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Court of Criminal Appeal 28 June 2023

Kramer v R; R v Kramer

[2023] NSWCCA 152

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT PARTIES MET ON TINDER APP OTHER CONSENSUAL SEXUAL ACTS

Citation: Kramer v R; R v Kramer [2023] NSWCCA 152
Court: Court of Criminal Appeal, NSW
Date: 28 June 2023
Judge(s): Davies J, Hamill J, McNaughton J

Background

The respondent/applicant was convicted by a jury in February 2022 of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The parties had met through the Tinder dating application and met at the respondent's apartment. The complainant had made clear, both before and during the encounter, that she did not consent to penile-vaginal intercourse, verbally refusing and physically attempting to push him away.

The complainant made multiple early complaints to a friend, a telephone helpline, and a doctor. In the days following the incident, the respondent sent text messages that the Crown argued were consistent with an admission that intercourse had occurred. The respondent denied intercourse had taken place at all.

Following conviction, the sentencing judge imposed a two-year Community Correction Order (a non-custodial sentence), finding the objective seriousness of the offence was "just above low range." Both the respondent appealed against conviction and the Crown appealed against the adequacy of the sentence.

  • Whether the jury's verdict was unreasonable or unsupported by the evidence
  • Whether the trial miscarried because the trial judge failed to give an "admissions" direction after the Crown's closing address
  • Whether the Crown's closing address impermissibly invited "consciousness of guilt" reasoning
  • Whether the sentencing judge erred in failing to make an explicit finding about the respondent's basis of knowledge of the complainant's lack of consent
  • Whether the sentencing judge erred in assessing the objective seriousness of the offence
  • Whether the sentence of a Community Correction Order was manifestly inadequate

Decision

Conviction appeal dismissed

The Court confirmed that the test for an unreasonable verdict is whether the jury must (not merely might) have entertained a reasonable doubt as to guilt. Reviewing the whole of the evidence, the Court found no such doubt arose. The complainant's early complaints, though containing minor discrepancies, were consistent with her account at trial. The jury was entitled to draw an inference of admission from the text messages sent by the respondent in the days following the incident.

On the admissions direction ground, the Court noted that trial counsel had not only failed to request such a direction but had actively resisted it for tactical reasons. That tactical choice was a strong indicator that no miscarriage of justice occurred. The Court also rejected the contention that the Crown's closing address improperly invited consciousness of guilt reasoning, holding that merely submitting that an accused lied in the witness box does not amount to such reasoning.

Sentence appeal: errors found but appeal dismissed

The Court upheld grounds 2 and 3 of the Crown's sentence appeal. The sentencing judge erred in treating the respondent's mental health and the absence of physical injuries or threats as factors that reduced the objective seriousness of the offence. Those matters go to the offender's subjective circumstances, not to the gravity of the offending itself. The Court also confirmed that prior consensual sexual activity between the parties did not diminish the seriousness of the non-consensual intercourse. Given the respondent's actual knowledge of the complainant's lack of consent, the Community Correction Order was manifestly inadequate.

Despite finding the sentence inadequate, the Court exercised its residual discretion to dismiss the Crown appeal. By the time of the appeal hearing, the respondent had completed all 300 hours of community service required under the Order. The Court found that re-sentencing at that point, including the prospect of full-time incarceration, would work an injustice given the progress made in the respondent's rehabilitation.

Orders Made

  • Crown sentence appeal dismissed

Key Takeaways

  • The standard for an unreasonable verdict requires that the jury must have entertained a reasonable doubt, not merely that it might have done so. The Court of Criminal Appeal will also give weight to the jury's constitutional role and its advantage in observing witnesses.
  • Where trial counsel actively resisted a jury direction for tactical reasons, that conduct is a strong indicator that the absence of the direction did not cause a miscarriage of justice.
  • Submitting to a jury that an accused lied in the witness box does not, without more, constitute impermissible consciousness of guilt reasoning.
  • Prior consensual sexual activity in the same encounter does not reduce the objective seriousness of a subsequent act of sexual intercourse without consent. People retain the right to set and have respected their sexual boundaries within any encounter.
  • Mental health considerations and the absence of aggravating features such as physical injury do not mitigate the objective seriousness of an offence under s 61I. Those matters are relevant only to the offender's subjective circumstances. In exercising the residual discretion to dismiss a Crown appeal despite finding manifest inadequacy, the Court of Criminal Appeal took into account the completion of community service obligations and the effect that re-sentencing would have on rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61I
- Crimes Act 1900 (NSW) ss 61HF–61HK (post-June 2022 consent reforms, noted but not applied)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 8
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)

Cases
- Dansie v The Queen [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1
- M v The Queen (1994) 181 CLR 487
- Libke v R (2007) 239 CLR 599; [2007] HCA 30
- Edwards v The Queen (1993) 178 CLR 193
- Hewitt v R [2021] NSWCCA 227
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Bussey v R [2020] NSWCCA 280
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45