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Court of Criminal Appeal 1 April 2026

Knight v R

[2026] NSWCCA 31

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT OBJECTIVE SERIOUSNESS MORAL CULPABILITY

Citation: [2026] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 1 April 2026
Judge(s): Wright J; Fagan J; Rigg J

Background

The applicant, a 66-year-old man from a rural NSW community, sought leave to appeal his aggregate sentence of 4 years' imprisonment (with a non-parole period of 2 years and 9 months) for two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offences were committed against a 42-year-old male friend on the night of 18–19 December 2022.

The two men had been close friends for approximately two years. The victim accepted an invitation to have dinner at the applicant's home. After an evening involving alcohol and cannabis, the victim fell asleep in a front room. He later woke to find that his lower clothing had been removed and the applicant was performing fellatio on him while simultaneously digitally penetrating his anus. When the victim told the applicant to stop, the applicant immediately ceased, apologised, and left the room. The victim suffered pain and bleeding from the anal penetration.

The applicant pleaded guilty to the first count (fellatio) and received a 25% sentencing discount. He pleaded not guilty to the second count. He was tried by judge alone on a charge of aggravated sexual assault (s 61J(1)), was acquitted of that more serious charge, but was convicted of the alternative s 61I offence based on the same facts. In imposing sentence, Judge McGuire SC in the District Court found that the offending was opportunistic rather than planned. However, the applicant's central contention on appeal was that the sentencing judge failed to give adequate weight to his motive — which the trial judge had characterised as a "misguided act of love, or sexual attraction" — as a factor mitigating the objective seriousness of his offending.

  • Ground 1: Whether the sentencing judge erred in failing to take into account the applicant's motive and intention — specifically, his professed love and sexual attraction toward the victim — when assessing the objective seriousness of the offending.

  • Ground 2: Whether the aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years and 9 months was manifestly excessive in all the circumstances.

Decision

On Ground 1, the Court of Criminal Appeal held that the sentencing judge did not err. The Court found that his Honour had in fact considered the applicant's motive of love and sexual attraction but concluded that it did not reduce either the applicant's moral culpability or the objective seriousness of the offences. The Court reasoned that in circumstances where the applicant knowingly engaged in sexual conduct with the victim while the victim was unconscious and wholly incapable of consenting, it was open to the sentencing judge to find that the applicant's subjective feelings of love or attraction did not operate as a mitigating factor. The Court referred to established authority in Tepania v R [2018] NSWCCA 247 and R v RE [2023] NSWCCA 184 in reaching this conclusion.

Importantly, the Court's reasoning implicitly underscores a key principle: the gravity of sexual offending against a person incapable of consenting is not diminished by the offender's characterisation of their own emotional state. The applicant's recorded statements — including that he "could not help himself," that there had been "mutual sexual tension," and that the victim had engaged in "prick teasing" — if anything, indicated a sense of entitlement rather than a factor warranting leniency. The sentencing judge was entitled to weigh these matters accordingly.

On Ground 2, the Court held that the aggregate sentence was not manifestly excessive. Taking into account all relevant sentencing considerations — including the applicant's age, disability, chronic pain, lack of prior criminal history, genuine remorse, good rehabilitation prospects, counselling engagement, and the more onerous nature of custody for him — the Court found the sentence was within the range reasonably open to the sentencing judge. The sentencing judge had already departed from the default statutory ratio between the non-parole period and head sentence (reducing it to approximately 61%) on account of special circumstances, including the applicant's personal vulnerabilities. The Court was not persuaded that the result was unreasonable or plainly unjust.

Leave to appeal was granted on both grounds, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted on both grounds.
  • Appeal dismissed.
  • The aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years and 9 months was confirmed.

Key Takeaways

  • A motive of "love" or sexual attraction does not, of itself, mitigate the objective seriousness of sexual offending against an unconscious or non-consenting victim. Where the offender was aware the victim could not consent, emotional or romantic motivations carried little or no weight in reducing culpability.

  • The Court of Criminal Appeal affirmed that sentencing judges are not required to treat an offender's subjective feelings as mitigatory merely because those feelings are characterised in positive emotional terms. It was open to the sentencing judge to acknowledge the motive but decline to give it mitigating weight.

  • Statements by the offender expressing entitlement to sexual contact (such as attributing blame to the victim's perceived behaviour or claiming an inability to control oneself) undercut rather than supported any argument for leniency based on motive.

  • In dismissing the application for leave to appeal on the "manifestly excessive" ground, the Court confirmed that even substantial personal mitigating circumstances, including age, disability, remorse, absence of prior record, and engagement in counselling, did not render the aggregate sentence outside the available range for two s 61I offences involving a vulnerable, unconscious victim.

  • Motive-based mitigation arguments in sexual offence sentencing carry limited force where the gravamen of the offence is the absence of consent. The Court treated the victim's autonomy and vulnerability as the central considerations in assessing objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v RE [2023] NSWCCA 184
- Tepania v R [2018] NSWCCA 247
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64