R v Bailey, Jason (a pseudonym) [2021] NSWDC 372

R v Bailey, Jason (a pseudonym) [2021] NSWDC 372

Although the offences were serious, the first was at a low level and the second towards the lower end of objective seriousness for s 61KC offences, involving brief touching of the breast outside and beneath clothing, without threats, physical force or resistance, and without a finding of actual knowledge of lack of consent. The offender's limited prior history, long offence-free period, absence of sexual offending history, low risk of reoffending, reasonable prospects of rehabilitation, personal hardship and time already served were mitigating. Deterrence, accountability, denunciation, adequate punishment and recognition of harm required imprisonment, but the appropriate aggregate fixed...

Jurisdiction
Australia
Judgment Date
08 July 2021
Procedural Posture
Criminal Sentencing for Sexual Touching Without Consent / Sentence After Conviction by Jury
Outcome
Aggregate fixed term of six months' imprisonment imposed, backdated from 26 August 2019 to expire on 25 February 2020; offender entitled to be released forthwith.
Legal Topics
['sexual Touching Without Consent' 'knowledge About Consent' 'objective Seriousness' 'mitigating Factors' 'risk of Reoffending' 'time Served']
['criminal Law' 'sentencing'] ['sexual Touching Without Consent' 'knowledge About Consent' 'objective Seriousness' 'mitigating Factors' 'risk of Reoffending' 'time Served']

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Procedural Posture

Criminal Sentencing for Sexual Touching Without Consent / Sentence After Conviction by Jury

Legal Issues

  1. 1 ['What sentence should be imposed for two counts of sexual touching without consent under s 61KC(a) of the Crimes Act 1900.' "Whether the offender's knowledge of lack of consent should be treated as actual knowledge, recklessness, or absence of reasonable grounds for belief in consent under s 61HE(3) of the Crimes Act 1900." 'Whether any penalty other than imprisonment was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999.' "How the offender's time already served in custody should affect the sentence."]

Ratio Decidendi

Although the offences were serious, the first was at a low level and the second towards the lower end of objective seriousness for s 61KC offences, involving brief touching of the breast outside and beneath clothing, without threats, physical force or resistance, and without a finding of actual knowledge of lack of consent. The offender's limited prior history, long offence-free period, absence of sexual offending history, low risk of reoffending, reasonable prospects of rehabilitation, personal hardship and time already served were mitigating. Deterrence, accountability, denunciation, adequate punishment and recognition of harm required imprisonment, but the appropriate aggregate fixed...

Court Disposition

Aggregate fixed term of six months' imprisonment imposed, backdated from 26 August 2019 to expire on 25 February 2020; offender entitled to be released forthwith.

Orders

  • ["I impose an aggregate sentence of a fixed term of six months' imprisonment, to date from 26 August 2019 and expiring on 25 February 2020." "I would specify indicative sentences of two months' imprisonment on Count 2 and five months' imprisonment on Count 5 on the indictment." 'The offender is entitled to be...