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Court of Criminal Appeal 27 September 2024

Cornish v R

[2024] NSWCCA 177

Sexual offencesAssault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE MISAPPLICATION OF PRINCIPLE SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Cornish v R [2024] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 27 September 2024
Judges: Stern JA, Davies J (with reasons), Ierace J

Background

The applicant pleaded guilty in the Local Court to two counts of sexual intercourse without consent and one count of common assault. He also asked the sentencing court to take into account four additional offences on two Form 1 documents: two counts of intimidation and two further counts of sexual intercourse without consent.

The offending arose from a short intimate relationship. After the complainant sought to end the relationship, the applicant grabbed and squeezed her throat on one occasion, intimidated her outside a medical centre on another, and then sexually assaulted her multiple times during a visit to collect his belongings. The complainant recorded that final encounter on her mobile phone. The applicant continued throughout despite the complainant repeatedly saying no.

On 6 December 2023, Judge Payne imposed an aggregate sentence of six years' imprisonment commencing 11 October 2022, with a non-parole period of three years. The applicant sought leave to appeal on three grounds.

  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge failed to give full effect to the Bugmy principles by not sufficiently reducing the applicant's moral culpability on account of his mental health conditions and harsh upbringing
  • Whether the sentencing judge erred in assessing the objective seriousness of the two principal sexual intercourse offences (counts 4 and 8) by impermissibly using the Form 1 matters to elevate that assessment

Decision

Ground 1: Manifest excess. The Court dismissed this ground, finding that the aggregate sentence was not manifestly excessive. The applicant's comparison with Moore v R [2024] NSWCCA 115 did not demonstrate error. If anything, the indicative sentences in Moore confirmed that those imposed here were entirely open to the sentencing judge. The Court also noted that any proportionate reduction to the non-parole period would have produced a result inconsistent with the seriousness of the overall offending.

Ground 2: Bugmy findings. The High Court's decision in Bugmy v The Queen (2013) 249 CLR 571 requires sentencing courts to give genuine weight to a deprived background and its causal connection to offending. The sentencing judge here accepted that the applicant's mental health conditions and harsh upbringing reduced his moral culpability and established a causal link to the offending. The judge did not extinguish that culpability entirely, nor did she disregard general deterrence. The Court found this approach correctly applied the Bugmy principles and disclosed no error.

Ground 3: Objective seriousness. The applicant contended that the sentencing judge had inflated the objective seriousness of counts 4 and 8 by reference to the Form 1 offences. The Court rejected this characterisation. The sentencing judge's reference to the Form 1 matters went to the level of penalty, not to the assessment of objective seriousness itself. Those are distinct inquiries. The Court also noted that the finding of a completely unreasonable belief in consent was well supported by the agreed facts, and no House v King error in the exercise of sentencing discretion was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Form 1 offences may legitimately increase the overall penalty without that process altering the separately assessed objective seriousness of the principal offence.
  • A sentencing judge applying Bugmy principles is not required to extinguish moral culpability or remove the weight given to general and specific deterrence. Genuine recognition of a causal link between background and offending, resulting in some reduction in culpability, constitutes full effect being given to those principles.
  • Comparisons with other decided cases do not demonstrate manifest excess unless they show that the indicative or aggregate sentences imposed were not ones reasonably open to the sentencing judge on the facts.
  • Where a complainant's repeated verbal refusals are recorded and formed part of the agreed facts, a finding of completely unreasonable belief in consent is well supported and difficult to challenge on appeal without showing a House v King error in the exercise of discretion.
  • No error was established across all three grounds, and the six-year aggregate sentence with a three-year non-parole period was upheld in full.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 33, 61, 61HA (repealed), 61HK, 61I
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v King (1936) 55 CLR 499; [1936] HCA 40
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Lloyd v R [2022] NSWCCA 18
- MF v R [2024] NSWCCA 42
- Moore v R [2024] NSWCCA 115
- Mulato v R [2006] NSWCCA 282
- R v Cook [2023] NSWCCA 9
- Saffin v R [2020] NSWCCA 246
- Sypher v R [2020] NSWCCA 336