R v Tatola (No. 4) [2023] NSWDC 518

R v Tatola (No. 4) [2023] NSWDC 518

The jury verdict necessarily established that the offender intentionally committed the offence in the legal sense, but it did not necessarily establish deliberate intention rather than recklessness. On the facts proved beyond reasonable doubt, the offender realised the possibility of penetration when the tip of his penis was hitting near CX's vagina, knew CX did not consent to penile/vaginal penetration, went ahead, and took a few seconds to move away after CX protested. The offence was in the low range of objective seriousness, but no penalty other than imprisonment was appropriate. Because of youth, first incarceration, acceptance of the verdict, rehabilitative prospects, family and...

Jurisdiction
Australia
Judgment Date
23 November 2023
Procedural Posture
Criminal Sentence for Sexual Intercourse Without Consent Under S 61 I Crimes Act 1900 (nsw) / Sentence After Unanimous Jury Verdict of Guilty
Outcome
The offender was convicted and sentenced to imprisonment for 1 year and 3 months with a non-parole period of 8 months.
Legal Topics
['sexual Intercourse Without Consent' 'intention' 'recklessness' 'disputed Facts on Sentence' 'fact Finding Consistent With Jury Verdict' 'objective Seriousness' 'youth' 'special Circumstances' 'facilitation of the Administration of Justice']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'intention' 'recklessness' 'disputed Facts on Sentence' 'fact Finding Consistent With Jury Verdict' 'objective Seriousness' 'youth' 'special Circumstances' 'facilitation of the Administration of Justice']

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Procedural Posture

Criminal Sentence for Sexual Intercourse Without Consent Under S 61 I Crimes Act 1900 (nsw) / Sentence After Unanimous Jury Verdict of Guilty

Legal Issues

  1. 1 ['Whether, for sentence, the offender should be sentenced on the basis that he deliberately intended penile/vaginal intercourse or on the less grave basis that he was reckless as to penetration.' 'What facts material to sentence were proved beyond reasonable doubt and consistent with the jury verdict.' 'Where the offence fell in the range of objective seriousness for offences under s 61I Crimes Act 1900 (NSW).' 'Whether imprisonment was the only appropriate penalty and whether special circumstances justified an adjusted non-parole period.']

Ratio Decidendi

The jury verdict necessarily established that the offender intentionally committed the offence in the legal sense, but it did not necessarily establish deliberate intention rather than recklessness. On the facts proved beyond reasonable doubt, the offender realised the possibility of penetration when the tip of his penis was hitting near CX's vagina, knew CX did not consent to penile/vaginal penetration, went ahead, and took a few seconds to move away after CX protested. The offence was in the low range of objective seriousness, but no penalty other than imprisonment was appropriate. Because of youth, first incarceration, acceptance of the verdict, rehabilitative prospects, family and...

Court Disposition

The offender was convicted and sentenced to imprisonment for 1 year and 3 months with a non-parole period of 8 months.

Orders

  • ['You are convicted.' 'You are sentenced to a term of imprisonment of 1 year and 3 months, commencing 20 September 2023 and expiring on 19 December 2024.' 'You are sentenced to a non-parole period of 8 months, commencing 20 September 2023, and expiring on 19 May 2024.' 'You will be eligible for consideration for a...