Supreme Court to review decision of defence of ‘sexsomnia’

In 2022, Damin Cook was convicted of two sexual offences and sentenced to eight years imprisonment. In the trial, Cook admitted that the acts occurred, but he claimed that he was experiencing sexsomnia. Sexomnia is a type of parasomnia or movement disorder occurring during sleep. Mr Cook said it meant he had acted without conscious volition. 
 
In the District Court, the defence asked the  Judge to rule that his defence was sane automatism. But Judge Garland decided it was insane automatism, applying the Court of Appeal’s 2021 decision of Cameron v R, wherein sexsomnia was classified as a form of insane automatism on the evidence in that case. Because of this, Mr Cook had the burden of showing that he suffered from a disease of the mind to the extent that he did not understand the nature and quality of his act. 
 
The Court of Appeal said that Mr Cook was sentenced  “on the basis that the jury had rejected Mr Cook’s defence that he was asleep and unconscious at the time of the offending”. At the first appeal, Counsel for Cook submitted that Cameron was wrongly decided and the Judge should not follow it. Nevertheless, the Judge followed Cameron and sentenced Cook to eight years in prison. 
 
The key issue the Supreme Court will analyse is the difference between the defences of sane automatism and insane automatism.  Both defences deny criminal responsibility on the basis the defendant lacked control during the offending. The difference between them is that where the lack of control is caused by a “disease of the mind” the defence is insane automatism. If caused by something else, the defence is sane automatism. 
 
For sane automatism, the defendant only needs to provide an evidential foundation that the defence applies. The Crown must exclude the reasonable possibility the defendant acted without conscious volition.  However, for insane automatism, the defendant must prove all the elements of the defence based on the balance of probabilities. Nevertheless, the Court of Appeal reduced Cook’s sentence from eight years to seven by adopting a concurrent approach to sentencing. 

Chief Justice Helen Winkelmann and Justices Susan Glazebrook, Joe Williams, Mark O’Regan and Stephen Kós will hear the case on 23 and 24 July 2024.