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Court of Criminal Appeal 29 October 2025

Chen v R

[2025] NSWCCA 173

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE ALLEGED MATERIAL ERROR OF FACT NO POINT OF PRINCIPLE

Citation: Chen v R [2025] NSWCCA 173
Court: Court of Criminal Appeal, New South Wales
Date: 29 October 2025
Judge(s): Adamson JA; Fagan J; Coleman J

Background

The applicant pleaded guilty in the District Court to two offences committed against the complainant at her home in West Ryde on 16 August 2022: attempted sexual intercourse without consent, and assault occasioning actual bodily harm. The applicant and complainant had been in an extramarital relationship since 2018. On the night in question, the applicant attended her home after consuming alcohol and, following a confrontation about her work as a sex worker, physically attempted to initiate sexual intercourse.

The plea to the attempted sexual intercourse charge was entered on the basis that the applicant was reckless as to whether the complainant was consenting, rather than that he had actual knowledge of her non-consent. District Court Judge Pickering SC sentenced the applicant to an aggregate term of 2 years and 3 months imprisonment, with a non-parole period of 1 year and 2 months.

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentencing judge made a material error of fact.

  • Whether the sentencing judge made a material error of fact in finding that the applicant "acted in a fashion where he was just going to have sex with [the complainant] essentially no matter what."
  • Whether that finding was foreclosed by the fact that the applicant desisted from his attempt after the complainant kicked him away.
  • Whether the applicant's admission of recklessness, through his guilty plea, was consistent with the sentencing judge's characterisation of his state of mind.

Decision

The sole ground pressed at the hearing was the alleged factual error in the sentencing judge's characterisation of the applicant's state of mind. The applicant's counsel argued that, because the applicant ceased his conduct once the complainant kicked him, it was not open to find that he intended to proceed "no matter what." The argument was that a person truly determined to have sex regardless of consent would not have stopped.

The Court of Criminal Appeal rejected this reasoning entirely. The fact that the applicant did not complete the act was precisely why the charge was one of attempt only. The Court held that it remains open to a tribunal of fact to find, where an offender broke off conduct before penetration, that he was reckless about consent in the sense of excluding consideration of the complainant's wishes while proceeding as far as he did.

The Court further held that the applicant's own insistence on pleading on the basis of recklessness, rather than actual knowledge, amounted in the circumstances to exactly the finding the applicant was challenging. The admission of recklessness meant he had proceeded with the physical acts of the attempt without turning his mind to the complainant's wishes, which was precisely what the sentencing judge found. No arguable ground of appeal was established.

Orders Made

  • Leave to appeal against sentence is refused.

Key Takeaways

  • Desisting before penetration does not, of itself, foreclose a finding that an offender was reckless as to consent while proceeding with the physical acts constituting an attempt at sexual intercourse.
  • A guilty plea entered on the basis of recklessness as to consent carries implicit admissions about the offender's state of mind that are available to the sentencing court when assessing the nature and gravity of the conduct.
  • The Court of Criminal Appeal confirmed that recklessness is not, as a matter of law, necessarily a less serious form of state of mind than actual knowledge of non-consent; each case depends on its own facts.
  • No error arises from a sentencing judge characterising an offender's conduct as proceeding "no matter what" the complainant's wishes where the plea and agreed facts support that inference.
  • In refusing leave, the Court found the proposed ground of appeal was not arguable, making this a decision of no general point of principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes Act 1900 (NSW), s 61HK(1) (knowledge of non-consent: actual knowledge and recklessness)
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)

Cases: No specific cases were cited in the text provided.