R v Palmer [2018] NSWDC 50

R v Palmer [2018] NSWDC 50

The offence fell within the lower range of objective seriousness, but not at the lowest end. It involved actual knowledge of non-consent, short-duration digital intercourse, some force and restraint, and surrounding circumstances including GL retreating from physical contact and the offender persisting. Although the offender had no prior convictions, prior good character, good prospects of rehabilitation, low likelihood of reoffending and relevant health issues, the purposes of sentencing required a custodial penalty and suspension did not arise. Special circumstances were established because it was the offender's first time in custody, his health, low likelihood of reoffending and good...

Jurisdiction
Australia
Judgment Date
13 February 2018
Procedural Posture
Criminal Sentence for Sexual Intercourse Without Consent / Sentence Hearing After Jury Verdict of Guilty on Count 2 and Not Guilty on Counts 1 and 3
Outcome
The offender was convicted on Count 2 and sentenced to 3 years imprisonment with a non-parole period of 18 months and release on parole at the expiration of the non-parole period.
Legal Topics
['sexual Intercourse Without Consent' 'objective Seriousness' 'victim Impact Statement' 'de Simoni Principle' 'mitigating Factors' 'good Character' 'prospects of Rehabilitation' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'objective Seriousness' 'victim Impact Statement' 'de Simoni Principle' 'mitigating Factors' 'good Character' 'prospects of Rehabilitation' 'special Circumstances' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentence for Sexual Intercourse Without Consent / Sentence Hearing After Jury Verdict of Guilty on Count 2 and Not Guilty on Counts 1 and 3

Legal Issues

  1. 1 ["What facts should be found for sentencing consistently with the jury's mixed verdicts and the De Simoni principle." 'Where the offence under s 61I of the Crimes Act 1900 (NSW) fell on the scale of objective seriousness.' 'What weight should be given to the victim impact statement.' 'What mitigating factors applied, including absence of prior convictions, prior good character, health, age, likelihood of reoffending and prospects of rehabilitation.' 'Whether the sentence should be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether special circumstances justified a non-parole period shorter than the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

The offence fell within the lower range of objective seriousness, but not at the lowest end. It involved actual knowledge of non-consent, short-duration digital intercourse, some force and restraint, and surrounding circumstances including GL retreating from physical contact and the offender persisting. Although the offender had no prior convictions, prior good character, good prospects of rehabilitation, low likelihood of reoffending and relevant health issues, the purposes of sentencing required a custodial penalty and suspension did not arise. Special circumstances were established because it was the offender's first time in custody, his health, low likelihood of reoffending and good...

Court Disposition

The offender was convicted on Count 2 and sentenced to 3 years imprisonment with a non-parole period of 18 months and release on parole at the expiration of the non-parole period.

Orders

  • ["On Count 2 on the indictment to which the offender was found guilty, the offender is convicted and sentenced to a term of 3 years imprisonment to date from today's date, expiring on 12 February 2021." 'Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today,...