Citation: Regina v Banditt [2004] NSWCCA 208
Court: New South Wales Court of Criminal Appeal
Date: 4 August 2004
Judge(s): Bryson JA, James J, Kirby J
Background
The appellant was convicted in the District Court of breaking and entering a dwelling house and committing a serious indictable offence therein, namely sexual intercourse without consent under s 61I of the Crimes Act. The complainant was a woman who lived alone in a country town townhouse; the appellant was her cousin, whom she had previously rebuffed after an unwanted advance approximately two months before the incident.
On the night in question, the complainant secured her home before going to sleep. She woke to find the appellant on top of her, having penetrated her vagina. She pushed him off within seconds and ordered him to leave. A pay slip belonging to the appellant was found at the foot of her bed, and a toilet window downstairs was found to be fully open, consistent with the means of entry.
The jury acquitted the appellant of the aggravated offence charged in the indictment (which required the Crown to prove the appellant knew someone was in the dwelling at the time of entry) but returned a guilty verdict on the lesser offence under s 112(1) of the Crimes Act. The appellant appealed both his conviction and the sentence of five years' imprisonment with a three-year non-parole period.
Legal Issues
- Whether the conviction under s 112(1) of the Crimes Act (breaking and entering and committing a serious indictable offence) was sustainable on the evidence.
- Whether the elements of the s 61I offence, specifically the absence of consent and the appellant's knowledge of that absence, were established.
- Whether the sentencing judge erred in the exercise of his sentencing discretion, having regard to the objective and subjective circumstances of the offending.
Decision
The Court of Criminal Appeal unanimously dismissed the appeal against conviction. James J (with whom Bryson JA and Kirby J agreed) found no error in the jury's verdict. The complainant's evidence established that sexual intercourse had occurred without her consent; she was asleep when penetration began and immediately ordered the appellant to stop and leave once she awoke. The earlier incident in which the appellant had attempted to kiss the complainant, and her clear rejection of that advance, was part of the factual context the jury could draw upon.
On the question of the appellant's knowledge of non-consent, the evidence supported the jury's conclusion that the appellant knew the complainant was not consenting. Penetrating a sleeping person who had previously rejected his advances, and who upon waking immediately demanded he stop and leave, was conduct from which knowledge of non-consent was properly inferred.
On the sentence appeal, James J reviewed the sentencing judge's reasoning and found no identifiable error. The sentencing judge had properly weighed the objective seriousness of the offence against relevant mitigating factors: no violence beyond the penetration itself, no threats made, the appellant's limited prior criminal history, and the fact that he desisted when told to stop. The sentencing judge had also found a moderate risk of reoffending and identified special circumstances to allow for extended supervision on parole, principally to address alcohol misuse and reoffending risk.
The Court granted leave to appeal against sentence but dismissed that appeal, finding that the sentence of five years' imprisonment with a three-year non-parole period was not demonstrated to be in error.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A conviction under s 112(1) of the Crimes Act requires proof that the accused broke and entered a dwelling and committed a serious indictable offence within it; sexual intercourse without consent under s 61I satisfies the definition of a serious indictable offence for this purpose.
- Where a complainant was asleep at the time of penetration and immediately withdrew consent upon waking, the jury was entitled to infer that the accused knew the complainant was not consenting to sexual intercourse.
- Prior conduct between the parties, including a previous rejected sexual advance, formed part of the relevant factual matrix available to the jury in assessing the appellant's state of mind.
- No error was established in the sentencing judge's exercise of discretion where mitigating factors such as absence of threats, limited criminal history, and desistance upon request had been expressly identified and weighed.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a finding of special circumstances based on the need for rehabilitative programmes (addressing alcohol misuse and reoffending risk) was open on the facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), ss 4, 61I, 105A(1)(f), 112(1), 112(2), 115A
Cases:
- DPP v Morgan [1976] AC 182
- Miller v The Queen (1981) 55 ALJR 23
- R v Daly [1968] VR 257
- R v Hemsley (1988) 36 A Crim R 334
- R v Henning (NSWCCA, 11 May 1990)
- R v Kitchener (1993) 29 NSWLR 696
- R v Lavender [2004] NSWCCA 120
- R v Murray (1987) 11 NSWLR 12
- R v Sperotto (1970) 71 SR (NSW) 334
- R v Tolmie (1995) 37 NSWLR 660
- R v Zorad [1979] 2 NSWLR 764