R v SIM [2020] NSWDC 743

R v SIM [2020] NSWDC 743

The offence was objectively low in seriousness, involving one finger, no force, violence, threats or physical injury, and short duration, but it was a serious violation because the offender sought out a sleeping victim in her own home knowing she was not consenting. The offender had strong subjective features and a low risk of reoffending, but his total lack of remorse, absence of a guilty plea, the manner of offending, the need for denunciation, general deterrence and recognition of harm meant that no penalty other than full-time imprisonment was appropriate. Prior custody and bail restrictions justified backdating the sentence so that the non-parole period expired on the date of sentence.

Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Criminal Sentence for Sexual Intercourse Without Consent in Contravention of Section 61 I of the Crimes Act / Sentence After Jury Verdict of Guilty
Outcome
Conviction confirmed; offender sentenced to imprisonment with the non-parole period expiring on the date of sentence.
Legal Topics
['sexual Intercourse Without Consent' 'objective Seriousness' 'custodial Sentence Threshold' 'absence of Remorse' 'quasi Custody' 'standard Non Parole Period']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'objective Seriousness' 'custodial Sentence Threshold' 'absence of Remorse' 'quasi Custody' 'standard Non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentence for Sexual Intercourse Without Consent in Contravention of Section 61 I of the Crimes Act / Sentence After Jury Verdict of Guilty

Legal Issues

  1. 1 ["Whether no penalty other than imprisonment was appropriate for the offender's section 61I offence." 'How to assess the objective seriousness of digital penetration constituting sexual intercourse without consent.' "What weight should be given to the offender's subjective circumstances, lack of remorse, prior custody and bail restrictions." 'Whether the non-parole period should differ from the standard non-parole period.']

Ratio Decidendi

The offence was objectively low in seriousness, involving one finger, no force, violence, threats or physical injury, and short duration, but it was a serious violation because the offender sought out a sleeping victim in her own home knowing she was not consenting. The offender had strong subjective features and a low risk of reoffending, but his total lack of remorse, absence of a guilty plea, the manner of offending, the need for denunciation, general deterrence and recognition of harm meant that no penalty other than full-time imprisonment was appropriate. Prior custody and bail restrictions justified backdating the sentence so that the non-parole period expired on the date of sentence.

Court Disposition

Conviction confirmed; offender sentenced to imprisonment with the non-parole period expiring on the date of sentence.

Orders

  • ['I confirm the conviction.' 'The offender is sentenced to a term of imprisonment with a non parole period of 4 months to date from 11 August 2020 and expiring today, 10 December 2020, and with a balance of term of 8 months expiring on 10 August 2021.']