non-parole period of 7 years.

12. [125]

    I have consulted the statistics maintained by the Judicial Commission of New South Wales. My interrogation of the database disclosed more cases than the graphs provided at the hearing. Between 24 September 2018 and 30 September 2022 there were 279 sentences imposed under s 61I of which only 4.3% (12 cases) were dealt with by the imposition of a Community Correction Order. Of those 12 cases, five followed a plea of not guilty and three involved offenders aged between 20 and 30 years. Based on the raw statistics, little more is known about those cases. However, the survey demonstrates, consistent with the statistics provided by the appellant and referred to by McNaughton J at [200], that the imposition of a penalty other than imprisonment is rare for offences under s 61I. The same applies to the statistics concerning offences dealt with before the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. Of the 123 cases dealt with between January 2008 and October 2011, 108 (87.8%) received full time sentences of imprisonment. Of the remainder, 13 offenders were dealt with by way of a suspended sentence, a sentencing option no longer available. Only two offenders in that period escaped a sentence of imprisonment altogether.

13. [126]

    Taking into account all relevant matters, including the objective seriousness of the offence and the applicant’s lack of previous offences and other personal circumstances, I agree with the conclusion of McNaughton J that the penalty settled upon by Judge North was manifestly inadequate.

14. [127]

    I also agree, for the reasons given by her Honour, that this is an appropriate case in which the Court should exercise its discretion not to intervene.

15. [128]

    MCNAUGHTON J: I have had the advantage of reading the draft judgment of Davies J in the conviction appeal. I agree with his Honour’s proposed orders. Having considered the evidence myself, I am of the view that the jury’s decision to convict the applicant on the charge was not unreasonable. My reasons for reaching that conclusion accord with those set out by Davies J.

The Crown appeal

1. [129]

   As noted by Davies J, the Crown appeals against the sentence imposed upon the applicant (the respondent in the Crown appeal) on the following grounds:

2. [130]

   The respondent was sentenced to a Community Correction Order for two years pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), subject to a number of conditions including that he complete 300 hours of community service work in the two-year period and he continue to participate in his mental health program as directed. The charge, pursuant to s 61I of the Crimes Act, carries a maximum penalty of 14 years’ imprisonment with a standard non-parole period of 7 years.

3. [131]

   Crown appeals against sentence are brought for the primary purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The Crown needs to show the sentencing judge has made an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (“House”); see CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 (“CMB”) at [54] (Kiefel, Bell and Keane JJ). Even if error is established, the court is required to consider whether the Crown’s appeal should nonetheless be dismissed in the exercise of its residual discretion (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). The Crown must “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting R v Hernando [2002] NSWCCA 489 (“Hernando”) at [12]; (2002) 136 A Crim R 451).

4. [132]

   It was also observed in Green that cases might arise where the court concludes that the inadequacy of the sentence is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such a case, a court is justified in interfering with the sentence: Green at [42] (French CJ, Crennan and Kiefel JJ).

5. [133]

   Here it is contended by the Crown that the sentence is “plainly unjust”, being so far below the range of sentences that could justly be imposed and is thereby likely to undermine public confidence in the proper administration of criminal justice. The Crown also contend that a further purpose of its appeal is to permit guidance to be provided to sentencing judges concerning the approach to sentencing in a case of sexual assault, particularly in circumstances where the offence occurs within a context of other consensual acts.

Remarks on Sentence

1. [134]

   In the remarks on sentence, the sentencing judge set out the facts at some length. His Honour noted that when the respondent and the complainant first lay on the bed together, the complainant allowed him to insert his index finger into her vagina for approximately 20 seconds. When the respondent attempted to have the complainant touch his erect penis, she stated, “No, that’s not happening”. He then withdrew his hand from inside her and rolled on to his back.

2. [135]

   In the course of setting out the facts, the sentencing judge included the various acts to which the complainant consented noting “some at time were ‘enjoyable’”.

3. [136]

   The sentencing judge then set out the following:

4. [137]

   Then followed an account of a consensual act after the complainant had been to the bathroom, hoping to leave, but her bag and keys were next to the bed, so she returned. The sentencing judge included the following account:

5. [138]

   This occurred for approximately three minutes. He got off the bed.

6. [139]

   Later in the evening the complainant said she needed Panadol and she had a headache and told him she wanted to leave and sleep in her own bed and he did not stop this.

7. [140]

   The remarks then recorded the unsuccessful steps taken by the complainant to contact friends about marijuana consumption and driving, and then referred to the complaint made to her friend Jessica Difazio who encouraged her to go to the hospital. The complainant contacted the Violence/Sexual Assault Helpline and later attended North Shore Hospital where testing was conducted. The sentencing judge noted that following the testing of the swabs, while no semen was found, the respondent’s DNA was detected in the high and low vaginal swab.

8. [141]

   The sentencing judge then set out that when the respondent was arrested on 12 June 2020, he denied the offending:

9. [142]

   The sentencing judge also referred to the complainant’s victim impact statement, noting it was “quite clear from listening to and re-reading this victim impact statement that the complainant feels consumed by the events of this particular night.”

10. [143]

    The sentencing judge proceeded to consider the seriousness of the offence, first noting the significance of the maximum penalty and the standard non-parole period. His Honour also noted that the “objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders”. Rather it is to be determined wholly by reference to the nature of the offending.

11. [144]

    The sentencing judge then stated: “It is therefore necessary to look at the whole of the surrounding circumstances to assess the seriousness of the offence.” Included in the remarks were extracts from both R v Gavel [2014] NSWCCA 56 at [97]; (2014) 239 A Crim R 469 (“Gavel”) and Greenwood v R [2014] NSWCCA 64 at [29] to the effect that it is wrong to rank forms of sexual intercourse in some hierarchy of seriousness, and that each case involves a consideration of all of the relevant circumstances including the nature of the sexual intercourse involved. His Honour identified that “an important step” in determining the appropriate sentence for a sexual assault is where it lies on the spectrum of seriousness, citing Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 (“Ibbs”).

12. [145]

    His Honour stated:

13. [146]

    In the course of the remarks, the sentencing judge set out other findings relevant to the objective seriousness of the offending:

    1. (1)

       The respondent continued the intercourse for a minute to a minute and a half after the complainant made it clear she was not consenting.

    2. (2)

       In respect of the disputed evidence concerning the respondent saying “You know I could just put it in you, right?”, the sentencing judge determined:

    3. (3)

       The standard non-parole period is a legislative guidepost but does not have a determinate significance in sentencing the respondent. It strictly applies to matters found to be in the mid-range of objective seriousness following a plea of not guilty.

    4. (4)

       The offence did not involve threats, force, physical infliction of pain, humiliation, or cruelty. These matters (the lack of threats or physical injury) as well as the respondent’s withdrawal before ejaculation, were relevant to the objective seriousness.

    5. (5)

       There were no aggravating features. Specifically, there was no “actual breach of trust although the jury verdict means that in his own home when told to stop by the complainant he did continue for a minute to a minute and a half before stopping, withdrawing, and not ejaculating”; and the harm caused to the complainant did not exceed the harm presumed from the commission of the offence.

14. [147]

    The sentencing judge found the objective seriousness of the matter fell “just above low range for an offence of this type.” At another point in the remarks, his Honour noted:

15. [148]

    As to the respondent’s subjective case, the sentencing judge found that he was a person of prior good character, for whom this conduct was an “aberration”. He was affected by his parent’s separation but was not exposed to domestic violence, sexual or physical abuse. He had been employed as a glazier and retained his employment despite his employer being aware of the allegations. The respondent had been diagnosed with anxiety and depression and had a developmental language disorder along with auditory processing disorder and stuttering. He had undertaken treatment since the offending which was appropriate, and which assisted the court regarding his prospects of rehabilitation.

16. [149]

    Whilst he had not expressed remorse, the sentencing judge found the respondent’s prospects of rehabilitation were solid, on the basis that he had strong family support, full-time employment and had not re-offended whilst on strict conditional bail. There were 15 character references which were highly supportive of the respondent despite the referees knowing the nature of the charge. Given he was only 26 years old at the time of the offending, rehabilitation was an important consideration on sentence. The respondent’s mental health issues reduced the need for specific deterrence and made him a less appropriate vehicle for general deterrence, albeit not to a great extent.

17. [150]

    As to the issue of a custodial sentence, the sentencing judge found:

    1. (1)

       The case fell into the category of “an exceptional case” having regard to the “full context of what occurred surrounding and including the commission of this offence.”;

    2. (2)

       The respondent would find custody more difficult to some extent but not a great extent because of his age, good character, the nature of the offence and his mental health issues;

    3. (3)

       There was considerable time between arrest and sentencing, noting some of which was due to the respondent’s choice of pleading not guilty. He had not re-offended in that time, but he had been left with the suspense and uncertainty as to his ultimate fate, but the complainant had been in a similar position of suspense and uncertainty;

    4. (4)

       His Honour was satisfied that the threshold in s 5 of the Crimes (Sentencing Procedure) Act had not been crossed, and a non-custodial sentence was appropriate.

Ground 1 in Crown appeal: Failure to determine the basis for the respondent knowing the complainant did not consent

1. [151]

   The Crown submits that where consent is an issue on sentence, it is wrong not to make a finding of the basis on which the issue was resolved: R v Shortland [2018] NSWCCA 34 at [79]; R v Alcazar [2017] NSWCCA 51 at [44]-[45]. His Honour did not make any finding of the basis upon which he resolved the respondent’s knowledge of the lack of consent, by reference to s 61HE(3) Crimes Act or otherwise.

2. [152]

   The Crown’s position at trial was that the respondent had actual knowledge the complainant was not consenting on the basis of the following:

   1. (1)

      The complainant’s text messages and statements in person to the respondent stating she did not intend to have sexual intercourse (by inference, penile/vaginal intercourse).

   2. (2)

      The respondent’s admission in his ERISP to the effect that he knew the complainant was unwilling to have penile/vaginal intercourse.

   3. (3)

      The respondent’s admission in his ERISP that he had said to the complainant “Don’t worry, I won’t put it in you.”

   4. (4)

      The sentencing judge summed up to the jury on the basis of actual knowledge and also on the alternative basis pursuant to s 61HE(3)(c) Crimes Act (that is, that the respondent had no reasonable grounds for believing the complainant consented).

   5. (5)

      As set out by Davies J, the respondent’s case at trial was that the penile/vaginal intercourse did not occur.

3. [153]

   The Crown’s position at sentence was that the respondent had committed the offence with actual knowledge that the complainant was not consenting.

4. [154]

   The respondent’s position at sentence was:

   1. (1)

      In written submissions, an alternative possibility was advanced that that complainant had “revoked” consent after the intercourse had commenced;

   2. (2)

      In written and oral submissions, it was put that the respondent was reckless as to the complainant’s lack of consent.

5. [155]

   The Crown’s submission on the appeal was that the sentencing judge should have found, on the basis of all the evidence, that the respondent knew that the complainant did not consent to sexual intercourse. This included uncontested evidence not mentioned by the sentencing judge including the text messages that the respondent had sent to the complainant, apologising, explaining that he had been “very attracted to [her]” and “really into [her]”.

6. [156]

   On the appeal, the respondent contended that it was implicit in the sentencing judge’s reasoning that he made a finding that the respondent knew the complainant was not consenting to the sexual intercourse. There was nothing which suggested the sentencing judge made the finding only on the basis of recklessness – such a word does not appear in the remarks. Nor, given the respondent’s denial of any penile/vaginal intercourse at trial, could it have been a basis for the mental element of the offence.

7. [157]

   The relevant subsections of s 61HE are in the following terms:1

8. [158]

   At trial, the respondent denied having penile/vaginal intercourse with the complainant. By its verdict, the jury found that it occurred, and that it occurred without consent. On sentence, the sentencing judge was obliged to resolve a contested issue as to knowledge of the absence of consent on the part of the respondent.

9. [159]

   As noted above, at trial, the issue of knowledge of the absence of consent had been summed up to the jury on the basis of actual knowledge pursuant to s 61HE(3)(a), and also on the alternative basis pursuant to s 61HE(3)(c) that the respondent had no reasonable grounds for believing that the complainant consented. Recklessness was not left to the jury. This may be explicable in light of the defence being that the act of penile/vaginal intercourse did not occur.

10. [160]

    Recklessness (pursuant to s 61HE(3)(b)) was raised on sentence by Senior Counsel for the respondent in both written submissions and orally. Even though recklessness had not been before the jury, it was put on the respondent’s behalf on sentence that the respondent could be sentenced on the basis (at least for part of the time the offence was being committed) that he was reckless as to whether the complainant consented to the penile/vaginal intercourse. The basis of that submission appeared to be that the sentencing judge could find that the offence was essentially spontaneous (at least initially), that the respondent was reckless as to consent initially (for the first ten seconds), and then continued after the complainant had clearly said no (for a minute to a minute and a half). It was also put on behalf of the respondent that he could be sentenced on the basis of revocation of consent. That is, that there was initial consent which was revoked after the first ten seconds.

11. [161]

    Given the manner in which the trial was conducted, it is not clear why recklessness was raised on sentence. The issue of the respondent’s knowledge or belief of lack of consent was essential to proof of one of the elements of the offence. The jury was only directed to reason as to the issue of consent on the basis of either the respondent’s actual knowledge or the respondent having no reasonable grounds for believing that the complainant consented. The sentencing judge was bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”) at [5]. It is to be accepted that the jury reached its verdict having reasoned consistently with properly framed judicial directions, although their process of reasoning did not have to be unanimous: Cheung at [7]; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 at [57(6)]; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]. Accordingly, the sentencing judge was bound to determine the respondent’s mental state on one of the two bases before the jury, and not recklessness.

12. [162]

    As to recklessness, given that it was not before the jury, the lack of consideration of that issue by the sentencing judge in the remarks about recklessness is not indicative of error. It can be noted that given it was raised at sentence (albeit erroneously) it would have been preferable for something to have been said, by the sentencing judge in his remarks, but failure to do so is not an error.

13. [163]

    However, there was still a determination to be made on sentence as to which of the two bases left to the jury on knowledge was found by the sentencing judge to be the appropriate basis for sentencing – that is, whether the respondent had actual knowledge of the complainant’s lack of consent or whether knowledge was found on the basis that the respondent had no reasonable grounds for believing the complainant was consenting.

14. [164]

    Again, it would have been desirable, given the circumstances, for the sentencing judge to set out his explicit finding on knowledge. However, in my view, it is implicit in the sentencing judge’s remarks that he found the respondent had actual knowledge of the complainant’s lack of consent.

15. [165]

    The following can be noted. As stated above, the Crown’s position at trial and at sentence was that the respondent had committed the offence with actual knowledge that the complainant was not consenting.

16. [166]

    Albeit not framed in terms of the respondent’s actual knowledge of the complainant’s lack of consent, there are multiple references in the remarks on sentence to lack of consent (including the clarity of that lack of consent) on the part of the complainant.

17. [167]

    For instance, the sentencing judge stated:

18. [168]

    In light of all of the circumstances, including the rejection by the jury of the respondent’s defence at trial, the manner in which the prosecution case was run at trial, the Crown’s submission at sentence as to actual knowledge, and the facts found by the sentencing judge as highlighted above, it is implicit that his Honour made a finding of actual knowledge of lack of consent on the part of the respondent.

19. [169]

    Ground 1 is not made out.

Ground 2 in Crown appeal: The sentencing judge erred in the assessment of the objective seriousness of Count 1

1. [170]

   On the appeal, the Crown contended that it was not reasonably open to characterise the offence as just above the low range of objective seriousness. The sentencing judge erred, the Crown submitted, in making both specific errors of principle and also in reaching the ultimate conclusion that the offence was just above the low range. The Crown contended that the offence was a serious one, involving penile/vaginal intercourse, and was committed in circumstances where the respondent had reassured the complainant moments before the intercourse “Don’t worry, I won’t put it in”. The offending was sustained even in the face of the physical resistance by the complainant and her repeated requests for the respondent to stop.

2. [171]

   The Crown contended that the sentencing judge was in error in finding that the consensual activity before and after the assault made the case an “unusual one” and was in error in finding that it impacted upon the objective seriousness in any mitigating way. In doing so, the sentencing judge made unjustified and impermissible assumptions about the effect of the offence upon the complainant: Bussey v R [2020] NSWCCA 280 (“Bussey”) at [95] (Harrison J, Hoeben CJ at CL and Bellew J agreeing); Kiss v R [2021] NSWCCA 158 (“Kiss”) at [80]. Such a finding “depreciates the notion that no means no, whatever other factors may be involved”: Bussey at [95].

3. [172]

   The Crown also contended the sentencing judge erred in taking into account the respondent’s mental health issues in determining the level of objective seriousness of the criminal offending. This was not a case where a mental impairment may be relevant, such as where it is relevant to an element of a crime (such as manslaughter involving substantial impairment) or taking place during an episode of psychosis but falling short of circumstances giving rise to a defence: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [63]-[96]. The objective seriousness of a sexual assault would not be reduced due to an offender’s depression, even if that sometimes warranted a reduction in moral culpability: DS v R; DM v R at [96]. The Crown submitted the respondent’s history of depression and anxiety did not impact the assessment of the objective seriousness of the offence.

4. [173]

   Another specific error alleged by the Crown was the sentencing judge’s consideration of the absence of physical injury to the complainant (which if there had been some would have constituted actual bodily harm, and the aggravated form of the offence pursuant to s 61J of the Crimes Act).

5. [174]

   Further, the Crown contended the sentencing judge erred in considering the fact that the respondent (eventually) withdrew before ejaculation was relevant to assessing objective seriousness. In the circumstances of this case, it was not a matter which mitigated the objective gravity of the offending: Dawson v R [2013] NSWCCA 61 at [74]; Martin v R [2015] NSWCCA 6 at [59].

6. [175]

   The respondent on the appeal argued that the Crown submission is contrary to what was stated by Beech-Jones J (Hoeben CJ at CL and Harrison J agreeing) in R v Gerard Cortese [2013] NSWCCA 148 (“Cortese”) at [55]:

7. [176]

   The respondent points to the different factual circumstances in Bussey and Kiss which are authority for the proposition that the fact that an offender and a complainant were in the past, or even at the time of the offence, in a relationship, is not a mitigating factor. The respondent contends they are not apposite to the facts of this case where there were consensual sexual acts between the complainant and the respondent immediately before and immediately after the offending conduct.

8. [177]

   The respondent on the appeal pointed to submissions made by Senior Counsel at the sentencing hearing to the effect that the offending in this case was “just one extra step” and “what could be called a fleeting extra sexual activity entered into by an offender which has not been consented to.” The respondent on the appeal argued that “far from making unjustified and impermissible assumptions about the effect of the offence on the victim, the sentencing judge merely acknowledged the unique factual matrix of this case.”

9. [178]

   As to taking account of the respondent’s mental health in determining the objective seriousness, the respondent contends that in truth the sentencing judge’s chief focus was the respondent’s mental health as it related to general and specific deterrence, and that the asserted erroneous reference was at worst merely an infelicitous expression of no consequence.

10. [179]

    As to taking into account the lack of physical injury, the respondent contends that this is permissible according to Ibbs, referred to by his Honour, where the following principle is set out at 452:

11. [180]

    As noted, this offence occurred in the context of a meeting brought about by the use of a social media application (or “app”) known as Tinder. The advent of social media apps in relation to dating (such as Tinder) in recent years has contributed to the changing of social norms in relation to dating and the course of sexual relationships, at least for certain sections of the community. Whilst no doubt there have always been situations involving people who have engaged in consensual sexual activity with others they do not know or barely know, it is fair to observe that social media apps have increased markedly the available options for communication between people and have made it easier for those who so wish, to engage with others in the community in ways previously unavailable. As this historical development is relatively recent, there is little if any Australian case law similar to the facts of this case. That does not make it a “unique factual matrix” as stated by the sentencing judge and as contended on behalf of the respondent. Rather it simply shows that matters involving these types of factual circumstances have yet to come before the intermediate appellate courts of this country in any number. The only potentially less common aspect to this matter is perhaps the fact that Sydney (the city where the offence occurred) was, at the time of the offence, in “lockdown” due to the COVID-19 global pandemic such that meeting in public was not an option for people wishing to explore the potential of a romantic and/or sexual relationship with a new person. It is conceivable that relationships which perhaps may have developed more slowly in more ‘normal’ times, were, by force of circumstance, diverted into the more intimate space of a person’s residence from the very beginning in order to circumvent being in breach of the lockdown laws.

12. [181]

    To recognise that slightly distinctive aspect is not to say, however, that the law in relation to consent to sexual intercourse changed in any way at that time. The fundamental principles underpinning the criminalisation of sexual assault remained unchanged, with each case to be decided on its own facts. Stereotypes, prejudices, or preconceptions of what is and is not appropriate behaviour should have no part to play in the finding of guilt, or in the sentencing exercise. [1] It is the evidence in the particular case which remains the only basis upon which issues surrounding consent should be determined.

13. [182]

    In this matter, it is uncontested that there were many consensual acts of an intimate nature prior to the offence, and some consensual activity following the offence (albeit the evidence shows that the consent provided after the offence was provided in a pragmatic rather than an enthusiastic way, with the complainant saying she consented because she did not want to anger him).

14. [183]

    However, the facts in this case also involved a very clear and unambiguous indication, conveyed more than once by the complainant, that penile/vaginal intercourse was not ever to be an option during the course of the night’s intimate activities. So much was accepted (at least at one point) in the course of the closing address made on the respondent’s behalf to the jury:

15. [184]

    It is clear from the verdict that the jury must have accepted the clarity of the boundaries set that evening.

16. [185]

    Whilst it is true that the facts of Bussey are slightly different from the facts here, the fundamental principles set out there are entirely apposite. Those who engage in sexual activity with another person should be free to set boundaries around what is and is not acceptable in a particular sexual encounter. The facts of this case were pellucidly clear that whilst other intimate sexual contact was agreed to and some appeared to be the subject of iterative negotiation as the evening progressed, penile/vaginal intercourse was never part of what the complainant was prepared to engage in with the respondent on that evening. That was explicit. That did not change. That boundary was repeated and reinforced by the complainant during the evening, and appeared, even on the respondent’s evidence, to be well understood by him. As in all other circumstances involving sexual encounters, consent is required for each activity whether it be an isolated act or set of activities, at whatever point that act or acts occur.

17. [186]

    Further, when considered in its full context, Cortese does not assist the respondent. I agree with the Crown’s submission that the principle set out there is consistent with the proposition that where there is some prevarication or at least initial consent, the ensuing offence may be considered less serious only because it may impact the finding made about the state of mind of an accused. Prevarication or initial consent may be something that affects the objective seriousness because it may go perhaps to a finding of recklessness as opposed to a finding of actual knowledge. The passage from Cortese should not be read as suggesting that, where a complainant is clear and unambiguous about the acts that they do not want to participate in, the fact that they chose to participate in other acts mitigates the objective seriousness of the offending act.

18. [187]

    In the circumstances of this case, it is wrong to characterise the offence as comprising “just one extra step” or “a fleeting extra sexual activity”. To the contrary, the offending act comprised unprotected penile/vaginal intercourse, with lack of consent communicated clearly to the respondent prior to its commencement, with attendant risk of disease and pregnancy. Further, after the initial ten seconds the offence continued in the face of palpable and active opposition for about a minute and a half.

19. [188]

    I further agree with the Crown that in the circumstances of this case, the lack of physical injury (in circumstances where physical injury involving actual bodily harm would have constituted a more serious offence) did not mitigate the seriousness of this offence. Ibbs does not stand against such a proposition.

20. [189]

    In addition, given the circumstances of this case, where during the offence the complainant was actively pushing the respondent off her and telling him to stop during the offending activity, the respondent’s withdrawal before ejaculation should not have been considered by the sentencing judge to mitigate the seriousness of the offence.

21. [190]

    It also appears, for the reasons given by the Crown on the appeal, that the sentencing judge erroneously took into account the respondent’s mental health issues in determining the level of objective seriousness of the criminal offending.

22. [191]

    Ground two of the Crown appeal is made out.

Ground 3 in Crown appeal: The sentence pronounced is manifestly inadequate

1. [192]

   The Crown pointed to the following factors:

   1. (1)

      This was a sentence following a trial;

   2. (2)

      The respondent has consistently maintained his innocence including challenging the conviction in his own appeal;

   3. (3)

      There was, and clearly remains, no remorse.

2. [193]

   The sentencing judge found that this was an “exceptional case”, with this finding based only on the “full context of what occurred surrounding and including the commission of this offence.” His Honour also referred to it being an “unusual” case where the offence occurred “in the midst of other consensual sexual conduct both before and after the offence.”

3. [194]

   The Crown contended his Honour erred in this characterisation for the reasons outlined in relation to Ground 2. Further, in finding this was an “exceptional case”, the Crown submitted that this was based to a considerable degree on the erroneous finding of objective seriousness being just above the low range – also infected by error as set out in relation to Ground 2.

4. [195]

   The Crown submitted that the evidence clearly showed that the respondent had actual knowledge that the complainant was not consenting, and that factor significantly increased his moral culpability. His persistence in the offending in the face of the complainant’s physical resistance, as well as her verbal entreaties to stop was also significant in considering his moral culpability. The Crown pointed out that the sentencing judge did not refer to the respondent’s moral culpability at all.

5. [196]

   The Crown pointed to the fact that the form of the sexual intercourse, while not determinate, was a significant factor – being penile/vaginal intercourse. The complainant was physically dominated with the respondent’s body weight and she tried to physically resist him during the offence.

6. [197]

   The Crown also contended that whilst the duration of the offending was not long, a short duration did not reduce the objective seriousness: Kelly v R [2022] NSWCCA 189 at [33]; R v Lau [2022] NSWCCA 131 at [82]; R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]; Fisher v R; R v Fisher [2021] NSWCCA 91 at [85]-[87].

7. [198]

   The Crown also submitted that the complainant and the respondent being of a similar age did not mitigate the objective seriousness of the offence given the non-consensual intercourse: R v Shortland [2018] NSWCCA 34 (“Shortland”) at [15] and [87].

8. [199]

   The Crown further pointed to the unremarkable, albeit positive, subjective case of the respondent. The respondent had the support of his family and his community. There were some mental health issues, but no causal nexus between that and the offending. The material before the sentencing judge indicated moderate prospects of reoffending. Notwithstanding that evidence, the sentencing judge found that the respondent’s rehabilitation had commenced and was ongoing, and his prospects were “solid”.

9. [200]

   The Crown pointed to sentencing statistics which showed the rarity of non-custodial sentences being imposed for s 61I offences. Between September 2018 and December 2021, only 4 out of 103 cases involved the imposition of a Community Correction Order. Three related to offenders aged between 18 and 20 (attracting sentencing principles applicable to young offenders), and the fourth involved an offender over 50 years old sentenced on the basis of an honest (but unreasonable) belief about consent. All others sentenced following trial received full time custodial penalties.

10. [201]

    Finally, the Crown noted the comment in Shortland at [29] (Basten JA, R A Hulme J agreeing in this respect):

11. [202]

    The respondent on the appeal contended the approach taken by the sentencing judge was justified and properly reflected his assessment of the objective gravity of the offence and the strong subjective case of the respondent.

12. [203]

    The respondent submitted that the short duration was clearly a relevant consideration. The respondent again pointed to Cortese, and the relevance of the surrounding consensual acts. The similar age of the complainant and respondent (noting that the complainant was older) was relevant as going to the immaturity of the respondent and the absence of a relative power imbalance. Further, far from being unremarkable, the respondent’s subjective case established excellent prospects of rehabilitation. A combination of factors including his good character, his mental health issues, his good working history, his strong family and community ties, his treatment and prospects of rehabilitation, and his behaviour over a length of time whilst on bail combined to indicate the sentence was not manifestly inadequate.

13. [204]

    The respondent referred the Court to two cases, Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 (“Burton”) and R v Francis [2020] NSWDC 870 (“Francis”), which were said to be more serious cases yet both attracted non-custodial sentences. Burton involved a mature man who accompanied his inebriated niece at a wedding into a room and performed cunnilingus. Francis involved a man in his 50s who had undressed and then had sexual intercourse with a woman who was asleep.

14. [205]

    In all the circumstances, the respondent contended that the sentence was not manifestly inadequate.

15. [206]

    The respondent conceded on the appeal that the appropriate finding was that the respondent knew that the complainant was not consenting to penile/vaginal intercourse. In light of that knowledge, as well as the factors indicating the objective seriousness of the offending as discussed under Ground 2, the plea of not guilty and the lack of any remorse, I am of the view that the sentence is manifestly inadequate.

16. [207]

    The two cases submitted by the respondent as constituting more serious examples did not assist him. This is for a number of reasons. First, Burton involved a plea of guilty in the Local Court, entitling him to a 25% discount. The nature of the intercourse was cunnilingus for 15 seconds. Mr Burton’s state of mind was recklessness rather than actual knowledge and there were immediate admissions to the police in an interview. There was evidence of his distress and remorse. Second, in relation to Francis, although this was a finding of guilt following a trial, the only evidence of the act in that case was that the offender had been performing cunnilingus on the victim for under a minute and then observed she was asleep. It did not involve knowledge of lack of consent or any active resistance by the victim. There was evidence of remorse and there was evidence of traumatic events in the offender’s background including that he had been a victim of sexual assault when he was 15, his parents had recently died, and he had sole custody of his child as a result of a violent relationship. He also had a diagnosis of autism.

17. [208]

    As stated by the High Court in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]:

18. [209]

    The problem with only pointing to two cases (one of which was not even an intermediate appellate court decision) is that they cannot properly be regarded as providing a sentencing pattern. As stated by the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25]: “At best they were representative of particular aspects of the spectrum of seriousness” (footnote omitted).

19. [210]

    Further, when pointing to the sentence in Francis, it was stated by Senior Counsel for the respondent on the Crown appeal that “[s]ignificantly, there was no Crown appeal.” That submission does not withstand scrutiny. No inferences as to the appropriateness or otherwise of a sentence in any individual first instance decision can be drawn from the failure by the Crown to lodge a Crown appeal. Whether or not a Crown appeal is lodged against a particular first instance decision cannot be seen to be any sort of an endorsement by the prosecution authorities of a particular sentencing outcome. Many factors are taken into account in any decision to lodge a Crown appeal, not only the prosecution assessment of manifest inadequacy of a sentence.

20. [211]

    While Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303], endorsed by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], referred to “first instance judges” in the following passage: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts” (emphasis added), this was stated in the context of reviewing “sentencing patterns” and not in the context of an individual first instance judge’s decision.

21. [212]

    Accordingly, for all of these reasons, the two sentences pointed to by the respondent are of little utility in resisting the Crown’s contention of manifest inadequacy.

22. [213]

    In summary, given the respondent’s knowledge of the complainant’s lack of consent, the nature of the sexual intercourse being unprotected penile/vaginal intercourse, the persistence in the conduct despite the active resistance of the complainant (after the first 10 seconds) for up to a minute and a half, the plea of not guilty, and the lack of remorse, the Community Correction Order imposed by the sentencing judge is manifestly inadequate.

Residual discretion

1. [214]

   As noted above at [131], the Crown must “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting Hernando at [12]). Whilst the primary purpose of an appeal by the Crown against sentence is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”, such guidance “should not come at too high a cost in terms of justice to the individual” (Green at [1], [43]).

2. [215]

   Received on the appeal was an affidavit from the respondent’s mother outlining the ongoing mental health difficulties experienced by the respondent, the respondent’s continued adherence to attending work, his continued engagement with his supervisor on the Community Correction Order, his performance of his community service hours around a full working week (including many early starts and some night work) and that by the time of the hearing of the appeal on 18 October 2022, he would have completed approximately 95 hours. There was also evidence that he has been assessed as a low risk offender such that he has worked without supervision since 22 August 2022. He has also been attending regular psychological therapy. The mother’s affidavit attached a report from the respondent’s psychologist who noted that on a recent appointment prior to the appeal, the respondent was scoring in the “extremely severe range for depression, severe range for stress and severe range for anxiety. He has severe concerns regarding his ability to cope if he were to be incarcerated” (emphasis omitted).

3. [216]

   On 22 June 2023, the Court was informed that as at 14 June 2023, the respondent had completed all the requirements of the community service work condition of his Community Correction Order.

4. [217]

   At the hearing of the appeal the Crown conceded that the performance of some portion of community service is a factor relevant to the exercise of the discretion. The fact that the respondent has now completed his community service work hours is clearly an even more powerful factor in favour of the exercise of the residual discretion. Further, the "effect of re-sentencing on progress towards the respondent's rehabilitation" is another appropriate factor to take into account as one of the factors which may combine with others to produce injustice if a Crown appeal is allowed: Green at [43] and see R v Reeves [2014] NSWCCA 154 at [17]-[19]; (2014) 243 A Crim R 558.

5. [218]

   As set out above, the sentence imposed in this matter is clearly manifestly inadequate. In all the circumstances, however, especially the completion of the community service work hours and the effect that full-time incarceration would have on the respondent at this point in his rehabilitation, this is a case where the residual discretion of this Court not to interfere should be exercised.

6. [219]

   The order I propose is therefore:

   1. (1)

      Crown appeal dismissed.