R v Reyniel HERRERA MARCIAL [2011] NSWDC 119

R v Reyniel HERRERA MARCIAL [2011] NSWDC 119

The offence fell just below the middle of the range of objective seriousness, in the upper half of the lowest range. Its seriousness, including the victim being asleep, the lack of opportunity to prepare, unprotected intercourse and ejaculation, made a non-custodial or suspended sentence inappropriate; a sentence of two years or less would be inadequate, so suspension was unavailable. Taking into account the offender's personal circumstances, guarded rehabilitation prospects, absence of remorse because he maintained innocence, and special circumstances arising from his first time in custody and need for treatment in the community, the appropriate sentence was four years imprisonment with...

Jurisdiction
Australia
Judgment Date
17 August 2011
Procedural Posture
Criminal Sentence for Sexual Intercourse Without Consent / Sentence After Jury Verdict and Conviction After Trial
Outcome
The offender was sentenced to imprisonment for four years, with a non-parole period of two years and six months and a balance of term of one year and six months.
Legal Topics
['sexual Intercourse Without Consent' 'standard Non Parole Period' 'objective Seriousness' 'victim Impact Statement' 'suspended Sentence' 'special Circumstances' 'rehabilitation']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'standard Non Parole Period' 'objective Seriousness' 'victim Impact Statement' 'suspended Sentence' 'special Circumstances' 'rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentence for Sexual Intercourse Without Consent / Sentence After Jury Verdict and Conviction After Trial

Legal Issues

  1. 1 ['Where the offence of sexual intercourse without consent lay in the range of objective seriousness for an offence with a standard non-parole period.' 'Whether imprisonment was unavoidable and whether a suspended sentence was available or appropriate.' "Whether the offender's depression, anxiety, alcohol and drug issues, possible childhood sexual abuse, community support and rehabilitation prospects affected sentence." 'Whether special circumstances justified a non-parole period lower than the usual relationship to the head sentence.']

Ratio Decidendi

The offence fell just below the middle of the range of objective seriousness, in the upper half of the lowest range. Its seriousness, including the victim being asleep, the lack of opportunity to prepare, unprotected intercourse and ejaculation, made a non-custodial or suspended sentence inappropriate; a sentence of two years or less would be inadequate, so suspension was unavailable. Taking into account the offender's personal circumstances, guarded rehabilitation prospects, absence of remorse because he maintained innocence, and special circumstances arising from his first time in custody and need for treatment in the community, the appropriate sentence was four years imprisonment with...

Court Disposition

The offender was sentenced to imprisonment for four years, with a non-parole period of two years and six months and a balance of term of one year and six months.

Orders

  • ['Sentence commenced on 10 August 2011.' 'Non-parole period of two and one half years commencing on 10 August 2011 and expiring on 9 February 2014.' 'Balance of term of one and a half years commencing on 10 February 2014 and expiring on 9 August 2015.' 'First date eligible for parole is 9 February 2014.']