AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 23 December 2025

OR v R

[2025] NSWCCA 234

Sexual offencesAssault & violenceDomestic & family violence

Citation: OR v R [2025] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 23 December 2025
Judges: Mitchelmore JA (principal judgment); Cavanagh J and McGuire J (agreeing)

Background

The appellant was tried before a judge alone in the District Court on eight counts arising from conduct against his intimate partner between August 2020 and July 2022. The charges included intimidation, intentional choking without consent, common assault, sexual intercourse without consent, and four counts of aggravated sexual intercourse without consent. The aggravating circumstance alleged across the latter counts was the reckless infliction of actual bodily harm at the time of, or immediately before or after, the commission of each offence.

The trial judge found the appellant guilty of seven counts (and the statutory alternative to one count), then imposed an aggregate sentence of 18 years' imprisonment with a non-parole period of 10 years.

The appellant applied out of time for leave to appeal both conviction and sentence. The Crown confined its opposition to the extension of time to the merits of the substantive appeal rather than the delay itself.

  • Whether the trial judge failed to apply the second and third limbs of the Liberato direction (which relates to how a fact-finder must approach a conflict between an accused's account and a complainant's account)
  • Whether the verdicts were unreasonable or unsupported by the evidence, including whether the aggravating circumstance under s 61J(2)(a) of the Crimes Act 1900 (NSW) was established for each of counts 6 to 8
  • Whether the sentencing judge erred in assessing the objective seriousness of individual counts (counts 1, 2, 4, and 5 to 8)
  • Whether the sentencing judge misapplied the totality principle
  • Whether the aggregate sentence of 18 years was manifestly excessive

Decision

Conviction appeal dismissed. The Court found no error in the trial judge's application of the Liberato direction. Her Honour's reasoning demonstrated an orthodox application of the direction, and the appellant's contention on this ground was not established.

On the unreasonable verdict ground, the Court independently assessed the evidence and was satisfied it was sufficient in nature and quality to exclude any reasonable doubt as to guilt. A significant legal question arose regarding the aggravating circumstance in s 61J(2)(a): whether that provision required the sexual intercourse itself to cause the actual bodily harm, and whether the Crown had to prove separately that actual bodily harm occurred at the time of each individual count. The Court confirmed that the provision does not require the sexual intercourse to cause the harm, and does not require specificity as to when the harm was inflicted within the prescribed timescale. The fault element (intentional or reckless infliction) must be directed to and contemporaneous with the infliction of the actual bodily harm, not with the sexual intercourse. Cavanagh J added that the complainant's contemporaneous complaints of escalating pain and anal bleeding were sufficient to establish actual bodily harm for each of counts 6 to 8, without any requirement for corroborating medical evidence.

Sentence appeal allowed. The Court rejected the grounds alleging that the sentencing judge had failed to assess individual counts for objective seriousness or had taken a blanket approach to counts 5 to 8. On a fair reading of the remarks on sentence, her Honour had considered each count individually and rejected the appellant's submissions that some counts were comparatively less serious. However, the Court accepted the totality and manifest excess grounds. While none of the individual indicative sentences was excessive, the aggregate sentence of 18 years was disproportionate to the total criminality involved and was therefore manifestly excessive. The Court resentenced the appellant to a reduced aggregate term.

Orders Made

• Leave is granted to file an application for leave to appeal against conviction and sentence with effect from 1 July 2025
• Grant leave to appeal against conviction on ground 2
• Dismiss the appeal against conviction
• Grant leave to appeal against sentence
• Allow the sentence appeal
• Quash the sentence imposed on the applicant in the District Court at Campbelltown on 21 June 2024
• Sentence the applicant to an aggregate term of imprisonment of 13 years and 6 months to commence on 19 March 2024 and expire on 18 September 2037, with a non-parole period of 8 years
• The earliest date on which the applicant will be eligible for release on parole is 18 March 2032

Key Takeaways

  • Section 61J(2)(a) of the Crimes Act 1900 (NSW) does not require the sexual intercourse to cause the actual bodily harm. The provision expressly contemplates harm inflicted immediately before or after the offence, and may extend to harm inflicted on a person other than the complainant.
  • The fault element for the aggravating circumstance in s 61J(2)(a) must be intentional or reckless infliction of the actual bodily harm, with that mental state directed to and contemporaneous with the act of infliction, not with the sexual intercourse itself.
  • Proving actual bodily harm for the purposes of an aggravated intercourse count does not require medical evidence. Contemporaneous complaints from the person alleging harm can, depending on the circumstances, be sufficient.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an orthodox Liberato direction by a judge sitting alone will not found appellate error merely because the direction is challenged; the focus is on whether the reasoning process was correctly applied.
  • An aggregate sentence may be manifestly excessive even where none of the individual indicative sentences is itself excessive. The aggregate must proportionately reflect the totality of the criminality, and the Court of Criminal Appeal will intervene where it does not.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 61, 61I, 61J
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Liberato v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- R v Hitchins & Elliott [1983] 3 NSWLR 318
- R v Attard (CCA NSW, Gleeson CJ, 20 April 1993, unrep)
- Kentwell v The Queen (2014) 252 CLR 601
- Muldrock v The Queen (2011) 244 CLR 120
- Dansie v The Queen (2022) 274 CLR 651
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v ZT (2025) 281 CLR 137
- Irmak v R; Dagdanasar v R [2021] NSWCCA 178
- Papadopoulos v R [2007] NSWCCA 274
- Kramer v R; R v Kramer [2023] NSWCCA 152
- Noonan v R [2021] NSWCCA 35
- Aryal v R [2021] NSWCCA 2
- KS v R [2024] NSWCCA 147
- LS v R [2024] NSWCCA 110
- MJL v R [2007] NSWCCA 261
- MD v R [2015] NSWCCA 37
- Lee v R [2023] NSWCCA 203
- Baker v R [2023] NSWCCA 262