The Queen v Hewitt [2020] NSWDC 566

The Queen v Hewitt [2020] NSWDC 566

The offence was serious but fell at the low end of objective seriousness: it was digital penetration, opportunistic, not predatory, unplanned, involved no violence or threats, and caused no physical injury. The offender had no prior convictions, was of very good prior character, was unlikely to reoffend, had excellent rehabilitation prospects and suffered serious psychiatric conditions that made him an inappropriate vehicle for general deterrence, denunciation and retribution and would make custody more onerous. Although no statutory remorse was found and no nexus was found between the psychiatric conditions and the offending, the combined objective and subjective circumstances were...

Jurisdiction
Australia
Judgment Date
06 August 2020
Procedural Posture
Criminal Sentencing for Sexual Intercourse Without Consent / Sentence After Jury Verdict of Guilty and Conviction
Outcome
Conviction confirmed; offender sentenced to a 3 year Community Corrections Order; s 5 threshold not crossed.
Legal Topics
['sexual Intercourse Without Consent' 'community Corrections Order' 'section 5 Imprisonment Threshold' 'standard Non Parole Period' 'mental Illness in Sentencing' 'objective Seriousness' 'aggravating and Mitigating Factors' 'rehabilitation' 'general Deterrence' 'special Circumstances']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'community Corrections Order' 'section 5 Imprisonment Threshold' 'standard Non Parole Period' 'mental Illness in Sentencing' 'objective Seriousness' 'aggravating and Mitigating Factors' 'rehabilitation' 'general Deterrence' 'special Circumstances']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentencing for Sexual Intercourse Without Consent / Sentence After Jury Verdict of Guilty and Conviction

Legal Issues

  1. 1 ['Whether the offending crossed the s 5 threshold so that no penalty other than imprisonment was appropriate.' "Whether the offender's psychiatric conditions affected the weight to be given to general deterrence, denunciation, retribution and specific deterrence." 'Whether unusual or exceptional circumstances justified a non-custodial sentence for sexual intercourse without consent.' 'What objective seriousness should be attributed to the offence.' 'What statutory aggravating and mitigating factors applied.']

Ratio Decidendi

The offence was serious but fell at the low end of objective seriousness: it was digital penetration, opportunistic, not predatory, unplanned, involved no violence or threats, and caused no physical injury. The offender had no prior convictions, was of very good prior character, was unlikely to reoffend, had excellent rehabilitation prospects and suffered serious psychiatric conditions that made him an inappropriate vehicle for general deterrence, denunciation and retribution and would make custody more onerous. Although no statutory remorse was found and no nexus was found between the psychiatric conditions and the offending, the combined objective and subjective circumstances were...

Court Disposition

Conviction confirmed; offender sentenced to a 3 year Community Corrections Order; s 5 threshold not crossed.

Orders

  • ['The conviction recorded on 16 June 2020 for one count of sexual intercourse without consent in breach of s 61I of the Crimes Act 1900 was confirmed.' 'The offender was sentenced to a 3 year Community Corrections Order commencing Thursday 8 August 2020.' 'Standard condition imposed that the offender must not commit...