[20-600] Statutory scheme in Crimes Act 1900
Part 3 Div 10 Crimes Act 1900 is titled “Offences in the nature of rape, offences relating to other acts of sexual assault etc”. Division 10A contains offences relating to sexual servitude. Unless otherwise specified, references to sections below are references to sections of the Crimes Act.
For commentary on the following offences relating to children see Sexual offences against children at [17-400]ff: ss 61M(2), 66A–66EB, 73, 77 and 80AA (child sexual assault), ss 91C–91H (child prostitution and pornography) and ss 91I–91M (grooming and voyeurism).
[20-604] Change in community attitudes to sexual assault and harm
In R v MJR (2002) 54 NSWLR 368 at , Spigelman CJ said that sexual assault has generally “come to be regarded as requiring increased sentences … by reason of a change of community attitudes”. Mason P at  explained the increased pattern of sentencing for child sexual abuse by reference to the greater understanding of the long-term psychological consequences for the victims and the considered judicial response to changing community attitudes to these crimes.
In DBW v R  NSWCCA 236, the court held that the decision of R v Muldoon (unrep, 13/12/90, NSWCCA) — where it was held that to prove harm, the Crown must adduce evidence in the form of studies of the lasting effects of sexual abuse and, if necessary, a psychiatric assessment — is no longer of assistance today. Chief Justice Spigelman said at  that the effect of sexual abuse was not a matter for expert evidence and “the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse”.
The court again considered the issue of harm in R v King  NSWCCA 117 at :
It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious.
The High Court remarked in The Queen v Kilic (2016) 259 CLR 256 at :
current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.
[20-605] Brief legislative history
The following discussion briefly describes the significant reforms to the laws relating to sexual assault in the past 20 years.
Crimes Amendment Act 1989
This amending Act, which commenced on 17 March 1991, repealed ss 61A–61G and inserted ss 61H, 61I, 61J, 61L, 61M, 61N, 61O and 61P. Maximum penalties for sexual offences were also substantially increased (see below). Parliament recognised the particular vulnerability of children less than 10 years of age by increasing the penalties for aggravated indecent assault and acts of indecency. Section 61I created the offence of sexual intercourse without consent and s 61J the same offence but in circumstances of aggravation. The Criminal Legislation (Amendment) Act 1992 amended the definition of sexual intercourse as defined in s 61H to include penetration, to any extent, of the genitalia of a female person or the anus of any person.
Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001
This amending Act, which commenced on 1 October 2001, created the offence of aggravated sexual assault in company under s 61JA with a maximum penalty of life imprisonment.
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
This amending Act repealed ss 78H and 78I — homosexual intercourse with a child under 10 years and attempt to commit that offence. It replaced each with gender neutral offences under ss 66A and 66B. The maximum penalties were increased from 20 years to 25 years. The Act also introduced standard non-parole periods for offences under ss 61I, 61J, 61JA, 61M(1), 61M(2) and 66A.
Crimes Amendment (Sexual Offences) Act 2003
This amending Act standardised the age of consent for both males and females at 16 years and amended the Crimes Act 1900 by inserting a new range of offences relating to sexual intercourse with a child aged between 10 and 16 years consisting of two offences: sexual intercourse with a child of or above the age of 10 and under 14 years and sexual intercourse with a child who is of or above 14 and under 16 years. Basic and aggravated forms of the offence were created.
This amendment is discussed with more detail in the chapter Sexual offences against children at [17-420].
Crimes (Serious Sex Offenders) Act 2006
This Act created a statutory scheme for applications by the Attorney General (NSW) for the extended supervision and continuing detention of persons convicted of a “serious sexual offence” after their sentence has expired. The fact that an application might be made in the future by the Attorney General is not relevant to the determination of a non-parole period: Ghanem v R (2008) 180 A Crim R 440 at –. The fact that the offender has or may become the subject of an order under the Act is not a matter of mitigation at sentence: s 24A(1) Crimes (Sentencing Procedure) Act 1999.
Crimes Amendment (Consent—Sexual Assault Offences) Act 2007
This amending Act inserted a new definition of consent for the purposes of offences under ss 61I, 61J, and 61JA Crimes Act, effective 1 January 2008. This is discussed in the Criminal Trial Courts Bench Book in Sexual intercourse without consent at [5-1568].
Crimes Amendment Act 2007
This amending Act, which commenced on 15 February 2008, replaced the term “malicious” with the modern fault element of “intention or recklessness” in offences under ss 61J, 61JA, 61K, 66C, 80A and 95.
Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007
This amending Act, which commenced on 18 January 2008, created offences under s 66EB of intentionally procuring a child for unlawful sexual activity. See Sexual offences against children at [17-535].
Crimes Amendment (Sexual Offences) Act 2008
This amending Act, which commenced on 1 January 2009, created several new sexual offences:
s 61O(2A): aggravated act of indecency offence where the act of indecency is filmed for the purposes of producing child pornography — maximum penalty of 10 years imprisonment
s 66A(2): aggravated offence of having sexual intercourse with a child under the age of 10 years — maximum penalty of life imprisonment. The circumstances of aggravation are set out in ss 66A(3)(a)–(h)
ss 66EB(2A) and (2B): grooming offences — maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case
s 80G: inciting a person to commit a sexual offence
ss 91I–91M: offences of voyeurism and related offences.
The amending Act also increased maximum penalties for some offences:
s 61M (aggravated indecent assault against a child aged under 16 years): maximum penalty increased from 7 to 10 years imprisonment
s 91E(1) (benefits derived from child prostitution): maximum penalty increased from 10 to 14 years imprisonment
s 91H(2) (possessing child pornography): maximum penalty increased from 5 to 10 years imprisonment.
Crimes Legislation Amendment (Child Sex Offences) Act 2015
This amending Act, which commenced on 29 June 2015, repealed the existing basic and aggravated offences of sexual intercourse with a child under 10 under ss 66A(1) and 66A(2) respectively (as implemented by the Crimes Amendment (Sexual Offences) Act 2008). The provisions were replaced by one consolidated s 66A offence, carrying a maximum penalty of life imprisonment. The Act also introduced standard non-parole periods for 13 child sex offences, including under ss 66B, 66C(1), 66C(2) and 66C(4).
[20-610] Effect of increase in maximum penalties
This issue is dealt with comprehensively in Objective factors (cf s 21A(1)) at [10-000]ff. It is well settled that the legislature may be taken to indicate that sentences for an offence must increase following an increase in the maximum penalty: Baumer v The Queen (1988) 166 CLR 51 at 56; R v Slattery (1996) 90 A Crim R 519 at 524. In the context of sexual assault, the 1989 amendments substantially increased the maximum penalties for sexual assault offences. The maximum penalty for sexual intercourse without consent was increased from 8 years (under s 61D (rep)) to 14 years (under s 61I). Similarly, the maximum penalty for aggravated sexual assault increased from between 12–14 years (under s 61C (rep)) to 20 years (under s 61J).
In the 1990s, the Court of Criminal Appeal repeatedly declared that the Crimes Amendment Act 1989 was designed to reflect community standards and the seriousness with which the community regards sexual assault offences: R v Hartikainen (unrep, 8/6/93, NSWCCA); R v Gilbert (unrep, 24/2/94, NSWCCA); and R v May  NSWCCA 40 at . The amendments make it incumbent upon the courts to give effect to the concerns of Parliament in almost doubling the penalties, at least for s 61J: R v Truong (unrep, 8/12/97, NSWCCA).
The court in both Upton v R  NSWCCA 256 at  and R v MAK  NSWCCA 369 at  observed that the introduction of a maximum penalty of life imprisonment for offences under s 61JA manifests an intention on the part of Parliament to substantially increase penalties for aggravated sexual assault committed in company.
Importance of maximum penalty
In Markarian v The Queen (2005) 228 CLR 357 at –, Gleeson CJ, Gummow, Hayne and Callinan JJ said:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance …
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
[20-620] Standard non-parole period sexual assault offences
The statutory regime for standard non-parole period offences is dealt with in detail in Standard non-parole period offences at [7-890]ff. Offences committed on or after 1 February 2003 are subject to the standard non-parole period provisions. Standard non-parole periods have been prescribed for the following sexual offences:
sexual assault (s 61I) — 7 years
aggravated sexual assault (s 61J) — 10 years
aggravated sexual assault in company (s 61JA) — 15 years
aggravated indecent assault (s 61M(1)) — 5 years, increased to 7 years for offences committed on or after 1 January 2009.
In the area of child sexual assault standard non-parole periods were introduced for offences under ss 61M(2) (8 years), 66A (15 years), 66B (10 years), 66C(1) (7 years), 66C(2) (9 years) and 66C(4) (5 years) (discussed separately in Sexual offences against children at [17-400]).
It is an error to decline to set a non-parole period for a sexual offence with a standard non-parole period: Leddin v R  NSWCCA 242 at .
The Table of standard non-parole periods does not include attempt offences, except for the various manifestations of the offence of attempt murder: R v DAC  NSWCCA 265 at . In R v DAC, the judge erred in applying the Table to an aggravated attempt to have sexual intercourse without consent under ss 61J and 61P.
It was predicted that the effect of the standard non-parole period would generally be to increase the level of sentencing for offences to which it applies: R v AJP (2004) 150 A Crim R 575. See the statement of the High Court in Muldrock v The Queen (2011) 244 CLR 120 at  and an earlier study by the Judicial Commission of NSW that found the introduction of standard non-parole periods in fact resulted in significant increases in sentences: P Poletti and H Donnelly, The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales, Research Monograph 33, Judicial Commission of NSW, Sydney, 2010. See Move upwards in the length of non-parole periods? at [7-990].
[20-630] Assessing objective gravity of sexual assault
An important step in determining the appropriate sentence is to assess where the particular sexual assault offence lies on the spectrum or scale of seriousness: Ibbs v The Queen (1987) 163 CLR 447. In R v Gebrail (unrep, 18/11/94, NSWCCA), Mahoney JA emphasised the importance of making clear findings about the objective seriousness of the crime in sexual assault cases:
it is important to understand why assessments of the seriousness of the instant offence [s 61J] are made and the significance of such assessments. As I have indicated, every offence of this kind is a serious offence. But those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances, of humiliation and otherwise, are much greater than are involved in this case. It is to be understood that in sentencing it is appropriate — indeed, in most cases it is necessary — that the sentencing judge form and record his assessment of where, on the relevant scale of seriousness, the particular offence lies.
Part of the assessment of the objective seriousness of the sexual assault involves taking into account the nature of the sexual act. In Ibbs v The Queen at 452, Mason CJ and Wilson, Brennan, Toohey and Gaudron JJ stated:
The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum, at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined …
Ibbs v The Queen requires the sentencer to assess and take into account where the sexual act fits in the continuum of seriousness for a given offence. In R v PGM (2008) 187 A Crim R 152 at , Fullerton J summarised the position as follows:
While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v The Queen (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at –.
Forms of sexual intercourse and objective seriousness
Section 61H(1) Crimes Act 1900 provides, inter alia:
“sexual intercourse” means:
sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
any part of the body of another person, or
any object manipulated by another person,
except where the penetration is carried out for proper medical purposes, or
sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
The Court of Criminal Appeal has at various times drawn distinctions between the relative seriousness of the acts referred to in s 61H. The cases are discussed below. The discussion demonstrates that drawing distinctions between specific sexual acts for the purpose of assessing the objective seriousness of an offence cannot be pressed too far. It is only one part of the task. The objective seriousness of an offence depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. While the form of intercourse “is an important factor, it is not to be regarded as the sole consideration”: R v Hibberd (2009) 194 A Crim R 1 at . Other relevant matters in deciding where on the continuum of seriousness an offence lies include: “the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation … the duration of the offence”: R v Hibberd at , cited with approval in R v Daley  NSWCCA 223 at . In R v Daley at , Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd about the duration of an assault:
the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased.
The context in which the offending occurs is an important part of determining the objective seriousness of a particular offence. In R v Hall  NSWCCA 313, two forcible acts of penetration occurred over a period of about 20 to 30 minutes while the victim was threatened with being killed with a knife and dragged around a motel room while blindfolded. In those circumstances, the court described the victim’s ordeal as “utterly terrifying” and concluded the fact the victim did not sustain any significant physical harm did not lessen the objective seriousness of two offences against s 61D(1) (an earlier form of s 61J(1)): R v Hall at . The offences were not of “short duration”: R v Hall at , . Further, the sentencing judge’s description of the violence as “limited” and involving “a degree of rough handling” was a significant understatement: R v Hall at .
Fellatio, cunnilingus and penile-penetration
In R v O’Donnell (unrep, 1/7/94, NSWCCA), Hunt CJ at CL said that “[f]ellatio, in my opinion, is clearly less criminal than, say, anal or vaginal penetration”. Justice Grove said in R v Andrews  NSWCCA 428 at  that Hunt CJ at CL’s statement “clearly did not intend … to reveal some matter of law” and he could only have expressed it as a matter of opinion. Further:
the penetration of a victim by a sexual organ derives its seriousness from a consideration of the particular circumstances of the case rather than from the nature of the sexual act itself.
Although R v Andrews was a two-judge bench decision it was cited with approval and applied in R v Hajeid  NSWCCA 262 at ; R v MS  NSWCCA 322 at ; and R v Sanoussi  NSWCCA 323 at .
In R v AJP (2004) 150 A Crim R 575 at –, Simpson J reviewed the authorities on the question of whether some acts, such as penile-vaginal penetration, are more serious than others, and what factors should be considered in assessing the objective seriousness in the context of the standard non-parole period provisions. Those provisions require the judge to determine whether an offence falls in the middle of the range of objective seriousness. Her Honour said:
In R v Davis  NSWCCA 15 Wood CJ at CL wrote:
“ In Ibbs v The Queen … the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile-vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A [sexual intercourse — child under 10 years] …”
It might be true, as senior counsel suggested, that penile-vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid-range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A (and defined in s 61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile-vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid-point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. Had his Honour considered the nature of the sexual intercourse as relevant, he must, in my view, have come to the view that enforced fellatio falls somewhere in the middle, or towards the upper end, of that scale.
Other appropriate areas of inquiry in the consideration of the objective seriousness of a s 66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim. Although the sentencing judge was fully conversant with the facts of the offences, he has not explicitly considered these matters in the specific context of the evaluation of objective seriousness.
In R v PGM (2008) 187 A Crim R 152, the court held that it was open for the trial judge to find that the acts of cunnilingus were in general terms less serious than the penile penetration: However, at  Fullerton J said:
to reason to the conclusion that the act of penile penetration … was of the same order of seriousness as cunnilingus simply by reason of the fact that the respondent’s penis penetrated the child’s genitalia only to a small extent, is to fail to give account to the fact that penile penetration of a young child involves conduct of a quite different order and criminality of a more serious kind than other forms of sexual intercourse contemplated by the statutory definition in s 61H of the Crimes Act. In that connection I note the observation of the Chief Justice in RJA v R  NSWCCA 137 at  that a limited degree of penetration is not necessarily indicative of a lower level of objective criminality.
The court held in R v MS  NSWCCA 322 at , that in some cases little may differentiate the objective seriousness of an act of fellatio from an act of penile-vaginal intercourse:
The circumstances of an act of fellatio may place it in a position on that spectrum consistent with an act of penile-vaginal intercourse. For example, where the complainant’s head is forced and held onto the offender’s penis to the point of ejaculation into the complainant’s mouth, while threats and insults are uttered, in the company of a number of other offenders who are waiting their turn, little may objectively differentiate such an offence from an act of penile-vaginal intercourse, absent overt threats where the offender wears a condom.
R v Oloitoa  NSWCCA 177 is clearly an example of a very serious assault involving fellatio. The act of enforced fellatio was the basis of an aggravated sexual assault charge under s 61J. It was committed during a home invasion in the early hours of the morning. The respondent was armed and in company with another offender. The act was accompanied by threats of violence and completed by the respondent ejaculating in the victim’s mouth in front of her children. McClellan CJ at CL said at : “the offence was marked by the personal degradation of the victim”, and later at :
these features should have led the sentencing judge to conclude that the crime was above the mid range of objective seriousness. It called for a non-parole period greater than 10 years.
R v Oloitoa was cited in Cole v R  NSWCCA 227 at  to justify a high sentence for an offence involving fellatio.
Any physical injury inflicted by penile penetration is also relevant. In R v Shannon  NSWCCA 39 at , Howie J said:
with young children it seems to me that penile penetration is the most serious form of sexual assault for the obvious reason that it is the most likely to result in physical injury to the child.
Digital and penile penetration
Non-consensual sexual intercourse by digital penetration is generally less serious than an offence of penile penetration, but each case depends on its own facts: R v Hibberd (2009) 194 A Crim R 1 at ; R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at 3. However, there is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse: R v Hibberd at . In R v Hibberd at , Tobias JA said that the law should change:
the time has come for this Court to depart from any prima facie assumption, let alone general proposition, that digital sexual intercourse is to be regarded as generally less serious than penile sexual intercourse …
[T]he objective seriousness of the offence is wholly dependent on the facts and circumstances of the particular case …
Justice James agreed with Price J — who had applied R v Da Silva — and his Honour reserved his position on whether the court should depart from previous statements that digital penetration is generally less serious than penile penetration at . The court held nevertheless that the judge erred by focusing too heavily on the form of the forced intercourse (digital penetration) and had failed to give sufficient weight to the extent of the violence used in the offence: R v Hibberd at .
In R v King  NSWCCA 117 at , the court said in response to a submission that it was open for the trial judge to find that digital penetration was less serious than penile penetration and that this was a very significant fact in the assessment of the degree of criminality:
What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range.
The s 61J offence in R v Russell (unrep, 21/6/96, NSWCCA) involved anal intercourse. Justice Dunford said:
The nature of the offences is further aggravated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstance is of its nature always degrading.
Age gap between offender and victim
In R v Shortland  NSWCCA 34, the court found the lack of a significant age gap between the 25-year-old offender and 31-year-old victim was immaterial when determining the objective seriousness of the offence. In cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant: R v Shortland at , .
[20-640] Sexual intercourse without consent: s 61I
Sexual intercourse without consent carries a maximum sentence of 14 years imprisonment. Where it is committed on or after 1 February 2003 it is also subject to a standard non-parole period of 7 years. The courts have always regarded sexual intercourse without consent as a serious offence: R v Russell (unrep, 21/6/96, NSWCCA). In R v Hartikainen (unrep, 8/6/93, NSWCCA), Gleeson CJ said that non-consensual intercourse is an extreme form of violence and one which the community expects the courts to take very seriously. This remains so even in cases where there is no additional violence perpetrated against the victim: R v May  NSWCCA 40 at . Even before the introduction of the standard non-parole period for the offence of sexual intercourse without consent the Court of Criminal Appeal held that it would be unusual if a conviction under s 61I did not ordinarily result in a sentence of full-time imprisonment: R v Crisologo (1997) 99 A Crim R 178 at 179; R v May at .
Counsel for the appellant in Sabapathy v R  NSWCCA 82 at  submitted that the appellant’s mental state of recklessness and his subjective circumstances warranted a sentence other than full-time custody. The court held:
that [a] conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence. There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in the light of all the facts in the particular case.
In R v Shortland  NSWCCA 34, Basten JA (R A Hulme J agreeing at ) observed that, although it was unhelpful to talk of the principle in Sabapathy v R as a general rule or presumption, it was apparent it had been followed: R v Shortland at . However, his Honour concluded it would be unusual or extraordinary to impose a non-custodial sentence in a case where there was no guilty plea or an accompanying finding that the offender was remorseful: R v Shortland at .
The 7-year standard non-parole period will most likely increase sentences for offences committed under s 61I since that is generally the effect of the standard non-parole period: R v AJP (2004) 150 A Crim R 575. This statement should be read in light of later statements by the High Court in Muldrock v The Queen (2011) 244 CLR 120 at .
Summaries of the Crown and severity appeals for offences committed under s 61I since the introduction of the standard non-parole period can be accessed via the SNPP appeals component of JIRS.
Attempted intercourse: s 61P
A sexual assault offence is not to be regarded as at the lower end of the scale merely because intercourse did not actually occur. An attempted sexual intercourse without consent may be a serious offence, in particular where there are aggravating features: R v Grech  NSWCCA 268. Section 61P provides that an attempt to commit sexual intercourse without consent carries the same penalty as if the completed offence was committed: R v Gulliford (2004) 148 A Crim R 558. It applies to ss 61I–61O inclusive.
The standard non-parole period provisions in Pt 4 Div 1A Crimes (Sentencing Procedure) Act do not apply, except for the various manifestations of the offence of attempt murder, to attempt offences: R v DAC  NSWCCA 265 at . The judge erred in R v DAC by applying the standard non-parole period to the offence of aggravated attempt to have sexual intercourse without consent contrary to ss 61J and 61P.
[20-645] Consent must be addressed when in issue
Where consent is an issue on sentence, it is erroneous not to address the offender’s arguments or explain the basis upon which the issue was resolved: R v Alcazar  NSWCCA 51 at . In R v Alcazar at , the court held that this error contributed to a manifestly inadequate sentence because the seriousness of the offending was not properly identified.
See Suggested direction — sexual intercourse without consent (s 61I) where the offence was allegedly committed on and after 1 January 2008 at [5-1566] and Notes at [5-1568] of the Criminal Trials Bench Book.
[20-650] De Simoni principle and s 61I
The court must disregard a matter of aggravation if to take it into account would be to punish the offender for an offence which was more serious than that for which the offender stands for sentence: The Queen v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when the court has regard to factors which are often found as aggravating features of offences in the Crimes Act, such as: the offence was committed in company; the offender used a weapon; or the offender was in a position of trust: R v Wickham  NSWCCA 193 at . None of the aggravating matters in s 61J (listed below) can be taken into account in aggravation for an offence under s 61I.
The sentencing judge erred in R v Bakewell (unrep, 27/6/96, NSWCCA) by taking into account the psychological impact of the crime on the victim and the applicant’s forcefulness during sexual intercourse. This was held to be impermissible since these matters, described in a victim impact statement, effectively constituted an aggravated form of the offence found under s 61J.
In R v Johnson  NSWCCA 186 at , the sentencing judge erred by taking into account as a matter of aggravation that the offences involved violence of a sexual character. According to Hunt AJA at , violence can be taken into account provided that it does not involve the infliction of actual bodily harm:
When defining the offence of sexual intercourse without consent, s 61I of the Crimes Act 1900 makes no reference to violence, and its title “Sexual Assault” does not go beyond the common assault which is inherent in the “sexual connection” to which the definition of “sexual intercourse” in s 61H refers. It does not include any suggestion of either violence or (as violence is usually defined) the exercise of physical force. Many sexual assaults do involve violence, and that violence is appropriately taken into account by way of aggravation in a sexual assault charge under s 61I — provided that it does not involve the infliction of actual bodily harm, when the offender becomes exposed to a greater maximum sentence, one of imprisonment for 20 years (s 61J “Aggravated Sexual Assault”), in lieu of imprisonment for 14 years (s 61I “Sexual Assault”). The principle laid down in The Queen v De Simoni (at 388–392), that a matter may be taken into account in aggravation of sentence only where it does not render the accused liable to a greater punishment, would otherwise be infringed.
[20-660] Aggravated sexual assault: s 61J
Sexual intercourse without consent committed in circumstances of aggravation carries a maximum sentence of 20 years. Where it is committed on or after 1 February 2003 it is also subject to a standard non-parole period of 10 years. “Circumstances of aggravation” are defined in s 61J(2):
intentional or reckless infliction of actual bodily harm
threat of actual bodily harm by means of an offensive weapon/instrument
victim under the age of 16 years
victim under the authority of the offender
victim has a serious physical disability
victim has a cognitive impairment
break and entry into dwelling-house or other building with the intention of committing the offence or any other serious indictable offence
deprivation of victim’s liberty for a period before or after the commission of the offence.
For offences committed prior to 15 February 2008, the previous form of s 61J(2)(a) applies, that is “malicious” infliction of actual bodily harm.
Section 61J(2)(h) and (i) were inserted by the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009.
The aggravating factors under s 61J(2) are not all of equal seriousness: Thorne v R  NSWCCA 10 at . For example, a threat to inflict actual bodily harm may be less serious than actually inflicting harm. There can also be other aggravating factors applicable to this offence not mentioned in s 61J(2), such as acts degrading the complainant: Thorne v R at .
Range for s 61J
In R v AEM  NSWCCA 58 at –, the court reviewed the pattern of sentencing for offences under s 61J at that time and concluded that the cases cited by counsel did not establish a relevant pattern of sentencing. The court also cautioned against the use of Judicial Commission of NSW statistics for sexual assault offences: at –.
Whatever view may be taken on the question of whether there is an established range, the introduction of a standard non-parole period of 10 years will have the effect of generally increasing sentences for this offence. In R v AD  NSWCCA 208 at , Howie J said in the course of dealing with a severity appeal for a s 61J offence:
the judge in the present matter was obliged to have regard to the standard non-parole period of 10 years even though it was not applicable to the applicant’s case. In [R v AJP (2004) 150 A Crim R 575] it was made clear that the effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies. If the provisions prescribe a standard non-parole period of 10 years, as against a maximum penalty of 20 years, as is the case with an offence under s 61J, it follows that the head sentence must exceed half the maximum penalty for the offence notwithstanding that the offence is one of only mid-range seriousness.
Summaries of the Crown and severity appeals for offences committed under s 61J since the introduction of the standard non-parole period can be accessed via the SNPP appeals component of JIRS.
Section 61J cases that attract the maximum
See generally the discussion with regard to worst cases at [10-005] Cases that attract the maximum; see also The Queen v Kilic (2016) 259 CLR 256.
R v Anderson  NSWCCA 304 is an example of near worst case category of a s 61J offence. Anderson was said to be worse than R v AEM  NSWCCA 58 because it involved infliction of actual bodily harm. The offender had a long history of criminal conduct and committed numerous violent offences after escaping from a prison.
In R v Boatswain (unrep, 15/12/93, NSWCCA) the offender committed seven counts of aggravated sexual intercourse without consent against two different victims on different occasions. The court imposed an effective sentence of 23 years with a non-parole period of 15 years. R v Presta  NSWCCA 40 was also a serious case. The applicant received a minimum term of 14 years and 3 months and additional term of 4 years and 9 months.
[20-670] Aggravated sexual assault in company: s 61JA
Section 61JA(1) provides that:
who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and
who is in the company of another person or persons, and
at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
deprives the alleged victim of his or her liberty for a period before or after the commission of the offence,
is liable to imprisonment for life.
In R v MRK  NSWCCA 271 at , Spigelman CJ stated :
As indicated by the maximum penalty of life imprisonment, the offence under s 61JA is in the highest level of sexual assault offences under the Crimes Act, above the offences for which s 61J provides being sexual assault in circumstances of aggravation. This represents a recognition by the legislature of the particular heinousness which often accompanies gang rapes.
R v Hoang  NSWCCA 380 involved the applicant having sexual intercourse with the victim without her consent, in company, having deprived her of her liberty for a period prior to the commission of the offence. According to Wood CJ at CL at –, the sexual assault offence:
fell within the upper range of seriousness for such an offence, the seriousness of which is, itself, underlined by the fact that the maximum available penalty for it is imprisonment for life … This community will not, and it cannot, tolerate the activities of marauding young gangs of the kind to which this appellant attached himself, and it is time that he and his ilk understood that to be the case, at the penalty otherwise of facing lengthy terms of imprisonment.
In R v Upton  NSWCCA 256 at , the applicant played a lesser role than his co-offender and the Crown relied on the doctrine of extended joint criminal enterprise. The court agreed that the crime was one of the worst of its type and held that a sentence of imprisonment of 7 years with a non-parole period of 4 years “might be considered lenient”: R v Upton at .
In R v MAK  NSWCCA 369, the crime was characterised as falling into the worst category of offence (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256) under s 61JA. MRK’s brothers were sentenced respectively to terms of imprisonment of 16 years, with a non-parole period of 12 years; 22 years, with a non-parole period of 16 years; and 22 years, with a non-parole period of 13 years. Justice Grove said that, having regard to the maximum penalty, the applicants were treated leniently: R v MAK at , .
Summaries of the Crown and severity appeals for offences committed under s 61JA since the introduction of the standard non-parole period legislation can be accessed via the SNPP Appeals component of JIRS.
[20-680] Assault with intent to have sexual intercourse: s 61K
Section 61K provides that any person who “intentionally or recklessly” (prior to 15 February 2008, “maliciously”) inflicts actual bodily harm, or threatens to inflict actual bodily harm by means of an offensive weapon or instrument, with intent to have sexual intercourse with another person, is liable to imprisonment for 20 years. Appeals against sentences for s 61K offences include R v Jones (1993) 70 A Crim R 449; R v Armand-Iskak  NSWCCA 414; R v Smith (1993) 69 A Crim R 47; R v Leys  NSWCCA 358 and R v Sanderson  NSWCCA 512.
[20-690] Indecent assault
Section 61L provides:
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
In R v O’Sullivan (unrep, 20/10/89, NSWCCA), Priestley JA said that the sentencing judge had taken an “over-strict approach” in saying that a custodial sentence had to be imposed in every case of indecent assault, as it was then defined.
Section 61M — “in circumstances of aggravation”
Section 61M is dealt with under Sexual offences against children at [17-510].
Under s 61M(1) any person who assaults another person in circumstances of aggravation is liable to imprisonment for 7 years. “Circumstances of aggravation” are defined in s 61M(3). Under s 61M(2):
any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.
Parliament has set a standard non-parole period of 5 years for an offence under s 61M(1) and 8 years for an offence under s 61M(2): items 9A, 9B, Table of Standard non-parole periods, see [8-000].
[20-700] Sexual assault procured by intimidation, coercion and other non-violent threats
Section 65A was repealed by the Crimes Amendment (Consent—Sexual Assault Offences) Act 2007, which commenced 1 January 2008. It provided:
In this section: “non-violent threat” means intimidatory or coercive conduct, or other threat, which does not involve a threat of physical force.
Any person who has sexual intercourse with another person shall, if the other person submits to the sexual intercourse as a result of a non-violent threat and could not in the circumstances be reasonably expected to resist the threat, be liable to imprisonment for 6 years.
A person does not commit an offence under this section unless the person knows that the person concerned submits to the sexual intercourse as a result of the non-violent threat.
In R v Aiken (2005) 63 NSWLR 719 the court held that s 65A was inserted in 1987 for the purpose of criminalising non-violent threats. The elements of intimidation, coercion and non-violent threats are now incorporated in s 61HA(6)(b) as grounds for establishing that a person does not consent to sexual intercourse.
[20-710] Victim with a cognitive impairment: s 66F
The Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 clarified and extended the nature of sexual offences committed against persons who have a cognitive impairment. The amending Act replaced the term “intellectual disability” with “cognitive impairment”, which includes not only intellectual disability, but extends to developmental or neurological disorders, dementia, severe mental illness or brain injury, which results in the person requiring supervision or social habilitation in connection with daily life activities.
Section 66F(2) provides that a person who has sexual intercourse with a person who has a cognitive impairment, and who is responsible for the care of that person (whether generally or at the time of the sexual intercourse only), is liable to a maximum penalty of 10 years imprisonment. A person is responsible for the care of a person with a cognitive impairment if the person provides care to that person at a facility or at the home of that person in a program under which care is provided to persons with a cognitive impairment.
Section 66F(3) provides that any person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that cognitive impairment, is liable to a maximum penalty of 8 years imprisonment.
In R v Grech  NSWCCA 268 at , Carruthers J said deterrence looms large for offences under s 66F(2). His Honour explained the gravamen of the offence at –:
strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.
Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2) … The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor.
[20-720] Sexual assault by forced self-manipulation: s 80A
Section 80A(2) provides that any person who compels another person to engage in self-manipulation, by means of a threat that the other person could not reasonably be expected to resist, is liable to imprisonment for 14 years. If there are circumstances of aggravation (outlined in s 80A(1)), the person is liable to imprisonment for 20 years under s 80A(2A). Section 80A(3) provides that a person does not commit an offence under this section unless the person knows that the other person engages in the self-manipulation as a result of the threat.
Section 78A(1) states that “any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years”. Under s 78B any person who attempts to commit an offence under s 78A is liable to imprisonment for 2 years. In R v GS  NSWCCA 4, the applicant had engaged in a sexual relationship with his natural daughter over a 14-year period. On the three counts of incest, the court sentenced him to 4 years and 6 months, with a non-parole period of 3 years.
Section 79 provides that “any person who commits an act of bestiality with any animal” shall be liable to imprisonment for 14 years. Any person who attempts to commit an act of bestiality with any animal shall be liable to imprisonment for 5 years: s 80.
Bestiality is not defined in the Crimes Act, but at common law it has been held to consist of any form of sexual intercourse with an animal: R v Brown (1889) 24 QBD 357. Penetration per annum is not essential: R v Bourne (1952) 36 Cr App R 125. A woman may commit bestiality: R v Packer  VLR 225. Notwithstanding the retention of a heavy penalty in s 79, it would appear that custodial sentences are inapplicable except, possibly, when there are unusual aggravating circumstances. As the English Court of Criminal Appeal has said, it is the accused who needs help, not the dog: R v Higson (1984) 6 Cr App R 20.
Between July 2002 and December 2009 there were only two known cases of bestiality dealt with in the District Court. Between January 2006 and December 2009, there was one case of bestiality dealt with in the Children’s Court and one case of attempted bestiality dealt with in the Local Court: ss 79, 80 Sentencing Statistics, Judicial Information Research System (JIRS), Judicial Commission of NSW.
[20-750] Intensive correction order not available for a “prescribed sexual offence”
Section 67(1)(b) Crimes (Sentencing Procedure) Act 1999 states that an intensive correction order (ICO) must not be made in respect of a sentence of imprisonment for a “prescribed sexual offence”. A “prescribed sexual offence” is defined in s 67(2) as:
an offence under Pt 3, Divs 10 or 10A Crimes Act 1900, being:
an offence where the victim is under 16 years of age, or
an offence where the victim is any age and the elements of which includes sexual intercourse (as defined by s 61H)
an offence against ss 91D, 91E, 91F, 91G or 91H Crimes Act
an offence against ss 91J, 91K or 91L Crimes Act, where the victim is under 16 years, or
an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.
Subsections 67(2)(d)–(f) also list a number of Commonwealth offences which are purported to fall within the definition of a “prescribed sexual offence” in respect of which an ICO must not be made.
[20-760] Other aggravating circumstances
Breach of trust
In R v Qin  NSWCCA 189, offences under ss 61I and 61L that were committed in the context of a relationship between a masseuse and his customer were aggravated by a breach of the trust inherent in that relationship: at , .
See “Breach of trust” in Sexual offences against children at [17-560].
Risk of pregnancy
The risk of pregnancy is an aggravating factor that can be taken into account in sentence: KAB v R  NSWCCA 55. The court (Wilson J and Ward JA agreeing, Simpson J in dissent) in KAB v R held that there was no denial of procedural fairness for the judge to take into account that there was a “high risk of pregnancy” when the agreed facts included that the offender had penile/vaginal intercourse with his step-daughter and ejaculated into her vagina where neither party had raised the issue at the sentencing hearing. On appeal, the offender argued that had he known the judge was going to take this factor into account he would have submitted evidence that he had undergone a vasectomy.
Use of weapon
The use of a knife in sexual offences, where it can be taken into account as a matter of aggravation, is regarded by the court as abhorrent to the community, and will lead to a significant increase in the sentence: R v Rothapfel (unrep, 4/8/92, NSWCCA) per Studdert J at . Offenders who use knives in sexual attacks must expect stern punishment: R v H (unrep, 23/8/96, NSWCCA) per Studdert J.
It is an aggravating circumstance where a victim is assaulted in his or her own home both at common law and under s 21A(2)(eb) Crimes (Sentencing Procedure) Act. Break and entry into a dwelling-house is also a specified circumstance of aggravation under ss 61J(2)(h) and 66C. In R v Preston (unrep, 9/4/97, NSWCCA) at 25, Dunford J said:
sexual assault is a serious offence at any time, but its criminality is aggravated when it is committed against a defenceless woman in the sanctity of her own home.
Examples where sexual assault offences were committed in the context of break and enter offences include: R v Johnston  NSWCCA 201; R v Anderson  NSWCCA 304; R v Hoang  NSWCCA 380; R v Allan  NSWCCA 107; R v DAC  NSWCCA 265 and R v Oloitoa  NSWCCA 177.
Offences committed by medical practitioner
The gravity of sexual offences is magnified by the circumstance that it involved a breach of trust which the patient reposed in a medical practitioner: R v Arvind (unrep, 8/3/96, NSWCCA) per Grove J at . Criminal interference with the bodies of persons seeking health care by medical practitioners will be met with stern retribution. Patients are extremely vulnerable and taking advantage of that situation for self-gratification means that general and personal deterrence will be part of an appropriate sentence: R v Arvind.
Sexual offences which are preceded by spiking the victim’s drink are ordinarily dealt with under ss 38 and 38A. See discussion in Assault, wounding and related offences at [50-110].
Intoxication as a factor in sentencing is discussed in Subjective matters taken into account (cf s 21A(1)) at [10-480].
[20-770] Mitigating circumstances
Youth of offender
The general principle is that in cases involving young offenders, general deterrence is given less weight and more emphasis is placed on rehabilitation. However, where a youth behaves like an adult and commits a sexual assault of considerable gravity, the function of the courts and the primary objective of sentencing is the protection of the community: R v Nichols (1991) 57 A Crim R 391; R v Gordon (1994) 71 A Crim R 459 at 469; R v BUS (unrep, 3/11/95, NSWCCA); R v DAR (unrep, 2/10/97, NSWCCA); R v AEM  NSWCCA 58; R v Alcazar  NSWCCA 51 at –. It is not the youth of an offender per se that justifies the amelioration of a sentence, but the circumstances of a particular juvenile offender and a particular offence that may indicate that general deterrence and retribution should play a lesser role: IE v R (2008) 183 A Crim R 150 at . Special considerations must be applied under Pt 2 Div 4 Children (Criminal Proceedings) Act 1987 where the offender is under 18 years of age at the time of the offence and under 21 years when charged.
See the further discussion of this factor in Subjective matters taken into account (cf s 21A(1)) at [10-440].
See discussion of this factor in Subjective matters taken into account (cf s 21A(1)) at [10-460].
The suspense or uncertainty suffered by an offender who remains silent in the hope that his or her offences will not be discovered must not be taken into account on sentence: R v Spiers  NSWCCA 107 at – and cases cited therein. The delay enabled the sentencing judge to conclude that this offender was unlikely to re-offend, but the court noted at  that this was “perhaps not properly regarded as rehabilitation”.
In R v Hall  NSWCCA 313, the court observed that there are cases where the descriptor “delay” is inapt and suggests “something that might have occurred earlier was deferred, postponed or put off until later”: R v Hall at . In that case, the 23-year delay between the offences (in respect of which the victim had immediately complained) and his arrest was solely attributable to the respondent evading detection. The court found that the concepts of delay and “stale crime” do not automatically lead to certain consequences in sentencing, such as leniency. The underlying circumstances and their impact on the assessment of sentence must be considered: R v Hall at –.
Rehabilitation and established good character in the time since offending is a relevant consideration: R v Hall at . However, general deterrence still has a role to play. It is important it is known that the criminal justice system will punish, denounce and make an offender accountable for serious criminal offending, no matter how long it takes for them to be brought to account (where the time required to do so is not the fault of anyone else): R v Hall at .
See also discussion of delay in Sexual offences against children at [17-570] and Subjective matters taken into account (cf s 21A(1)) at [10-530].
The court is entitled to take into account punishment meted out by others, such as abuse and harassment and threats of injury to person and property: R v Allpass (1993) 72 A Crim R 561 at 566. In R v Holyoak (1995) 82 A Crim R 502 at 506, the court took account of the fact that the applicant had suffered substantially from personal harassment by media representatives and received a large volume of “hate” communications from members of the public. The punishment commenced, in a real sense, before his sentence.
In Sharwood v R  NSWCCA 157, the judge erred by excluding evidence that the applicant was beaten in his home in the presence of his wife and daughter by two men in relation to his offences under s 61M(1). The attack resulted in physical injury and damage to the applicant’s house. The court held at  that the incident was a matter which should have been taken into account as a subjective circumstance justifying some degree of leniency.
See further discussion of this factor in Subjective matters taken into account (cf s 21A(1)) at [10-520].
Possibility of summary disposal
The Criminal Procedure Act 1986 makes provisions in Ch 5 of the Act for some indictable offences to be dealt with summarily in certain circumstances. Section 260 provides:
An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment.
An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment.
Section 260 applies to the following sexual assault offences:
indecent assault — s 61L [Table 2 offence]
aggravated indecent assault — s 61M [Table 1 offence]
act of indecency — s 61N [Table 2 offence]
aggravated act of indecency — s 61O(1), (1A) [Table 2 offence] and s 61O(2), (2A) [Table 1 offence]
sexual intercourse — child between 14 and 16 — s 66C(3) [Table 1 offence]
attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 — s 66D [Table 1 offence, where victim 14 years of age or over]
procuring or grooming child under 16 for unlawful sexual activity — s 66EB [Table 1 offence]
attempt to commit bestiality — s 80 [Table 1 offence]
procuring person for prostitution — s 91A [Table 1 offence]
procuring person for prostitution by drugs, etc — s 91B [Table 1 offence]
production, dissemination or possession of child abuse (previously child pornography) material — s 91H [Table 1 offence]
aggravated voyeurism — s 91J(3) [Table 1 offence]
aggravated offence of filming a person engaged in private act — s 91K(3) [Table 1 offence]
aggravated offence of filming a person’s private parts — s 91L(3) [Table 1 offence].
Where an offence that could have been dealt with summarily is prosecuted on indictment, the court may have regard to that fact but only in the exceptional circumstances outlined in Zreika v R (2012) 223 A Crim R 460 at –.
See further discussion of this factor in Objective factors (cf s 21A(1)) at [10-080].
Hardship of custody
Sentencers should no longer assume that persons convicted of sexual assault, who serve their sentences in protection, will spend their time in more onerous custodial conditions than the general prison population: R v Mostyn (2004) 145 A Crim R 304 at ; R v Way (2004) 60 NSWLR 168 at  and R v Gu  NSWCCA 104 at . The court must base such a conclusion on evidence: R v Durocher-Yvon (2003) 58 NSWLR 581 at .
This factor is discussed further in Subjective matters taken into account (cf s 21A(1)) at [10-500].
[20-775] Factors which are not mitigating at sentence
The relevance of a prior relationship
The mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality of the sexual assault: R v Cortese  NSWCCA 148 at  and cases discussed therein. The fact that an offence occurred in a domestic context does not lessen its gravity: R v Hamid (2006) 164 A Crim R 179; Heine v R  NSWCCA 61 at ; R v Harvey (unrep, 23/8/96, NSWCCA); R v Grech  NSWCCA 268 at –. The assessment of the seriousness of the crime will ultimately depend on the facts of the case. One common circumstance in which a pre-existing relationship has been found to diminish the seriousness of a sexual offence is where it suggests some prevarication or at least initial consent on the part of the victim: Bellchambers v R  NSWCCA 131 at ; NM v R  NSWCCA 215 at ; R v Cortese at .
This circumstance has been contrasted to an assault committed by a stranger where there is no such potential prevarication: R v Cortese at . See also Boney v R (2008) 187 A Crim R 167 at  and NM v R at . Where the offender is a stranger, a further element of fear and terror would be expected: ZZ v R  NSWCCA 83 at . The fact that victim knew the offender and trusted him or her will “provide little comfort”: ZZ v R at . An offence which is committed where two people are engaged in intimate contact by consent and one of them fleetingly goes too far, is to be distinguished from one where the victim made her lack of consent clear and struggled: Stewart v R  NSWCCA 183 at . Offences committed in a domestic context as distinct from an attack from a stranger does not lessen their seriousness: ZZ v R at . Sully J said in R v O’Grady (unrep, 13/5/97, NSWCCA) that where a relationship breaks down:
the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal.
Grove J said, in Raczkowski v R  NSWCCA 152 at :
a violent and pre planned attack … in … a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov  125 A Crim R 551; R v Dunn  144 A Crim R 180; R v Burton  NSWCCA 128.
Manner of dress and sexual history of victim
It is entirely inappropriate to focus on the prior sexual conduct of the victim or to characterise the victim’s manner of dress or behaviour as provocative and as somehow contributing to the commission of the offence: R v Radenkovic (unrep, 6/3/90, NSWCCA); R v King (unrep, 18/7/91, NSWCCA). The mere fact that the victim permitted the offender to sleep in her bed with her is not a mitigating factor: R v O’Grady (unrep, 13/5/97, NSWCCA).
Sex workers are as entitled to the protection of the law against sexual assault as other citizens. In such cases it is wrong to sentence on the basis that the psychological effect on the victim or the gravity of the offence will be less than that experienced by others: R v Leary (unrep, 8/10/93, NSWCCA) per Kirby ACJ at 6, disapproving R v Hakopian (unrep, 11/12/91, VicCCA).
In R v MAK  NSWCCA 369 counsel for MSK submitted that the court should favourably consider his appeal because, having come from Pakistan, he was culturally conditioned by its “very traditional views about women”. This submission was emphatically rejected by McClellan CJ at CL at :
Whatever be its intended meaning the submission must be rejected. It is a fundamental right of every person in a civilised society to live without fear of being assaulted, whether it be physical assault or assaults of a sexual nature. For this reason the legislature has made all forms of assault upon the person a crime imposing heavy penalties on those who do not respect that right. When, as happened in the matters under appeal, the conduct of an offender demonstrates a complete disregard for that right our community expects the courts to impose penalties which punish the offender and mark out the seriousness of the offence so that others will be deterred from acting in a similar manner.
Counsel for MSK raised the issue of the relevance of cultural conditioning again at first instance in R v MSK  NSWSC 237. Justice Hidden at  rejected the submission because it had no factual basis:
he must have had sufficient exposure to the Australian way of life to be aware that the place occupied by women in the traditional culture of his area of origin is far removed from our social norms. He can have been in no doubt that to treat those two young women in the manner he did was utterly unacceptable.
[20-780] Sentencing for offences committed many years earlier
The court in R v Hall  NSWCCA 313, confirmed that, in sentencing for sexual assault offences committed many years prior, judges should adopt the approach outlined by Howie J in R v Moon (2000) 117 A Crim R 497 at –. That is, where there is an absence of reliable statistical data for sentencing patterns at the time of the offence, the nature of the criminal conduct involved and the maximum penalty will be important factors in determining the appropriate sentence: R v Hall at –.
This topic is further dealt with in Sexual offences against children at [17-410].
[20-790] Utility of sentencing statistics
In R v Shannon  NSWCCA 39 the applicant was charged with three counts of sexual intercourse with a 12-year-old victim under s 66C Crimes Act 1900. His counsel relied on available statistics and an examination of comparable cases dealt by the Court of Criminal Appeal to argue that the sentences imposed were at the “upper higher level” of punishment imposed for offences against this section. Justice Howie stated at :
The decisions referred to, the schedule relied upon by the applicant and the statistics maintained by the Judicial Commission indicate that there is a wide variation in the sentences that are imposed for offences of this type. That no doubt reflects the range of activity included within the concept of sexual intercourse and in the varying circumstances surrounding the offending. They are of little assistance in my view except as indicating the sentence imposed by the judge is at the upper end of the range.
In R v Shortland  NSWCCA 34, the respondent to the Crown appeal was sentenced, after a trial, to a suspended sentence of 2 years imprisonment on each of three counts of sexual intercourse without consent contrary to s 61I. The sentencing judge was provided with Judicial Commission statistics which showed that 237 cases, where a s 61I offence was the principal offence, were dealt with between 2010 and 2016. In 47 of those cases, there was a conviction after trial and a custodial sentence was imposed in all but one. In 26 cases, offenders received suspended sentences but pleas of not guilty were entered in only three of those cases. Basten JA (RA Hulme J agreeing at ) concluded that the judge erroneously used sentencing precedent partly by focusing on the 26 cases where suspended sentences were imposed, observing that three out of 237 cases did not constitute a relevant sentencing pattern: R v Shortland at .
[20-800] Victim impact statements
See Victims and victim impact statements at [12-820].
[20-810] Section 21A Crimes (Sentencing Procedure) Act 1999
The application of s 21A generally is discussed in detail at [11-000].
Substantial injury, emotional harm, loss or damage: ss 21A(2)(g), (3)(a)
There must be evidence before the court to warrant a finding that the injury and emotional harm caused by the offence was substantial within the terms of s 21A(2)(g). Additional evidence of harm ordinarily found in a victim impact statement is required. In R v Cunningham  NSWCCA 176, a child sexual assault case, the judge erred by taking into account as an aggravating factor that the impact of the offence on the victims was substantial. No evidence was led regarding the emotional or psychological harm suffered by any of the complainants.
R v Cunningham should be read with DBW v R  NSWCCA 236, where the court held that it was not necessary for expert evidence to be led on matters that have become common knowledge and which could be inferred by common sense. In this case, it was open for the judge to infer, from reports tendered at sentence, a link between the applicant’s sexual abuse of his son and his son’s inappropriate sexual conduct at school: at . The judge “would have been entitled to act on the basis that there was a substantial harm”: at . It was said in R v King  NSWCCA 117 at  that it should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child: see extract from the judgment at [20-604].
Victim was vulnerable: s 21A(2)(l)
The age of the victim is relevant to determining the objective seriousness of an offence. The younger the victim the more serious the crime: RJA v R (2008) 185 A Crim R 178 at . Offences arising out of the home invasion of a 78-year-old woman were aggravated by her age: R v DAC  NSWCCA 265 at . On the other hand, an 18-year-old victim was not vulnerable for the purposes of s 21A(2)(l) on account of her age since 18 is the age of adulthood and cannot be regarded as “very young” under s 21A(2)(l): Perrin v R  NSWCCA 64 at . However, the victim was vulnerable on the basis that she was affected by alcohol which markedly lowered what she could appreciate and do at the time.
[20-820] Totality and sexual assault offences
Given that it is common for offenders to commit multiple offences, the totality principle has a central role in the sentencing exercise for sexual assault.
The totality principle is a well-established principle of sentencing to be applied by the court when sentencing an offender for more than one offence. It requires a judge or magistrate to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and then, when reviewing the aggregate sentence consider whether it is “just and appropriate”: Pearce v The Queen (1998) 194 CLR 610.
The principle of totality requires that the effective sentence imposed on an offender represent a proper period of incarceration for the total criminality involved: R v AEM  NSWCCA 58 at  per Beazley JA, Wood CJ at CL and Sully J.
The issue is discussed in detail with particular reference to sexual assault offences at Concurrent and consecutive sentences at [8-230].
[20-830] Circumstances of certain sexual offences to be considered in passing sentence: s 61U
Section 61U states that where a person is convicted of:
both an offence under s 61I and an offence under s 61K, or
both an offence under s 61J and an offence under s 61K, or
both an offence under s 61JA and an offence under s 61K,
whether at the same time or at different times, the judge passing sentence on the person in respect of the two convictions or the later of the two convictions is required, if it appears that the two offences arose substantially out of the one set of circumstances, to take that fact into account in passing sentence. R v Ridgeway (unrep, 16/7/98, NSWCCA) contains a short discussion of s 61U.
[20-840] Use of evidence of uncharged criminal acts at sentence
The court may take into account uncharged acts of a similar nature for the limited purpose of placing the offences charged into context and to rebut an assertion that the offence is an isolated act or was out of character. The offender is denied leniency to which he or she might have been entitled if the offence(s) was an isolated incident: R v H (1980) 3 A Crim R 53; R v Burchell (1987) 34 A Crim R 148; R v Kozakiewicz (unrep, 11/6/91, NSWCCA); R v Hartikainen (unrep, 8/6/93, NSWCCA); R v JCW (2000) 112 A Crim R 466, MJL v R  NSWCCA 261 at .
While uncharged acts may be taken into account to rebut a suggestion that the charged misconduct was an isolated incident, the evidence of uncharged acts should not be used to aggravate the sentence for charged offences: R v Mailes (2003) 142 A Crim R 353 at ; Fisher v R  NSWCCA 129 at .
In R v EMC (unrep, 21/11/96, NSWCCA), the applicant was sentenced on the basis that several of the charges were representative of a wider series of offences. Chief Justice Gleeson said:
This did not, of course, mean that his Honour was punishing the applicant for those other offences or treating them as part of the criminality in respect of which he was imposing the sentence … it meant that the applicant was not being dealt with on the basis that these were isolated instances.
This use of uncharged acts for this limited purpose does not infringe the principle that a person should not be punished for crimes for which he or she has not been convicted. There is a distinction between not increasing a penalty based on the presence of an aggravating fact and refusing to extend leniency on account of the fact that the events as charged were not isolated incidents: R v JCW (2000) 112 A Crim R 466 per Spigelman CJ at ; MJL v R  NSWCCA 261 at .
For a detailed discussion see Objective factors (cf s 21A(1)) at [10-030].