Saffin v R [2020] NSWCCA 246

Saffin v R [2020] NSWCCA 246 · Read the judgment on AustLII

Catchwords: ‘Consent’ in sex offences – fact finding on sentence

Despite being a sentence appeal, this decision sheds some light on how the law of consent works in the context of sex offences. After reiterating that a sentencing judge is not obliged to accept the defence version on sentence just because they do not accept the prosecution version, the Court went on to analyse (and distinguish, to the extent that is possible) the three culpable states of mind in relation to consent.

The applicant was convicted at trial of 13 counts of sex offences, all arising from a course of conduct spanning about three or four hours in one night. He drove to an isolated part of the countryside where he forced the victim to participate in a variety of sexual acts, and performed some sex acts on the victim. The defence case at trial (not accepted by the jury) was that the acts had been consensual.

On sentence, there was a body of psychological evidence. Relevantly to this summary, that material diagnosed the applicant with an Autism Spectrum Disorder, and suggested that may have impacted upon the applicant’s ability to correctly identify whether the victim was uncomfortable and had withdrawn consent. The sentencing judge sentenced the applicant on the basis he had been reckless as to consent. The applicant was sentenced to 14 years, with a non-parole period of 9 years and 4 months. He appealed on grounds including that the sentencing judge had erred in relation to his finding as to the applicant’s state of mind in relation to consent (the only ground considered here).

At the time, the appliable definition of ‘consent’ was found in s61HA of the Crimes Act; a practically identical definition (but applicable to a broader range of offences) is now found in s61HE. The definition provides that a person has knowledge about a lack of consent if they (a) know the complainant did not consent (i.e. had actual knowledge); (b) are reckless as to whether or not the complainant consented; or (c) had no reasonable grounds for believing that the complainant was consenting. In this case, the trial had been run on the basis that the applicant could be found guilty on any of those three grounds, so that on sentence it was for the judge to make up his own mind as to which state of mind applied. The sentencing judge accepted there was a ‘possibility’ that the applicant believed the victim had been consenting but ultimately went on to find that he had been reckless. On appeal the applicant argued that, given the sentencing judge had accepted there was a possibility he believed there was consent – thereby, so he argued, correctly rejecting actual knowledge – the judge should not have treated the applicant as bearing the onus of establishing on the balance of probabilities that of the two remaining states of mind (recklessness, or no reasonable grounds for belief in consent), the less serious of the two remaining bases applied in this case.

The CCA (Basten JA, with whom Rothman and Price JJ agreed) rejected that argument. Earlier High Court authority establishes that, where there are two possibilities, just because a judge cannot be satisfied of the explanation proffered by the prosecutor, it does not follow that they must sentence on the basis of the alternative explanation. A sentencing judge must do their best to find the facts which determine the nature and gravity of the offending, including the facts that inform the offender’s moral culpability. But it is not always possible to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on sentence. Where that happens, the sentencing judge must proceed on the basis of what is proved and leave to one side what is not proved to the relevant standard (at [48]).

In this case, the sentencing judge was satisfied beyond reasonable that the applicant was reckless as to whether or not the victim was consenting. There is no inconsistency between this conclusion and a finding that there was a reasonable possibility that the applicant believed (unreasonably) that the victim was consenting. Acceptance of a reasonable possibility is necessarily not a finding that the belief existed at any relevant level of satisfaction [i.e. on the balance of probabilities, or beyond reasonable doubt]. The separate states of mind in s 61HA(2) [now, s61HE(3)] do not create discrete and independent categories. The idea that a person ‘knows’ that someone is not consenting involves the formation of a belief at a certain level of conviction. Depending on the circumstances, that might be negated by a hope or expectation that the other person is consenting, or even a disregard of indications to the contrary. A disregard of the circumstances so as not to form an opinion will readily lead to a finding that the person was reckless as to consent. There is no clear dividing line between pars (a) [actual knowledge as to a lack of consent] and (b) [recklessness]. Paragraph (c) [a lack of reasonable grounds as to a belief about consent] does not in terms refer to an actual belief, but only to a lack of grounds for such a belief. It is only if that finding is accompanied by a finding as to an actual belief in consent that par (c) is distinguishable in terms of culpability from pars (a) and (b) (all at [49]-[50]).

To restate some of that in a way not expressed in the judgment: par (c) will only involve a lower level of culpability if the person had no reasonable grounds for such a belief, and the offender also actually held such a belief. Here, the sentencing judge thought it was possible that the applicant believed the complainant was consenting, but no more than a possibility. Just because the sentencing judge could not exclude that possibility, it did not follow that he was obliged to accept it.

For that and other reasons, the appeal was dismissed.