R v Barton (a pseudonym) [2020] NSWDC 389

R v Barton (a pseudonym) [2020] NSWDC 389

The offending required full-time imprisonment because it involved two sexual assaults on a very vulnerable, initially unconscious and intoxicated victim, with the penile penetration assessed at the lower end of the mid range of objective seriousness and the digital penetration at a lower level of seriousness. The victim's vulnerability and the home setting were relevant, but vulnerability was not double counted after being considered in objective seriousness. The offender's intoxication was not mitigating because the court was not satisfied that PTSD deprived him of free choice as to intoxication. Good character, low risk of reoffending, good prospects, PTSD making custody more onerous,...

Jurisdiction
Australia
Judgment Date
22 July 2020
Procedural Posture
Criminal Sentencing for Two Counts of Sexual Assault Under Section 61 I of the Crimes Act / Sentence After Judge Alone Trial and Findings of Guilt
Outcome
The offender was sentenced to an aggregate full-time custodial sentence of 3 years, with a non-parole period of 1 year and 8 months and a balance of term of 16 months.
Legal Topics
['sexual Assault' 'standard Non Parole Period' 'objective Seriousness' 'aggravating and Mitigating Factors' 'victim Vulnerability' 'self Induced Intoxication' 'post Traumatic Stress Disorder' 'special Circumstances' 'aggregate Sentence']
['criminal Law' 'sentencing' 'sexual Offences'] ['sexual Assault' 'standard Non Parole Period' 'objective Seriousness' 'aggravating and Mitigating Factors' 'victim Vulnerability' 'self Induced Intoxication' 'post Traumatic Stress Disorder' 'special Circumstances' 'aggregate Sentence']

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Procedural Posture

Criminal Sentencing for Two Counts of Sexual Assault Under Section 61 I of the Crimes Act / Sentence After Judge Alone Trial and Findings of Guilt

Legal Issues

  1. 1 ['What sentence should be imposed for two counts of sexual assault committed against an intoxicated and defenceless victim.' 'How the standard non-parole period of 7 years should be applied as a guidepost in the instinctive synthesis.' "Whether the victim's heavy intoxication made her vulnerable for the purposes of s21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW)." "Whether the offender's intoxication, said to be connected with PTSD, could mitigate sentence despite s21A(5AA)." "Whether the offender's PTSD, first time in custody, COVID-19 prison conditions and prospects of rehabilitation amounted to special circumstances." 'The extent to which the sentences for the two offences should be accumulated or made concurrent.']

Ratio Decidendi

The offending required full-time imprisonment because it involved two sexual assaults on a very vulnerable, initially unconscious and intoxicated victim, with the penile penetration assessed at the lower end of the mid range of objective seriousness and the digital penetration at a lower level of seriousness. The victim's vulnerability and the home setting were relevant, but vulnerability was not double counted after being considered in objective seriousness. The offender's intoxication was not mitigating because the court was not satisfied that PTSD deprived him of free choice as to intoxication. Good character, low risk of reoffending, good prospects, PTSD making custody more onerous,...

Court Disposition

The offender was sentenced to an aggregate full-time custodial sentence of 3 years, with a non-parole period of 1 year and 8 months and a balance of term of 16 months.

Orders

  • ['The offender, for the two offences charged under section 61I of the Crimes Act you have been convicted.' 'I sentence you to a non-parole period of 1 year and 8 months to commence from 22 July 2020 and expiring on 21 March 2022, with a balance of term of 16 months expiring on 21 July 2023.' 'The first date upon...