Black, R. v

Factual and Procedural Background

The appellant was charged with multiple sexual offences arising from an incident on 24 November 2019 involving the complainant, referred to as C, and her sister. The appellant, who had met C and her sister that evening, assaulted C by penetration while she was heavily intoxicated and vulnerable. Following the assault, the appellant recorded images of the assault and circulated them to a WhatsApp group. The appellant was arrested on 26 December 2019 and denied non-consensual conduct in interviews but admitted to circulating the images, expressing regret. On 20 November 2023, the appellant pleaded guilty to assault by penetration contrary to section 2 of the Sexual Offences Act 2003, with other charges ordered to lie on the file. He was sentenced on 12 January 2024 to 8 years' imprisonment. The appellant appealed the sentence on the sole ground that it inadequately reflected his mental ill-health, specifically post-traumatic stress disorder (PTSD) diagnosed after a fatal collision he caused post-offence. The appeal was granted leave by the Full Court, and the appellant was represented by Attorney Godfrey KC. The court considered the application of the Sexual Offences (Amendment) Act 1992 to protect the victim's anonymity.

Legal Issues Presented

1. Whether the sentence imposed on the appellant inadequately reflected his mental ill-health, specifically his diagnosis of PTSD.
2. How the sentencing guidelines relating to offenders with mental disorders should be applied in the context of a serious sexual offence requiring a custodial sentence.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that his mental ill-health, particularly PTSD arising after a fatal collision, should have been given greater mitigating weight in sentencing.
• He argued that the impact of a custodial sentence would be more severe on him due to his mental health condition, warranting a reduction in sentence length.
• Fresh evidence was submitted in the form of a report from the appellant's therapist, Joanne Huntley, but it was deemed not to advance the appeal as it did not address the current impact of prison life on his condition.
• The appellant’s counsel indicated that psychiatric treatment and medication continued during imprisonment, but no documentary evidence was provided to substantiate this.

Respondent's Arguments

• The prosecution maintained that the sentencing judge correctly categorized the offence as level 2A harm and culpability under the Sentencing Guidelines for sexual offences.
• They supported the sentence imposed, noting the seriousness of the offence, the vulnerability of the complainant, and aggravating factors including the dissemination of images and deception of the victim.
• They submitted that the mental health mitigation was appropriately considered and did not warrant a reduction of the custodial sentence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the applicability of the Sexual Offences (Amendment) Act 1992 to protect the victim's identity. It accepted the sentencing judge’s classification of the offence as serious with level 2A harm and culpability. The court recognized the appellant’s PTSD diagnosis and the evidence of mental health deterioration, including suicide attempts and ongoing treatment, but agreed with the sentencing judge that the mental health condition did not diminish the appellant’s culpability for the offence. The court emphasized that the Overarching Sentencing Guideline for offenders with mental disorders requires consideration of such impairments but clarifies that mental disorders do not necessarily impact sentencing. The court noted the sentencing judge's error in conflating the cause of the PTSD with its effect but concluded that even with proper consideration, the custodial sentence of 8 years was not manifestly excessive. The court also considered the appellant's counsel’s concession that any reduction for mental health would be marginal and found no sufficient basis to interfere with the sentence.

Holding and Implications

The court DISMISSED THE APPEAL against sentence.

The direct consequence of this decision is that the appellant’s 8-year custodial sentence for assault by penetration stands. The court confirmed that the appellant’s mental ill-health, while a relevant factor, did not justify a reduction in sentence given the seriousness of the offence and the aggravating circumstances. No new legal precedent was established; the ruling affirms the established principle that mental health conditions must be considered in sentencing but do not necessarily reduce culpability or sentence length where serious offences and aggravating factors are present.