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Court of Criminal Appeal 8 May 2024

Rawat v R

[2024] NSWCCA 64

Sexual offences
CRIME APPEALS APPEALS AGAINST SENTENCE MANIFEST EXCESS NO ERROR IN FACTUAL FINDING ESTABLISHED MANIFEST EXCESS NOT ESTABLISHED

Citation: Rawat v R [2024] NSWCCA 64
Court: Court of Criminal Appeal, NSW
Date: 8 May 2024
Judges: Wright J, Chen J, McNaughton J

Background

The applicant pleaded guilty on 6 March 2023 to one count of sexual touching under s 61KC(a) of the Crimes Act 1900 (NSW), following an incident in the early hours of 20 March 2022. The offence involved the applicant forcibly removing the underwear of a 20-year-old woman he had met that evening, and rubbing his penis against her until he ejaculated. The victim had verbally told him to stop, and the agreed facts recorded that she felt overpowered.

The applicant was sentenced on 22 August 2023 by Haesler SC DCJ in the District Court to 1 year and 10 months' imprisonment, with a non-parole period of 11 months. The sentencing judge considered an Intensive Correction Order (ICO) but concluded it would not sufficiently serve the purposes of sentencing, including victim vindication, retribution, and general deterrence.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: first, that the sentencing judge made a factual error regarding his understanding of consent; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the applicant had a "considerable lack of understanding of issues relating to consent"
  • Whether that finding was inconsistent with the concurrent finding that the applicant was "unlikely to reoffend"
  • Whether the overall sentence of 1 year and 10 months' imprisonment was manifestly excessive

Decision

Ground 1: Factual finding on consent understanding

The Court found no error in the sentencing judge's finding that the applicant had a considerable lack of understanding of consent. That finding was supported by material before the sentencing judge, including a Corrective Services Sentence Assessment Report recording that the applicant maintained he believed the contact was consensual, and a Structured Case Note indicating he had "limited understanding when it comes to questions of consent."

McNaughton J (with whom Wright J specifically agreed) noted that the impugned finding at [63] of the sentencing remarks was made in the context of evaluating community safety as the paramount consideration for an ICO. The Court held there was no inconsistency between finding the applicant had a poor understanding of consent and simultaneously finding him unlikely to reoffend: the latter reflected the deterrent effect of the consequences he had already faced, not an endorsement of his understanding of consent.

Ground 2: Manifest excess

The Court examined comparable sentencing decisions, including those referred to in Baines v R [2016] NSWCCA 132, which concerned the former offence of indecent assault under s 61L of the Crimes Act. Chen J found those cases were either insufficiently similar to demonstrate manifest excess, or where similar, tended to confirm the sentence fell within the permissible range.

Sentencing statistics from the Judicial Commission of NSW for offences under s 61KC(a) were also considered, but the Court found they lacked sufficient granularity to support a conclusion that the sentencing exercise had miscarried. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave granted to the applicant to appeal against the sentence imposed on 22 August 2023
  • Appeal against sentence dismissed

Key Takeaways

  • A sentencing court's finding that an offender has a poor understanding of consent is not rendered inconsistent simply because the same court also finds the offender is unlikely to reoffend: those findings can coexist where the low reoffending risk is attributable to the deterrent effect of proceedings rather than any corrected understanding.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that comparative sentencing cases must be sufficiently similar in their facts to support a finding of manifest excess; loose similarity is insufficient.
  • Sentencing statistics published by the Judicial Commission of NSW may not always provide enough granular detail to establish that a particular sentence fell outside an acceptable range, particularly for a relatively recent offence category.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration when a sentencing court assesses whether an ICO is appropriate, and findings made in that specific context must be understood accordingly.
  • No error was established in the sentencing judge's refusal to treat the offending as falling at the lowest end of the objective seriousness spectrum, given the victim's explicit, repeated requests to stop and the physical force used to overcome her resistance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61KC(a), 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Baines v R [2016] NSWCCA 132
- AB v The Queen (1999) 198 CLR 111
- Hili v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Wong v The Queen (2001) 207 CLR 584
- Lowndes v The Queen (1999) 195 CLR 665
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Moodie v The Queen [2020] NSWCCA 160
- Geraghty v R [2023] NSWCCA 47
- Wright v R [2019] NSWCCA 134
- Aktar v The Queen [2015] NSWCCA 123
- Amante v R [2020] NSWCCA 34
- Jalloh v R [2009] NSWCCA 295
- Jiang v R [2010] NSWCCA 277
- R v Harris [2015] NSWCCA 81
- R v Qin [2008] NSWCCA 189
- Salmond v R [2010] NSWCCA 141
- Sharma v R [2010] NSWCCA 338
- Smith v R [2020] NSWCCA 181
- Taitoko v R [2020] NSWCCA 43