Pender v Rex [2023] NSWCCA 291

Pender v Rex [2023] NSWCCA 291

The applicant's intoxication was self-induced, engaging s 21A(5AA) and precluding mitigation on that basis; the sentencing judge correctly disregarded intoxication for both moral culpability and knowledge of consent under the authority of Fisher v R; the assessment of objective seriousness was supported by explicit findings and need not be scaled; personal circumstances were properly considered but did not outweigh seriousness or require reduction; the sentence imposed was not manifestly excessive or plainly unjust.

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Appeal Determined
Outcome
Leave to appeal against sentence granted; appeal dismissed
Legal Topics
['appeal Against Sentence' 'sexual Assault' 'consent and Knowledge of Consent' 'self Induced Intoxication' 'objective Seriousness' 'mitigation – Personal Circumstances' 'manifest Excess' 'sentencing Procedure']
['criminal Law'] ['appeal Against Sentence' 'sexual Assault' 'consent and Knowledge of Consent' 'self Induced Intoxication' 'objective Seriousness' 'mitigation – Personal Circumstances' 'manifest Excess' 'sentencing Procedure']

Case Brief

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Appeal Determined

Legal Issues

  1. 1 ['Whether self-induced intoxication was present and relevant under s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 (NSW)' "Whether sentencing judge erred regarding the applicant's knowledge of absence of consent" 'Whether the assessment of objective seriousness was in error or insufficiently reasoned' "Whether proper weight was given to applicant's background and 'Bugmy factors'" 'Whether sentence was manifestly excessive']

Ratio Decidendi

The applicant's intoxication was self-induced, engaging s 21A(5AA) and precluding mitigation on that basis; the sentencing judge correctly disregarded intoxication for both moral culpability and knowledge of consent under the authority of Fisher v R; the assessment of objective seriousness was supported by explicit findings and need not be scaled; personal circumstances were properly considered but did not outweigh seriousness or require reduction; the sentence imposed was not manifestly excessive or plainly unjust.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed

Orders

  • ['Leave to appeal against sentence granted' 'Appeal dismissed']