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Court of Criminal Appeal 24 November 2023

Pender v Rex

[2023] NSWCCA 291

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE SEXUAL ASSAULT KNOWLEDGE ABOUT ABSENCE OF CONSENT SELF

Citation: Pender v Rex [2023] NSWCCA 291
Court: Court of Criminal Appeal, NSW
Date: 24 November 2023
Judges: Simpson AJA (primary judgment); Rothman J and Cavanagh J agreeing

Background

The appellant was convicted by a jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from offences committed on 9 February 2020 at the complainant's home. Both the appellant and the complainant were members of the same Aboriginal community on the NSW south coast and were both users of methylamphetamine. The appellant arrived at the complainant's home with the drug, remained for many hours, and committed both offences despite the complainant making her non-consent clear.

At trial, the appellant acknowledged that sexual intercourse had occurred but claimed it was consensual. He also gave evidence that he was intoxicated from methylamphetamine at the time. The jury rejected his account and convicted him on both counts.

The appellant was sentenced in the District Court to an aggregate term of six years' imprisonment, with a non-parole period of three years and six months. He did not appeal against his convictions, but sought leave to appeal against the sentence on three grounds.

  • Whether the appellant's intoxication was "self-induced" within the meaning of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given his asserted history of addiction linked to early life adversity, and whether the sentencing judge correctly applied that provision.
  • Whether the sentencing judge erred by finding the appellant had actual knowledge of the complainant's non-consent, rather than merely an unreasonable (but drug-induced) belief that she consented, and whether this affected the objective seriousness assessment.
  • Whether the sentencing judge gave inadequate weight to the appellant's history of childhood deprivation and disadvantage, making the sentence manifestly excessive.

Decision

Self-induced intoxication under s 21A(5AA)

The Court confirmed and followed the majority construction of s 21A(5AA) adopted in Fisher v R [2021] NSWCCA 91. Under that construction, intoxication is not to be treated as a mitigating factor at sentencing where it is self-induced. The Court held that the appellant's methamphetamine use remained self-induced, notwithstanding the connection between that drug use and the significant adversities he experienced in early life. His history of addiction did not displace the self-induced character of his intoxication for the purposes of the provision.

The Court also addressed the sentencing judge's finding that the appellant had actual knowledge of the complainant's non-consent (rather than an unreasonable belief in consent). Simpson AJA acknowledged some ambiguity in the sentencing judge's reasons on this point, but held that the distinction did not necessarily affect objective seriousness. Offending based on an honest but unreasonable, drug-induced belief in consent is not necessarily less objectively serious than offending committed with actual knowledge of non-consent.

Objective seriousness

The appellant argued that the sentencing judge failed to rank or assess the objective seriousness of the offending on any notional scale. The Court rejected this ground. A sentencing judge is required to identify the facts, matters and circumstances bearing on the appropriate sentence, and the sentencing judge did so. There is no requirement to express objective seriousness as a position on a numerical or descriptive scale.

Manifest excess and Bugmy principles

The Court examined the sentencing judge's treatment of the appellant's background, which included a deeply disadvantaged childhood and significant adversity. While accepting the serious nature of that background, the Court was not persuaded that the sentence was manifestly excessive or that the sentencing judge disregarded the principles from Bugmy v The Queen (2013) 249 CLR 571, which require courts to give appropriate weight to the mitigating effect of childhood deprivation. The statistical comparisons offered by the appellant were characterised as largely unhelpful, and the comparable cases cited showed the sentence was within range. All three grounds of appeal were dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), intoxication remains "self-induced" for sentencing purposes even where an offender's drug use is connected to a history of addiction rooted in early life adversity. The provision excludes that intoxication from consideration as a mitigating factor.

  • The Court of Criminal Appeal confirmed that the majority construction of s 21A(5AA) in Fisher v R [2021] NSWCCA 91 was not plainly wrong and continues to bind the Court. It is the established construction to be applied.

  • Offending on the basis of an honest but unreasonable, drug-induced belief in consent is not necessarily less objectively serious than offending with actual knowledge of non-consent. The distinction does not automatically reduce the gravity of the offence.

  • No error is established merely because a sentencing judge does not rank objective seriousness on a notional scale, provided the judge has identified the relevant facts, matters and circumstances bearing on the sentence.

  • In dismissing the manifest excess ground, the Court reaffirmed that the Bugmy principles require genuine consideration of childhood deprivation and disadvantage as a mitigating factor, but do not mandate any particular outcome or reduction in every case where such a background is established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HE, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)

Cases
- Fisher v R [2021] NSWCCA 91 (followed)
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125
- Bourke v The Queen [2010] NSWCCA 22; 199 A Crim R 38
- Kelly v R [2016] NSWCCA 246
- Sharma v R [2017] NSWCCA 85
- McDowall v R [2019] NSWCCA 29
- R v Eaton [2023] NSWCCA 125
- Shortland v R [2018] NSWCCA 34
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54