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Court of Criminal Appeal 29 September 2020

Saffin v R

[2020] NSWCCA 246

Sexual offences
CRIME SEXUAL OFFENCES SENTENCING SEXUAL OFFENCES SUBJECTIVE CONSIDERATIONS MENTAL ILLNESS

Citation: Saffin v R [2020] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 29 September 2020
Judges: Basten JA (principal judgment); Rothman J and Price J (agreeing)

Background

The appellant was convicted by a jury of 13 sexual offences arising from a sustained assault on a 19-year-old Aboriginal man over three to four hours on the night of 4 July 2015. The offences included six counts of aggravated sexual assault, five of indecent assault, and two involving acts of indecency. The aggravating element in each aggravated assault count was deprivation of liberty, achieved through physical restraint, locked car doors, and implicit threats, including the appellant showing the victim a knife and claiming to carry a firearm.

The victim made repeated, explicit refusals throughout the assault. The defence at trial was consent, which the jury rejected. At sentencing in the District Court in May 2017, the judge imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years and 4 months.

The appellant sought leave to appeal against the sentence on three grounds: that the sentencing judge erred in characterising his state of mind as recklessness as to consent; that the judge mishandled the significance of the appellant's mental condition (autism spectrum disorder) when assessing moral culpability and the application of general deterrence; and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant was reckless as to whether the victim consented, given a concurrent finding that the appellant may have held an unreasonable belief in consent
  • Whether a diagnosis of autism spectrum disorder (ASD) was capable of reducing the appellant's moral culpability, particularly where the diagnosis was used to argue the appellant could not comprehend the victim's non-consent
  • Whether the aggregate sentence of 14 years imprisonment (non-parole period 9 years 4 months) was manifestly excessive

Decision

Ground 1: Recklessness and belief in consent

Clinical psychologists who examined the appellant suggested that, despite the victim's explicit refusals and the appellant's own coercive conduct, ASD may have prevented the appellant from understanding the absence of consent. The sentencing judge acknowledged this possibility but nonetheless found the appellant reckless as to consent under s 61HA of the Crimes Act 1900 (NSW). The Court of Criminal Appeal found no inconsistency in those two findings. Recklessness as to consent, as a statutory concept, is not negated simply because an offender may have held an unreasonable belief in consent. The jury's verdict established the requisite mental element, and the sentencing judge was entitled to characterise the appellant's state of mind accordingly.

Ground 2: ASD, moral culpability, and general deterrence

The Court scrutinised the psychologists' inference that ASD caused the appellant to be genuinely unable to comprehend non-consent. It noted there was no direct evidence of the appellant's state of mind, as he gave no evidence at trial or on sentence. The Court found the sentencing judge had properly engaged with the ASD diagnosis. The diagnosis did not establish that the appellant's moral culpability was materially diminished, particularly given the explicit and repeated nature of the victim's refusals and the appellant's own deliberate, coercive conduct. The judge was not required to reduce the weight given to general deterrence on account of the condition in these circumstances.

Ground 3: Manifest excess

The Court applied the well-established principle from House v The King (1936) 55 CLR 499 that appellate intervention for manifest excess requires that error be demonstrated, not merely that a different result was open. The individual indicative sentences, none exceeding 8 years for the most serious offence, were already well below the 10-year standard non-parole period prescribed for aggravated sexual assault under s 61J. The aggregate non-parole period of 9 years and 4 months reflected significant leniency on account of the totality principle. The Court found no error and rejected the ground.

Orders Made

  • Extension of time granted until 28 February 2020 within which to file the application for leave to appeal
  • Leave to appeal against the aggregate sentence imposed by the District Court on 5 May 2017 granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding that an offender was reckless as to consent under s 61HA of the Crimes Act 1900 (NSW) is not necessarily inconsistent with an acknowledgment that the offender may have held an unreasonable belief in consent; the two findings can coexist.
  • Where a diagnosis of ASD is relied upon to argue reduced moral culpability for sexual offending, the sentencing court is not required to accept psychological inferences about the offender's state of mind in the absence of direct evidence, particularly where the offender's own conduct was coercive and the victim's non-consent was repeatedly and explicitly communicated.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that appellate intervention requires demonstrated error in the sentencing discretion, consistent with House v The King; the mere availability of a lesser sentence is not sufficient.
  • Individual indicative sentences set below the standard non-parole period, combined with further reduction through the totality principle, can result in an aggregate non-parole period well below the sum of individual non-parole periods without attracting appellate intervention.
  • The absence of any direct evidence of an offender's subjective mental state (through silence at trial and on sentence) limits the weight that can be given to expert psychological inferences about that state of mind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61J

Cases
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Sidlow (1908) 1 Cr App R 28
- Regina v Baker [2000] NSWCCA 85