R v Smee [2023] NSWDC 618

R v Smee [2023] NSWDC 618

The offender was found guilty of aggravated sexual assault under s 61J(1) Crimes Act 1900 (NSW), having engaged in cunnilingus with a 15-year-old victim who was substantially intoxicated and incapable of consent, with the offender knowing her state at the time. His admissions, while central to the Crown case, did not warrant a sentencing discount as they were made without awareness of criminality and he persisted in asserting consent. Objective seriousness was below midrange but not lowest. Special circumstances justified a shortened non-parole period. Custodial sentence was appropriate.

Jurisdiction
Australia
Judgment Date
14 December 2023
Procedural Posture
Criminal / Sentencing After Trial Verdict
Outcome
guilty - custodial sentence imposed
Legal Topics
['sexual Offences' 'aggravated Sexual Assault' 'intoxication' 'consent' 'sentencing']
['criminal Law'] ['sexual Offences' 'aggravated Sexual Assault' 'intoxication' 'consent' 'sentencing']

Case Brief

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Procedural Posture

Criminal / Sentencing After Trial Verdict

Legal Issues

  1. 1 ['Whether the offender committed aggravated sexual assault involving a victim under 16 years who was substantially intoxicated' 'Whether the victim consented and whether the offender knew the victim was not consenting' 'Assessment of objective seriousness and moral culpability for sentencing' 'Applicability of sentencing discounts for admissions' 'Special circumstances in sentencing']

Ratio Decidendi

The offender was found guilty of aggravated sexual assault under s 61J(1) Crimes Act 1900 (NSW), having engaged in cunnilingus with a 15-year-old victim who was substantially intoxicated and incapable of consent, with the offender knowing her state at the time. His admissions, while central to the Crown case, did not warrant a sentencing discount as they were made without awareness of criminality and he persisted in asserting consent. Objective seriousness was below midrange but not lowest. Special circumstances justified a shortened non-parole period. Custodial sentence was appropriate.

Court Disposition

guilty - custodial sentence imposed

Orders

  • ['Conviction entered against Jayden Smee.' 'Sentence of imprisonment for 3 years, commencing 14 December 2023.' 'Non-parole period of 1 year 6 months.' 'Eligible for parole on 13 June 2025.' 'Sentence expires on 13 December 2026.' "Mental health plan and psychologist's report to accompany offender to Corrective...