R v Jonathan Anthony Deane [2019] NSWDC 109

R v Jonathan Anthony Deane [2019] NSWDC 109

The offence was serious because the offender took advantage of the intoxicated and sleeping victim and digitally penetrated her for up to 10 minutes, but the absence of violence, coercion, planning, and the offender's cessation when consent was expressly refused placed the objective seriousness below mid-range and towards the middle of the low range for s 61I. The motel room was not treated as the victim's temporary home for s 21A(2)(eb). Given the seriousness of the sexual offence, the need for deterrence and denunciation, and the harm to the victim, the s 5 custody threshold was crossed and no penalty other than imprisonment was appropriate. Strong subjective factors, including youth,...

Jurisdiction
Australia
Judgment Date
28 March 2019
Procedural Posture
Criminal Sentencing for Sexual Intercourse Without Consent / Remarks on Sentence After Plea of Guilty
Outcome
Offender convicted and sentenced to a full time custodial sentence of 2 years imprisonment with a non-parole period of 12 months.
Legal Topics
['sexual Intercourse Without Consent' 'objective Seriousness' 'digital Penetration' 'general Deterrence' 'specific Deterrence' 'remorse' 'early Plea of Guilty' 'special Circumstances' 'full Time Custody']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'objective Seriousness' 'digital Penetration' 'general Deterrence' 'specific Deterrence' 'remorse' 'early Plea of Guilty' 'special Circumstances' 'full Time Custody']

Case Brief

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Procedural Posture

Criminal Sentencing for Sexual Intercourse Without Consent / Remarks on Sentence After Plea of Guilty

Legal Issues

  1. 1 ['What sentence should be imposed for one offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900.' 'Whether the objective seriousness of the offending was below mid-range or in the low range for an offence pursuant to s 61I.' "Whether the motel room was the victim's temporary home for the purpose of the aggravating factor in s 21A(2)(eb)." 'Whether the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 was crossed and no penalty other than imprisonment was appropriate.' 'Whether special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 justified varying the statutory ratio between the head sentence and non-parole period.']

Ratio Decidendi

The offence was serious because the offender took advantage of the intoxicated and sleeping victim and digitally penetrated her for up to 10 minutes, but the absence of violence, coercion, planning, and the offender's cessation when consent was expressly refused placed the objective seriousness below mid-range and towards the middle of the low range for s 61I. The motel room was not treated as the victim's temporary home for s 21A(2)(eb). Given the seriousness of the sexual offence, the need for deterrence and denunciation, and the harm to the victim, the s 5 custody threshold was crossed and no penalty other than imprisonment was appropriate. Strong subjective factors, including youth,...

Court Disposition

Offender convicted and sentenced to a full time custodial sentence of 2 years imprisonment with a non-parole period of 12 months.

Orders

  • ['You are convicted of the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900.' 'I sentence you to a non-parole period of 12 months to commence on 30 June 2018 and to expire on 29 June 2019.' 'The balance of term will be from 30 June 2019 for a period of 12 months.' 'Your parole...