Wasarua v R

1. [1]

   STERN JA: On 23 August 2024 the applicant was convicted by a jury of 12 on two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The maximum penalty for each offence is 14 years’ imprisonment, with a standard non-parole period (NPP) of 7 years prescribed. Both offences occurred on 6 November 2022 and involved the same victim.

2. [2]

   On 15 November 2024 Bourke SC DCJ (sentencing judge) made a finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) based on this being the applicant’s first period of custody and the need for a significant period of supervision on parole. His Honour sentenced the applicant to an aggregate sentence of 5 years, 6 months expiring on 21 February 2030, with an NPP of 3 years, 8 months expiring on 21 April 2028. The indicative sentence for count one was 4 years, 2 months with an NPP of 2 years, 9 months, and for count two was 5 years, 3 months with an NPP of 3 years, 6 months. The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence.

3. [3]

   On 17 November 2025 the applicant, who represented himself on the application, filed a notice and grounds of appeal and a letter to the Court which (with the applicant’s agreement) the Court read as largely constituting submissions. He also filed written submissions on 2 December 2025 and made some, limited, oral submissions at the hearing before this Court. Considered together, these raise, in substance, a complaint that the aggregate sentence imposed was manifestly excessive. Whilst his grounds of appeal describe the sentence as “within the acceptable sentence range”, whether this is in fact so is a question for this Court having regard to the substantive contentions that the applicant makes. Those contentions are, in summary, that the sentence is too long having regard to the following matters.

   1. (1)

      The objective seriousness of the offending, in particular that the event only happened once and there were no drugs or substances involved. He also contends that there was no ongoing or prolonged maltreatment of the victim, the offending was not representative of an ongoing pattern of behaviour and there was no risk of escalation of offences or offending behaviour.

   2. (2)

      His previous good character, in that he had no previous offending in the time that he had been in Australia, and his upbringing in which he was taught to respect women and to be a model citizen. The applicant contends that these matters, together with his employment history and community support, indicate that he is not likely to re-offend.

   3. (3)

      He did not resist arrest and was compliant with his bail conditions up to the conclusion of the matter in August 2024. He says he has been compliant with “all directions issued to me”.

   4. (4)

      Matters that he contends make his incarceration particularly onerous and detrimental to his mental health on a long-term basis. First, that he is the sole income earner for his family and he has young children (although the evidence suggests he only has one child). He is thus missing family time, bonding and providing guidance for his children. He explains that the financial hardship on his partner and son whilst he is in prison is “to[o] much to [bear]” and that it brings him “so much pain” to hear his son say that he “misses [him] everyday”. Second, his mother died during the week that the applicant was accused of the offending and he has been unable to participate in cultural and family events. He says he was hurt by his inability to go to his mother’s funeral or to bury her. Third, he says that his offence has had a huge impact, unsettling his community and his family and “brings [him] great sorrow”. Fourth, he says he also faces the additional challenge that English is his second language and he sometimes needs assistance with communication.

4. [4]

   He asks this Court to give him the chance to be with his family again, to be there to help his son and to be a law abiding Australian and give back to the community.

5. [5]

   To the extent that the applicant raises matters which occurred after 15 November 2024, being the date when he was sentenced, they cannot be relied upon in support of his contention that his sentence is manifestly excessive. As observed in Mehajer v R [2026] NSWCCA 14 at [226] (Ward P, Price AJA and Fagan J agreeing):

6. [6]

   In his letter of 17 November 2025, the applicant wrote he is “aware that this type of offence is wrong and affects families and the broader community greatly”. This falls short of an acceptance of his own guilt. In his oral submissions the applicant said that he wanted to say “sorry to the court for – for wasting your time, you know, time hearing this – my case” and that he also wanted to say “sorry to the community”. He also said that he was “aware for the offence that I was guilty for and … was prepared to accept it” and that “I’m aware of [what I did], and I accept it because I’m just in gaol now … So, I have – I just accept it”. Given the matters set out below, however, it does not appear that he accepts the correctness of the jury’s verdicts. In any event, consistent with the principles set out above, as these statements post-date the imposition of his sentence, they cannot be taken into account on the question whether his sentence is manifestly excessive.

7. [7]

   The applicant also contended in his oral submissions that “everything that happened on that night was consented [to] by both parties”. That contention is inconsistent with the fact of his conviction. It is thus not a contention that can avail the applicant on this application for leave to appeal solely against his sentence. Similarly, an oral submission by the applicant seeking to explain why he thought that he had been set up by the victim and that she may have fabricated the offences for money must be put to one side on this application.

8. [8]

   The respondent contends that the applicant’s contention of manifest excess is not made out.

9. [9]

   For the reasons set out below, leave to appeal should be refused.

Relevant facts on sentence

1. [10]

   Save to the extent that (as noted above) the applicant continues to maintain that the acts of sexual intercourse were consensual, he does not challenge any of the primary facts as found by the sentencing judge and set out below.

2. [11]

   The applicant and the victim first met through social media in October 2022. They met in person in late October 2022 at the victim’s house and there was some intimate contact between them in the form of kissing and cuddling. On 2 November 2022 they had consensual sexual intercourse at the victim’s home. After this, the victim began to have concerns about the applicant being possessive and controlling by calling her constantly and asking what she was doing and who she was talking to. The victim decided to end her casual dating arrangement with the applicant after she woke on 4 November 2022 with seven missed calls and text messages from the applicant.

3. [12]

   Prior to 6 November 2022 the applicant and the victim had discussed the applicant coming over to the victim’s home that night. However, in the course of that day the victim called the applicant and told him that she did not want him to come over. The applicant nonetheless caught a train to a railway station near the victim’s home and called her and said he was on his way. The victim said words to the effect of, “I don’t want you to come” but the applicant said something to her like, “Don’t worry, babe, I’m still coming”. The victim decided to pick the applicant up from the station. She explained that this was because he would find his way to her home anyway. She decided that she would use the opportunity to try to have a conversation with the applicant about not wanting to see him again.

4. [13]

   While in the car, the applicant tried to touch the victim’s leg. She responded, “Don’t touch me”. When the applicant leaned towards her for a hug, she said, “Don’t touch me, I’m not ready”. When they arrived at the victim’s house, she put her son to bed and told the applicant she did not want to see him again. This caused him to become teary. He persisted in trying to kiss her, but she pushed him away. She told him that she was going to her bedroom and that the applicant should sleep on the couch in the lounge room. After she left the room, the applicant called out to her, “Are you going to leave me here like this?”. The sentencing judge did not accept the applicant’s claim (in his police interview) that the victim then invited him into her bedroom. His Honour found, instead, that the applicant, who was wearing no shirt, entered the victim’s bedroom without invitation, got into bed and initially went to sleep.

5. [14]

   Around this time the victim sent text messages to a friend indicating that the applicant was asleep next to her and that she was “in a situation”. She told her friend that if she texted the word “pineapple” then her friend should call the police. Her friend then replied “Okay praying for you! I love you! Be safe”. About one hour and seven minutes after the victim acknowledged this text message, the victim sent the code word “pineapple” to her friend, who called the police. It was during that period of about one hour that the applicant sexually assaulted the victim.

6. [15]

   The applicant placed his leg over the victim and then tried to touch her breast. She grabbed his hand and said, “If you touch me again I will break your fucking hand”. The applicant laughed, ignored this and pulled the victim towards him and again touched her breasts, despite her complaints that this hurt due to past surgery. The applicant continued to touch the victim, despite being told that she did not want him in her bed and despite her removing his hand from her body numerous times. The applicant eventually got on top of the victim, trying to kiss her and biting her face. At one stage, the victim said, “If you touch me again I will call the police on you”. Notwithstanding this, the applicant laughed at the victim and referred to her as his partner. The victim left the bed for a short time to get a drink. When she returned the applicant was naked and touching his penis. He told her that he wanted to eat and lick her. In response she said that she did not want him to touch her and did not want to have sex with him, adding that his suggestion was “disgusting”. The applicant continued to touch his penis and asked the victim to perform fellatio on him, which she rejected.

7. [16]

   The applicant kept trying to touch the victim’s body, including her breasts. Despite her protests, he removed her shorts, held her legs back, and licked her genital area while the victim was struggling and telling him to stop. This conduct constituted count one on the indictment.

8. [17]

   The victim tried to get up but the applicant held her down, forced her legs back and had penile-vaginal intercourse with her. This went on for some time while the victim was physically struggling and telling the applicant to stop and that it was hurting her. To this the applicant said, “But you like it when I hurt you” and thrust harder into her vagina. The victim was crying during the act of penile-vaginal intercourse and it caused her actual pain of which the applicant was also aware because she told him so. After some time, the applicant, who was not wearing a condom, ejaculated inside the victim’s vagina. This conduct constituted count two on the indictment.

Objective seriousness

1. [18]

   The sentencing judge identified various common features relevant to the objective seriousness of both offences. First, both offences were committed in the victim’s home, in her bed, where she had a right to feel and be safe. Second, the applicant had actual knowledge that the victim did not consent to the sexual acts. Third, both offences involved the use of physical force, with the applicant holding the victim down. Fourth, there was considerable disparity in physical size and strength between the applicant and the victim, which placed her in a position of vulnerability.

2. [19]

   The offending comprising count one involved skin on skin contact between the applicant’s mouth and the victim’s genitalia. Whilst there was no clear evidence as to the duration of this offending, the sentencing judge found that “it was not fleeting” but was unlikely to have gone on for long.

3. [20]

   The offending comprising count two involved forceful penetration of the victim’s vagina which caused her pain and involved ejaculation insider her vagina, with an increased sense of violation and risk of pregnancy and disease. The sentencing judge found that this offence “also involved the [applicant] squeezing [the victim’s] throat three times, with enough force to make her feel light headed”. Whilst, again, the evidence was unclear as to the duration of the offending, the sentencing judge found that it must have gone on for “quite some minutes” during which the victim was attempting to resist, verbally and physically, while crying.

4. [21]

   The sentencing judge found that count one was approaching but just short of the mid-range of objective seriousness and count two sat within the mid-range of objective seriousness.

Victim impact statement

1. [22]

   The victim impact statement was not treated as aggravating the offences, but the sentencing judge found that its contents confirmed “the devastating effects that would usually be the result of offences like this and which are likely to remain for many years, if not an entire lifetime”. Those effects included an ongoing sense of fear and lack of trust in others.

Subjective factors

1. [23]

   The applicant was aged 37 at the time of sentence and had no other criminal history.

2. [24]

   The applicant relied on a report dated 25 October 2024 from Chafic Awit, registered psychologist. The sentencing judge observed that this report noted that the applicant had a fairly normal upbringing with no real trauma or distressing events to speak of. He completed high school in Fiji, then moved to Australia in 2013. He worked in various labouring jobs and with New South Wales Railways after he had to abandon a career in rugby on account of a knee injury. He married in 2019 and at the time of sentence had a five year old son. He separated from his wife in 2021. The sentencing judge noted, however, that a letter dated 12 November 2024 from the applicant’s wife stated that she and the applicant had reconciled “only months” before his sentencing hearing. Whilst she said in that letter that the applicant was a kind and non-violent man who “would never commit such a crime”, the sentencing judge characterised this view as unhelpful and contrary to the jury’s verdicts.

3. [25]

   Mr Awit concluded that, at the time of assessment, the applicant met the diagnosis for persistent depressive disorder and mild gambling disorder. He also said that, at that the time of the “alleged” offences, the applicant was “likely” struggling with an adjustment disorder and mixed anxiety and depressive symptoms and it would appear that the applicant had been “struggling with his mood” in the leadup to the offending period. The sentencing judge attached limited weight to this evidence, “given its rather vague terms”. His Honour found that it did not “to any real degree” reduce the applicant’s moral blameworthiness, which he found to be high.

4. [26]

   The sentencing judge found that there was no remorse, as the applicant maintained his innocence. He noted that, according to the Sentencing Assessment Report from Andy Huynh, Community Corrections Officer, dated 28 October 2024, the applicant claimed that he was “set up” by the victim, perhaps for financial gain. His Honour also noted that, on his own observation, the applicant was repeatedly shaking his head during the reading of the victim impact statement.

5. [27]

   The sentencing judge noted that the applicant had no previous criminal history, which assisted him, and that he had participated in the Remand Addictions Program and Narcotics Anonymous since being in custody. His Honour noted that the applicant retained the support of his wife and other family members and that his aunt had commented positively on his general character in a letter dated 12 November 2024.

6. [28]

   The Sentencing Assessment Report suggested the applicant had an average risk of reoffending. The sentencing judge also took into account the applicant’s “complete lack of insight into his offences, which were committed in the face of clear opposition by the victim and which point, in my view, to a sense of entitlement”. His Honour concluded that “there remains a material risk of his reoffending in a similar manner” and that the applicant’s prospects of rehabilitation were guarded.

7. [29]

   The sentencing judge noted the “fairly strict bail conditions”, including a curfew, to which the applicant had been subjected and that the applicant had been unable to attend his mother’s funeral. His Honour took these into account as a form of punishment to which the applicant had already been subjected.

8. [30]

   Further, whilst it was not suggested that the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were engaged, the sentencing judge took into account the diagnoses made by Mr Awit which, in his Honour’s view, would have an adverse impact on the applicant’s experience of custody. His Honour also took into account the limitations on the applicant having regular contact with his child and wife.

Was the sentence manifestly excessive?

1. [31]

   The principles relevant to determining whether a sentence is manifestly excessive are well established. They are helpfully summarised in Hancock v R [2025] NSWCCA 213 at [99]-[100] (Bell CJ, Ward P, Payne JA, N Adams J (as the CJ at CL then was), Yehia J):

2. [32]

   As was clarified in Hancock, and subsequently in Fisher v R [2026] NSWCCA 27 at [50]-[53] (Kirk JA, Yehia J agreeing) and [180] (Fagan J), to the extent that findings of fact (including inferences drawn from findings of primary fact) are challenged on a sentence appeal, the relevant question is whether there has been a “mistake of fact” for the purposes of House v The King (1936) 55 CLR 499; [1936] HCA 40. This turns on whether the sentencing judge’s finding of fact was “reasonably open”: Hancock at [73]. Evaluative findings of fact made as part of the sentencing exercise may only be shown to be in error if not “reasonably open” and a principle of appellate restraint thus applies to evaluative findings: Hancock at [74]; Fisher at [53]. Assessments of objective seriousness and of an offender’s prospects of rehabilitation fall within that category: Hancock at [42]; Fisher at [74]-[76]. As regards findings of fact, including evaluative findings, it is only if the finding is material that error is established: Hancock at [79]; Fisher at [81(4)].

3. [33]

   As noted above, the applicant’s overarching contention is that his sentence was manifestly excessive and in support of this he relies upon the four matters set out at [3] above.

4. [34]

   To the extent that the applicant submits that the objective seriousness of his offending is at the lower end of the scale (at [3(1)] above), consistent with the principles discussed above, he has to show that the sentencing judge’s findings to the contrary were not reasonably open. On the evidence, however, both of the offences were serious and involved the use of physical force by a physically larger and stronger person in the victim’s home. The sentencing judge’s finding that the applicant had actual knowledge that the victim did not consent to the sexual acts was reasonably open. These matters, together with the sentencing judge’s further findings as to the circumstances of the offending, amply support the conclusion that his Honour’s findings on objective seriousness were reasonably open.

5. [35]

   Whilst the applicant contends that there was no risk of escalation of offences or further offending behaviour (at [3(1)] and [3(2)] above), the sentencing judge found that there remained a material risk of the applicant reoffending in a similar manner and that his prospects were guarded. Those findings took account of the matters which assisted the applicant (see [27] above) but also took account of the applicant’s lack of insight into his offences. The applicant’s lack of remorse also provided relevant context for the sentencing judge’s findings. Those findings were reasonably open to his Honour.

6. [36]

   As regards the mitigating factors which the applicant relies upon (at [3(2)] and [3(3)] above), those matters were taken into account by the sentencing judge. None suggests that his Honour’s findings were not reasonably open to the sentencing judge having regard to the matters at [32] above.

7. [37]

   As set out at [3(4)] above, the applicant also relies upon matters which he contends make his incarceration more onerous and detrimental to his mental health, albeit that these are relevant on his complaint of manifest excess only to the extent that they pre-date his sentence.

8. [38]

   As noted above, the sentencing judge took into account that the applicant was unable to attend his mother’s funeral and that the applicant’s mental health diagnoses would have an adverse effect on his experience of custody as would the limitations on his regular contact with his wife and child. The sentencing judge also took into account Mr Awit’s report, which detailed the applicant’s employment history up until his incarceration and how upset the applicant was not to attend his mother’s funeral. As noted above, the sentencing judge also considered both the letter dated 12 November 2024 from the applicant’s wife which detailed, among other matters, that the applicant’s son missed him very much, and the letter dated 12 November 2024 from the applicant’s aunt, which explained that the applicant had worked hard to support his family and had been affected by his mother’s death.

9. [39]

   The matters set out above, considered cumulatively, do not demonstrate that the sentence imposed on the applicant was manifestly excessive. To the contrary, the sentence imposed falls comfortably within the range that was reasonably open in the circumstances.

10. [40]

    Moreover, whilst the applicant raises language difficulties as exacerbating the hardship of his incarceration, this was not a matter relied upon before the sentencing judge.

11. [41]

    As is apparent, none of the matters relied upon by the applicant demonstrate that his sentence was manifestly excessive. Indeed, this is not an application that goes beyond the merely arguable. It does not raise any issue of principle. In these circumstances, leave to appeal against his sentence should be refused.

Conclusion

1. [42]

   The order I propose is:

   1. (1)

      Refuse leave to appeal against sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

2. [43]

   HUGGETT J: I agree with Stern JA.

3. [44]

   BOULTEN J: I agree with Stern JA.