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District Court 8 July 2021

R v Bailey, Jason (a pseudonym)

[2021] NSWDC 372

Sexual offences
OFFEND

Citation: R v Bailey, Jason (a pseudonym) [2021] NSWDC 372
Court: District Court of New South Wales
Date: 8 July 2021
Judge: P Taylor SC DCJ

Background

The offender, referred to by the pseudonym Jason Bailey, was convicted by a jury on two counts of sexually touching the complainant (referred to as Chloe Mendoza, also a pseudonym) without her consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The offences carried a maximum penalty of five years' imprisonment. The offender was 60 years old at the time of the offences and lived in a shared rental property with three other men, one of whom was the complainant's boyfriend.

The offences occurred on 25 August 2019, while the complainant's boyfriend had briefly left the house. The offender and complainant had engaged in conversation and a kiss, and subsequently, while watching television together, the offender twice touched the complainant's breast, once outside and once underneath her clothing. A third charge, relating to the kissing incident, resulted in a not guilty verdict.

The offender had been held in custody from the day after the offences. By the time of sentencing, more than 20 months had elapsed. The matter before the court was the determination of an appropriate sentence in light of the jury's findings and all relevant mitigating and aggravating circumstances.

  • What findings could properly be made about the offender's state of knowledge regarding the complainant's lack of consent, given the three alternatives under s 61HE(3) of the Crimes Act 1900?
  • How should the objective seriousness of the offences be assessed, including the nature of the touching and the absence of aggravating factors?
  • What weight should be given to mitigating factors, including the offender's limited criminal history and the period already spent in custody?
  • What was the appropriate sentence, given that time already served substantially exceeded the non-parole period that would ordinarily apply?

Decision

Knowledge of lack of consent

The jury's guilty verdicts established that the offender knew of the complainant's lack of consent within the meaning of s 61HE of the Crimes Act, but the verdicts did not specify which of the three alternatives under s 61HE(3) was satisfied. Those alternatives are: actual knowledge of non-consent; recklessness as to consent; or holding a belief in consent without reasonable grounds. The court declined to find, beyond reasonable doubt, that the offender had actual knowledge of the complainant's non-consent, as the evidence did not establish that she had expressed her refusal in sufficiently clear terms. The court was satisfied on the balance of probabilities that the offender was either reckless or lacked reasonable grounds for his belief in consent, and sentenced on that basis. Self-induced intoxication was noted but disregarded under s 61HE(4).

Objective seriousness

The court assessed the offences as falling at the lower end of the range for this category of offending. The touching was brief, involved no threats, physical force, or physical resistance, and the form of knowledge involved was one of the less direct alternatives under the statute. Citing Baines v R, the court noted that breast touching, while unquestionably serious, is less intrusive than touching of the genitals. No statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 were present. The location (the offender's own home) was not found to increase objective seriousness, and no relevant planning was identified.

Mitigating factors and criminal history

The offender had no prior sexual offences and his most recent offences, occurring around 2005, were minor. The court acknowledged a clear record over the preceding 15 years, though it declined to treat his history as entirely unblemished, given older convictions including domestic violence order contraventions. The offender had also submitted to a police interview without legal assistance the night after the offences, which warranted minor mitigation.

Sentence

The court determined that an aggregate fixed term of six months' imprisonment was appropriate. However, by the time of sentencing the offender had already served more than 20 months in custody. This substantially exceeded not only the fixed term but any non-parole period that could properly have been imposed, rendering an intensive correction order inutile. The court backdated the sentence to 26 August 2019, with expiry on 25 February 2020, and ordered the offender's immediate release. The court noted that the extended period of pre-sentence custody significantly limited its ability to incorporate rehabilitative conditions such as counselling into the sentence.

Orders Made

  • Aggregate sentence of a fixed term of six months' imprisonment imposed, commencing 26 August 2019 and expiring 25 February 2020.
  • Indicative sentence of two months' imprisonment for Count 2 (first offence) and five months' imprisonment for Count 5 (second offence).
  • Offender entitled to be released forthwith.
  • Publication of any material identifying the complainant prohibited under s 578A(2) of the Crimes Act 1900.

Key Takeaways

  • Under s 61HE(3) of the Crimes Act 1900, a conviction for sexual touching without consent can rest on any one of three alternative mental states: actual knowledge of non-consent, recklessness, or belief in consent without reasonable grounds. Where the evidence does not establish beyond reasonable doubt which alternative applies, a sentencing court is required to proceed on the basis most favourable to the offender consistent with the jury's verdict.

  • The District Court confirmed that brief, non-forceful breast touching, while unquestionably a serious offence, falls toward the lower end of the objective seriousness scale for sexual touching offences, consistent with the Court of Criminal Appeal's reasoning in Baines v R.

  • A guilty verdict on some charges and not guilty verdicts on related charges meant the sentencing court proceeded on a narrowed factual basis, declining to accept the full account of the complainant where the jury had not wholly accepted her evidence.

  • Where pre-sentence custody substantially exceeds any non-parole period that would ordinarily be fixed, the sentencing court's capacity to include rehabilitative conditions (such as counselling requirements) is effectively foreclosed. The District Court treated this as a significant limitation on the sentencing options available.

  • Sentencing statistics on sexual touching offences were given little weight in the absence of detailed information about the specific offences and offenders involved, illustrating the limited utility of raw statistical data in this context.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61HE, 61KC, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Cases
- Baines v R [2016] NSWCCA 132
- Kearsley v Regina [2017] NSWCCA 28
- Shanmugam v R [2021] NSWCCA 125
- Wan v R; R v Wan [2019] NSWCCA 86