Cordeiro v R [2019] NSWCCA 308

Cordeiro v R [2019] NSWCCA 308

On the whole of the evidence, including the complainant's lack of recollection, the circumstances leading to her being asleep, the medical and DNA evidence, the applicant's initial denial that anything had happened, and his suggestive conduct towards the complainant, it was open to the jury to reject the applicant's account and be satisfied beyond reasonable doubt of guilt. The sentencing judge's findings relevant to objective seriousness, including that the applicant knew the complainant was not interested in sexual contact, knew she was asleep, acted predatorily, and was in a limited position of authority, were open on the evidence; no sentencing error was established.

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From the District Court Following Jury Conviction and Sentence
Outcome
Leave granted to appeal against conviction and sentence; both appeals dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'unreasonable Verdict' 'consent Where Complainant Asleep' 'objective Seriousness' 'position of Authority' 'predatory Conduct']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'unreasonable Verdict' 'consent Where Complainant Asleep' 'objective Seriousness' 'position of Authority' 'predatory Conduct']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From the District Court Following Jury Conviction and Sentence

Legal Issues

  1. 1 ["Whether the jury's verdict of guilty for sexual intercourse without consent was unreasonable or could not be supported by the evidence." 'Whether it was open to the jury to find that the complainant was asleep at the time of digital penetration and therefore did not consent.' "Whether the applicant's account of consensual sexual contact had to be accepted as a reasonable possibility." "Whether the sentencing judge erred in assessing the objective seriousness of the offence, including findings about the complainant's lack of sexual interest, the applicant's knowledge that she was asleep, predatory conduct, position of authority, trust and vulnerability."]

Ratio Decidendi

On the whole of the evidence, including the complainant's lack of recollection, the circumstances leading to her being asleep, the medical and DNA evidence, the applicant's initial denial that anything had happened, and his suggestive conduct towards the complainant, it was open to the jury to reject the applicant's account and be satisfied beyond reasonable doubt of guilt. The sentencing judge's findings relevant to objective seriousness, including that the applicant knew the complainant was not interested in sexual contact, knew she was asleep, acted predatorily, and was in a limited position of authority, were open on the evidence; no sentencing error was established.

Court Disposition

Leave granted to appeal against conviction and sentence; both appeals dismissed.

Orders

  • ['Leave granted to appeal against conviction; appeal dismissed.' 'Leave granted to appeal against sentence; appeal dismissed.']