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District Court 7 July 2025

RB v R

[2025] NSWDC 247

Sexual offencesDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AND REVIEWS APPEAL AGAINST CONVICTION SEXUAL OFFENCES CARRYING OUT SEXUAL ACT WITHOUT CONSENT DOMESTIC VIOLENCE OFFENCES

Citation: RB v R [2025] NSWDC 247
Court: District Court of New South Wales
Date: 7 July 2025
Judge: Abadee DCJ

Background

The appellant was convicted in the Downing Centre Local Court of three counts of carrying out a sexual act with another person without consent (under s 61KE(a) of the Crimes Act 1900 (NSW)) and one count of stalking or intimidation (under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). He had separately pleaded guilty to behaving in an offensive manner in or near a public place. The convictions arose from a series of incidents at Sydney railway stations in 2022, during which the appellant used the AirDrop function on his Apple iPod to send images of a penis to unsuspecting recipients on their mobile phones.

The conduct spanned several discrete incidents. In two incidents at Town Hall station and one on a train from North Sydney, complainants received or were subjected to repeated attempts to send the images. In the intimidation incident, one complainant at Town Hall station declined all notifications and received nothing. The Local Court sentenced the appellant to community corrections orders and fines for the contested offences.

The appellant brought an all-grounds appeal against the four convictions, and separately appealed the severity of the sentence for the offensive behaviour plea. The District Court heard the conviction appeals, which turned primarily on whether the prosecution had proved the mental elements of the offences beyond reasonable doubt.

  • Whether the appellant "carried out an act towards" each complainant for the purposes of the non-consensual sexual act offences, given AirDrop was used to transmit images rather than physically engaging with complainants
  • Whether the images sent constituted a "sexual act" within the statutory definition
  • Whether the complainants consented and whether the appellant knew they did not consent
  • Whether the prosecution proved, for the intimidation offence, that the appellant either intended to cause the complainant to fear physical or mental harm, or knew that his conduct was likely to cause such fear (the mental element under ss 13(1) and 13(3))

Decision

The District Court upheld all four conviction appeals and set aside each conviction. The court's reasoning addressed the elements of both offences, with particular focus on the mental state of the appellant.

On the non-consensual sexual act charges, the court noted that the physical elements were largely uncontested: images of a penis were transmitted by AirDrop from the appellant's device, and the complainants did not consent. The contested question was whether the prosecution had proved the remaining elements, including that the acts were directed "towards" the complainants and that the appellant knew they did not consent. The court found the prosecution had not established these elements to the required standard on the evidence.

On the intimidation charge, the court applied the framework from McIlwraith v R [2017] NSWCCA 13, which confirmed that the mental element in s 13(1), read with s 13(3), can be satisfied either by direct intent to cause fear or by knowledge that the conduct was likely to cause fear. The court accepted that the complainant may well have felt harassed, but found the appellant's evidence credible to the extent that he genuinely, if misguidedly, regarded the conduct as humorous rather than threatening. His state of mind was characterised as one of recklessness as to whether a recipient might feel fearful, a mental state insufficient to satisfy the offence. The court observed that the appellant's character evidence and his own evidence about his intentions needed to be taken into account, even if his conduct reflected immaturity and poor judgment.

The court expressly declined to make findings about whether the appellant had any cognitive or mental health impairment, or what effect any such impairment may have had on his conduct, noting this was unnecessary given the conclusions already reached.

Orders Made

  • The appeals against convictions for sequences 4, 5, 7 and 9 are upheld and each of those convictions is set aside.
  • The sentences imposed on 26 September 2024 for sequences 4, 5, 7 and 9 are set aside.
  • The severity appeal in relation to sequence 2 (offensive behaviour) was dealt with separately; those reasons and orders were not published.

Key Takeaways

  • The District Court held that recklessness as to whether a recipient might fear physical or mental harm is insufficient to satisfy the mental element of the stalking or intimidation offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, even when read with the lower threshold in s 13(3).
  • Under s 13(3), a person "intends" to cause fear if they know their conduct is likely to cause fear in the other person; proof of actual intent is not required, but mere recklessness falls short of the knowledge threshold.
  • A finding that a complainant subjectively felt harassed does not, of itself, establish that the accused possessed the requisite mental state for the intimidation offence.
  • For the non-consensual sexual act offences under s 61KE(a), there must be intentional engagement with the complainant from which it can be inferred the act was directed at that person; the mere presence of a person (physically or electronically) at the time an act is carried out is insufficient (following DPP (NSW) v Presnell [2022] NSWCCA 146).
  • Where an accused's evidence of a subjective (if implausible or socially unacceptable) belief about their own conduct remains unrefuted beyond reasonable doubt, that evidence must be weighed alongside character evidence when assessing whether a specific mental element has been proved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HC, 61HK, 61KE(a), 344A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1), (3), (4), (5)
- Summary Offences Act 1988 (NSW), s 4(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14

Cases
- Byers v R [2025] NSWDC 119
- DPP (NSW) v Presnell [2022] NSWCCA 146
- McIlwraith v R [2017] NSWCCA 13
- R v Chonka [2000] NSWCCA 466
- The Queen v Baden-Clay (2016) 258 CLR 308