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Court of Criminal Appeal 15 November 2024

Slater v R

[2024] NSWCCA 210

Sexual offences
CRIMINIAL LAW SENTENCE APPEAL SEXUAL ASSAULT CRIMES ACT S 61I RECKLESSNESS

Citation: Slater v R [2024] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 15 November 2024
Judges: Harrison CJ at CL, Davies J, Rigg J (unanimous)

Background

The applicant pleaded guilty in the District Court at Nowra to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. The offending occurred at a birthday party, where the applicant digitally penetrated a sleeping woman he had met only briefly the previous evening. The victim woke during the act, believing the applicant to be her partner who had been sharing the mattress with her.

The sentencing judge, O'Brien DCJ, imposed a sentence of 23 months imprisonment with a non-parole period of 13 months. The case was sentenced on the agreed basis that the applicant was reckless as to the absence of consent, having been significantly intoxicated at the time.

The applicant sought leave to appeal that sentence on two grounds: first, that the sentencing judge had assessed the degree of recklessness and the objective seriousness of the offence too highly; and second, that the judge had erred by not finding that the applicant's circumstances warranted a non-custodial sentence.

  • Whether the sentencing judge erred in characterising the recklessness as being "to at least a moderate degree" and placing the objective seriousness of the offence below the mid-range but not at the bottom of the range.
  • Whether the sentencing judge erred by declining to impose a non-custodial sentence, given the applicant's personal circumstances and what was described as a "powerful subjective case."

Decision

Ground 1: Objective seriousness and degree of recklessness

The Court of Criminal Appeal rejected the argument that the sentencing judge had erred in his assessment of recklessness. Recklessness for the purposes of s 61I requires either that the accused recognised a possibility that the complainant was not consenting, or that the accused failed entirely to turn their mind to the issue of consent (when a reasonable person in their position would have recognised the risk). The applicant's counsel sought to advance a third, intermediate category, where the accused had some "haziness" about the risk, but the Court rejected this formulation as inconsistent with the established framework.

The Court noted it would have been preferable for the sentencing judge to confirm explicitly which form of recklessness applied. However, no such finding was required between the two recognised forms, and the finding of recklessness "to at least a moderate degree" was clearly open on the agreed facts. The placement of objective seriousness below the mid-range but not at the bottom was also found to be well open.

Ground 2: Non-custodial sentence

The Court considered all circumstances of both the offence and the offender, including the applicant's lack of relevant prior convictions, alcohol use disorder diagnosis, remorse, positive prognosis, and significant community and family responsibilities. Despite acknowledging the applicant's strong subjective case, the Court held it was plainly open to the sentencing judge to conclude that no penalty other than imprisonment was appropriate. The determination was neither unreasonable nor plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Recklessness under s 61I of the Crimes Act 1900 (NSW) is confined to two established forms: recognising the possibility of non-consent and proceeding regardless, or failing entirely to consider the issue of consent where the risk would have been apparent. The Court of Criminal Appeal rejected the existence of a third intermediate category involving mere "haziness" about consent.
  • Where an offence is sentenced on an agreed basis of recklessness, the sentencing court is not obliged to determine which of the two established forms of recklessness applied, though it would be desirable to confirm the basis where submissions are made about it.
  • A strong subjective case, including remorse, positive psychological prognosis, absence of relevant prior convictions, and significant personal responsibilities, does not automatically render a non-custodial sentence available for a sexual assault offence.
  • In dismissing the appeal, the Court confirmed that the sentencing judge's finding of "at least moderate" recklessness and placement of objective seriousness below mid-range but above the bottom was clearly open on the agreed facts of this case.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must be satisfied that no penalty other than imprisonment is appropriate before imposing a custodial sentence. Here, the sentencing judge's satisfaction of that threshold was upheld as plainly available.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61HE, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 21A, 54A, 54B
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Banditt v R (2005) 224 CLR 262; [2005] HCA 80
- Cornish v R [2024] NSWCCA 177
- Fisher v R; R v Fisher [2021] NSWCCA 91
- House v King (1936) 55 CLR 499; [1936] HCA 40
- Kelly v R [2022] NSWCCA 189
- Lee v R [2023] NSWCCA 203
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Alcazar [2017] NSWCCA 51
- R v Ibrahim [2021] NSWCCA 296
- Saffin v R [2020] NSWCCA 246
- Tuuholoaki v R [2024] NSWCCA 135