R v Birger [2023] NSWDC 300

R v Birger [2023] NSWDC 300

Given the objective seriousness of the conduct, but balanced by the offender's youth, immediate remorse, lack of prior criminal history, contrition, and good prospects of rehabilitation, the s 5 threshold for full-time imprisonment was not met and the offender was sentenced to a Community Corrections Order with stringent conditions and a fine.

Jurisdiction
Australia
Judgment Date
11 August 2023
Procedural Posture
Criminal / Sentence
Outcome
Community Corrections Order and Fine imposed in lieu of full-time imprisonment.
Legal Topics
['sexual Offences' 'sentencing' 'sexual Touching Without Consent' 'sexual Intercourse Without Consent' 'intoxication' 'remorse' 'community Corrections Order' 'fines']
['criminal Law'] ['sexual Offences' 'sentencing' 'sexual Touching Without Consent' 'sexual Intercourse Without Consent' 'intoxication' 'remorse' 'community Corrections Order' 'fines']

Case Brief

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Procedural Posture

Criminal / Sentence

Legal Issues

  1. 1 ['What is the appropriate sentence for sexual touching and intercourse without consent committed by a young offender who was significantly intoxicated at the time and immediately expressed remorse?' 'Whether the s 5 threshold of the Crimes (Sentencing Procedure) Act 1999 requiring full-time imprisonment is crossed in light of subjective factors.']

Ratio Decidendi

Given the objective seriousness of the conduct, but balanced by the offender's youth, immediate remorse, lack of prior criminal history, contrition, and good prospects of rehabilitation, the s 5 threshold for full-time imprisonment was not met and the offender was sentenced to a Community Corrections Order with stringent conditions and a fine.

Court Disposition

Community Corrections Order and Fine imposed in lieu of full-time imprisonment.

Orders

  • ['For Counts 1 & 7 and Counts 2 – 6 on the Form 1, a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act is imposed for a period of 3 years with conditions set out at [57].' 'Pursuant to s 15 of the Crimes (Sentencing Procedure) Act a fine of $5,000 is imposed.']