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Court of Criminal Appeal 19 December 2019

Cordeiro v R

[2019] NSWCCA 308

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER VERDICT UNREASONABLE APPEALS APPEAL AGAINST SENTENCE

Citation: Cordeiro v R [2019] NSWCCA 308
Court: Court of Criminal Appeal
Date: 19 December 2019
Judge(s): Simpson AJA (principal judgment on conviction); Harrison J (principal judgment on sentence); Johnson J agreeing on both

Background

The applicant owned and operated a boat charter business on Sydney Harbour. In October 2015, the complainant, a university student employed casually as a hostess on one of his vessels, was working an evening cruise. After the paying guests departed, she socialised with the applicant and later fell asleep in a cabin below deck.

The applicant digitally penetrated the complainant while she was asleep. He did not dispute that the act of penetration occurred. At trial, his defence was that the sexual contact had been consensual. The jury rejected that defence and returned a verdict of guilty on one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). He was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months.

The applicant sought leave to appeal against both conviction and sentence. For the conviction appeal, leave was required because the sole ground raised a question of fact, or at best a mixed question of fact and law. For the sentence appeal, leave was also required. An extension of time was also sought, which the Crown did not oppose.

  • Whether the jury's verdict of guilty was unreasonable and could not be supported by the evidence, having regard to the whole of the evidence at trial
  • Whether the sentencing judge erred in assessing the objective seriousness of the offence, including in her findings about predatory conduct, the breach of trust, and the complainant's vulnerability

Decision

On the conviction appeal, Simpson AJA, with Johnson and Harrison JJ agreeing, found that it was open to the jury to return a verdict of guilty having considered the whole of the evidence. The court applied the principles from M v The Queen (1994) 181 CLR 487 and The Queen v Baden-Clay (2016) 258 CLR 308, which require an appellate court to ask whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. The court was satisfied that this threshold was not crossed in the applicant's favour, and the conviction appeal was dismissed.

On the sentence appeal, Harrison J addressed seven sub-grounds challenging the sentencing judge's assessment of objective seriousness. Each was rejected. The sentencing judge's description of the applicant's conduct as "predatory" was found to be justified by the evidence: the complainant was asleep and defenceless, and the applicant made a conscious decision to take advantage of that situation. The finding of a breach of trust was also upheld, supported by the applicant's own statements to the complainant that she could trust him and that he would not let anything happen to her.

On the sub-ground relating to the complainant's vulnerability as an employee, the Court found that the sentencing judge had identified vulnerability arising from the complainant being asleep, not from her employment status. A separate remark about general deterrence concerning those in an employer's position was found to be a deterrence consideration, not a finding about objective seriousness.

Orders Made

• Leave to appeal against sentence is granted
• The appeal against sentence is dismissed

Key Takeaways

  • Leave to appeal against conviction was required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) because the sole ground raised a question of fact, or at most a mixed question of fact and law.
  • Under the standard from M v The Queen, an appellate court examining an unreasonable verdict must consider the whole of the evidence and determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt; the Court of Criminal Appeal found that standard was met here.
  • A person does not consent to sexual intercourse if they are asleep, under s 61HA(4)(b) of the Crimes Act 1900 (NSW) as it stood in 2015; the complainant's lack of awareness of the act until the following morning was central to the Crown case.
  • In dismissing all seven sentence sub-grounds, the Court confirmed that a characterisation of conduct as "predatory" was open where the offender consciously exploited a defenceless victim's vulnerability.
  • Sentencing remarks addressing general deterrence for those in positions of authority or trust are distinct from findings about objective seriousness, and conflating the two does not establish error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61HA (as they stood in October 2015; subsequently renumbered)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- R v Birks (1990) 19 NSWLR 677
- R v Scott (2009) 22 VR 41; [2009] VSCA 20