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Court of Criminal Appeal 15 December 2023

Stein v R

[2023] NSWCCA 324

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Stein v R [2023] NSWCCA 324
Court: Court of Criminal Appeal
Date: 15 December 2023
Judge(s): Wilson J (at [1]), Fagan J (at [103]), Sweeney J (at [104])

Background

The applicant was convicted by jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from a single incident on 21 April 2019. The victim, who had turned 16 the previous day, was asleep at a friend's home when the applicant entered her bunk bed and sexually assaulted her. He was sentenced to an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 7 months.

At trial, the applicant gave sworn evidence that the victim had initiated sexual activity and that he had been reluctant to participate. The jury rejected that account. At the sentencing hearing, the applicant relied on expert evidence from a forensic psychologist diagnosing intellectual disability, as well as evidence of early childhood instability, in seeking a reduced sentence.

The applicant sought leave to appeal the sentence on six grounds, contending that the sentencing judge made errors in assessing the objective seriousness of the offences, his disability, his childhood deprivation, his rehabilitation prospects, the weight given to harm to the victim, and that the sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by conflating moral culpability with objective seriousness of the offences
  • Whether the sentencing judge erred in rejecting the expert opinion that the applicant's intellectual disability causally contributed to the offending
  • Whether the sentencing judge gave insufficient weight to the applicant's history of early childhood deprivation under the principle in Bugmy v The Queen
  • Whether the sentencing judge erred in assessing the applicant's rehabilitation prospects and likelihood of reoffending
  • Whether the sentencing judge gave undue weight to harm suffered by the victim
  • Whether the aggregate sentence of 6 years was manifestly excessive

Decision

Ground 1: Objective seriousness and moral culpability

The Court of Criminal Appeal rejected the submission that the sentencing judge improperly merged moral culpability with objective seriousness. While those are ordinarily distinct considerations, the applicant's state of mind, specifically his actual knowledge that the victim did not consent, was relevant to both the gravity of the offences and his personal blameworthiness (at [56]-[57]). The sentencing judge properly considered the applicant's knowledge of the victim's refusal, the age differential, the nature and duration of the penetrative acts, the physical pain caused, and the deliberate character of the offending (at [62]). Findings that both counts fell within the mid-range of gravity, with count 2 more firmly so, were open to the sentencing judge (at [62]).

Ground 2: Intellectual disability and causal connection to offending

The Court upheld the sentencing judge's rejection of Professor Hayes' qualified opinion that the applicant's disability "may" have causally contributed to the offending. The applicant did not defend the charges on the basis of any inability to read social cues; his case was that the victim was the sexual aggressor (at [65]-[66]). Professor Hayes had not been provided with the victim's trial testimony or the post-offence text messages in which the applicant acknowledged the victim said "no" and apologised (at [71]-[72]). The sentencing judge accepted that the applicant had an intellectual disability and took it into account in finding special circumstances, warranting a more favourable ratio between head sentence and non-parole period. The disability was not, however, established as causally linked to the offending (at [74]).

Ground 3: Early childhood deprivation and the Bugmy principle

The Court confirmed that Bugmy v The Queen (2013) 249 CLR 571 does not establish a rule that any childhood deprivation obliges a sentencing court to reduce an offender's sentence (at [79]). While the sentencing judge acknowledged the evidence of domestic violence against the applicant's mother during pregnancy, and a threatening incident when he was an infant, she was not satisfied that the applicant's overall upbringing was relevantly dysfunctional (at [80]). The applicant's childhood was assessed as otherwise stable and supportive, and the evidence fell well short of the seriously deprived background described in Bugmy (at [80]-[82]). No error was established.

Ground 4: Rehabilitation prospects and failure to accept responsibility

The applicant's argument that the sentencing judge effectively penalised him for pleading not guilty was rejected (at [83]). The sentencing judge made no positive or negative finding on rehabilitation, but concluded she could not make favourable findings given the applicant's lack of insight into his conduct (at [84]). The Court distinguished between an accused testing the Crown case (which cannot be held against an offender) and an accused advancing an affirmative false case blaming the victim (at [88]). The latter was legitimately relevant to the assessment of insight and prospects of rehabilitation (at [87]-[88]).

Ground 5: Weight given to harm to the victim

The Court rejected both strands of this ground. Acknowledging the devastating harm suffered by the victim is a proper sentencing purpose under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the use of the word "devastating" did not amount to a finding of statutory aggravation beyond what would ordinarily be expected from sexual assault (at [92]-[93]). The applicant's attempt to rely on remarks the trial judge made to the jury after delivering its verdict, as evidence of personal bias, was firmly rejected; such remarks are a proper and routine part of a judge's management of a jury exposed to distressing evidence (at [94]-[95]).

Ground 6: Manifest excess

The Court found that an aggregate sentence of 6 years with a non-parole period of 3 years and 7 months for two mid-range offences of sexual intercourse without consent was not manifestly excessive (at [99]-[100]). Sentencing statistics cited by the applicant were of limited utility as they related to single-count matters, not two-count sentences (at [99]). No error in the overall sentencing exercise was demonstrated.

Orders Made

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

Key Takeaways

  • An offender's state of mind, particularly actual knowledge of a victim's refusal to consent, may properly bear on both the objective gravity of a sexual offence and the offender's moral culpability without those concepts being impermissibly conflated (at [56]-[58]).

  • A sentencing court is entitled to discount an expert opinion on causal connection between a disability and offending where the expert lacked access to critical trial material and the opinion was expressed in only qualified terms, especially where the defence case at trial was inconsistent with the disability argument advanced on sentence (at [64]-[73]).

  • Bugmy v The Queen does not create an automatic entitlement to mitigation for any childhood disadvantage. A sentencing court must be satisfied that the deprivation was of a character and severity capable of reducing moral culpability for the specific offending (at [79]-[82]).

  • Where an accused advances a positive case at trial that falsely attributes blame to the victim, a sentencing court may legitimately treat that conduct as relevant to the assessment of insight and rehabilitation prospects, without this constituting punishment for exercising the right to plead not guilty (at [87]-[88]).

  • Sentencing statistics drawn from single-count offences carry limited weight when assessing the alleged excessiveness of a sentence imposed for multiple counts requiring partial accumulation (at [99]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 ( NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2), 44 (2), 53 A
- Criminal Appeal Act 1912 (NSW) , s 5(1)(c)
- Evidence Act 1995 (NSW), s 66

Cases
- Alseedi v R [2009] NSWCCA 185
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- Lawrence v R [2023] NSWCCA 110
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Sigalla v R [2021] NSWCCA 22
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- WW v R [2023] NSWCCA 311