When an offender is sentenced for multiple offences, a court must ensure the overall sentence reflects the totality of the criminality, by determining the degree to which separate sentences are to be made concurrent or consecutive: see The principle of Totality at [8-200]ff. When imposing an aggregate sentence, under s 53A Crimes (Sentencing Procedure) Act 1999, the degree of accumulation and concurrency of indicative sentences is notional: see discussion at [7-505] and [7-507] under the heading Application of Pearce v The Queen and the totality principle (propositions 1, 4 and 6).

When the offender is being sentenced for discrete, independent acts against different victims, the sentence should reflect that more than one victim has been impacted. For example, the aggregate sentence imposed on resentence in Benn v R [2023] NSWCCA 24 reflected “considerable notional accumulation” between 14 separate episodes of serious sexual offending against different young women: at [183]; see also Van der Baan v R [2012] NSWCCA 5, involving the application of totality for sexual offending against multiple victims, including offending the subject of earlier sentences: at [11], [107]–[118].

Merely because offences occur during a single episode does not justify the conclusion the sentences are to be wholly concurrent: Nguyen v R [2007] NSWCCA 14 at [12]; R v Gorman [2002] NSWCCA 516 at [9]; Cahyadi v R [2007] NSWCCA 1 at [27]. For example, in Hall v R [2021] NSWCCA 220 in which the offender detained and sexually assaulted his partner over a 12.5-hour period, the sentencing judge was satisfied “some partial accumulation” of the indicative sentences (totaling approximately 52 years) was warranted to reflect totality and imposed an aggregate sentence of 22 years imprisonment. The Court dismissed the sentence appeal finding the sentence was proportionate to the overall objective criminality in the offending: [88], [110].

Beyond giving an indication sentences (or indicative sentences) might be concurrent or accumulated, partly or wholly, a sentencing judge is not required to explain every facet of the totality principle or to indicate the degree of concurrence: R v Hall at [75]–[91]; [138]; see also Benn v R at [141]–[142]; [191].

Contrary to the common law position, for proceedings commenced on or after 18 October 2022, s 21B Crimes (Sentencing Procedure) Act 1999 provides the court must sentence an offender “in accordance with the sentencing patterns and practices at the time of sentencing” unless there are exceptional circumstances: s 21B(1), (3). The standard non-parole period (SNPP) for an offence is the SNPP, if any, that applied at the time the offence was committed, not at the time of sentencing: s 21B(2); see also [7-930] Exclusions and inclusions from Pt 4 Div 1A. For a discussion of s 21B(1), (3), see Delay at [10-530]; see also Sentencing patterns and practices: ss 21B, 25AA(5) at [17-430] Specific sentencing provisions for child sexual offences.

Section 67(1)(b) Crimes (Sentencing Procedure) Act 1999 provides an intensive correction order (ICO) must not be made in respect of a sentence of imprisonment for a “prescribed sexual offence”. A “prescribed sexual offence” is defined in s 67(2) and includes offences involving sexual intercourse. See further Restrictions on power to make ICO at [3-620].

The use of Judicial Commission statistics in sentencing is addressed in detail at [10-024] Use of sentencing statistics.

In R v Shortland [2018] NSWCCA 34, a Crown sentence appeal where the offender was found guilty after trial of sexual intercourse without consent (s 61I) and a suspended sentence was imposed, Basten JA (RA Hulme J agreeing) found the sentencing judge erroneously focused on 26 cases where a suspended sentence was imposed, out of a total of 237 cases. In circumstances where only three of those 237 cases involved a guilty finding after trial, this did not constitute a relevant sentencing pattern: [6].

“Domestic violence offence” is defined in s 11 of the Crimes (Personal and Domestic Violence) Act 2007 to include a “personal violence offence” committed against a person with whom the offender has, or has had, a “domestic relationship” (ss 5, 5A), which encapsulates multiple forms of sexual offending (s 4): see The relevance of a prior relationship and consent to other sexual acts at [20-620] Assessing objective seriousness; see also [63-500] Domestic violence offences.

From 1 June 2022, “sexual intercourse” is defined in s 61HA(1) Crimes Act as:

It does not include penetration carried out solely for proper medical or hygienic purposes: s 61HA(2). Previous iterations, since at least the 1990s, differed mainly in form and language. For an overview of the key amending legislation concerning the definition of sexual intercourse and other related terms see [1-030] in the Sexual Assault Trials Handbook .

In Ibbs v The Queen (1987) 163 CLR 447 at 452, Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ stated:

Ibbs v The Queen is often cited as authority for the general proposition that the sentencing judge must assess and take into account where the conduct fits in the continuum of seriousness for a given offence: see, for example, R v Alcazar [2017] NSWCCA 51 at [37]; DN v R [2016] NSWCCA 252 at [106].

In R v AJP [2004] NSWCCA 434, a sentence appeal for an offence of sexual intercourse with a child (s 66A), Simpson J (Adams and Howie JJ agreeing) noted it is impossible to create a hierarchy of the seriousness of the various kinds of sexual intercourse as contemplated in the statutory definition (then s 61H), and it is the facts and circumstances of each case, including the nature of the intercourse, that enables proper evaluation of the objective seriousness of the offence: [23]–[25]. In R v PGM [2008] NSWCCA 172, an appeal involving a child sexual intercourse offence, Fullerton J at [26] summarised the position as follows:

This line of authority emphasises the form of intercourse is not the sole consideration, and objective seriousness is to be assessed according to the entirety of the facts and circumstances of the offending: see, for example, R v Hibberd at [55]–[56]; R v Daley at [51]; and Tindall v R [2019] NSWCCA 136 at [12] (and the cases cited there). It is against this background that courts have considered the relative seriousness of the different categories of sexual intercourse, particularly penile penetrative sex as compared to other forms.

Duration is a relevant consideration in determining objective seriousness: R v Hibberd [2009] NSWCCA 20 at [56]. However, the short duration of a sexual assault will not ordinarily be considered as a factor which reduces the objective seriousness of the offence: R v Daley [2010] NSWCCA 223 at [48]; Russell v R [2010] NSWCCA 248 at [67]; Cowling v R [2015] NSWCCA 213 at [16]. In Kelly v R [2022] NSWCCA 189, the Court explained this is because sexual offences of allegedly short duration can have lifelong effects: [33]; R v Jackson [2024] NSWCCA 156 at [53]. In R v Sharrouf [2023] NSWCCA 137, the Court held that where the offending (including sexual intercourse without consent) was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor: [168].

In R v Daley, the Court also observed a sexual assault of extended duration will necessarily add to the seriousness of offending as the suffering and humiliation of the victim will be increased: [48]; R v Ibrahim [2021] NSWCCA 296 at [53].

The age difference between an offender and victim can be relevant to objective seriousness in certain circumstances. In R v Shortland [2018] NSWCCA 34, the Court found the lack of a significant age gap between the 25-year-old offender and 31-year-old victim was immaterial when determining the objective seriousness of the offence and observed, in cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant: [15]; see also R v Ibrahim [2021] NSWCCA 296 at [51]. However, in Mohindra v R [2020] NSWCCA 340, the Court emphasised it was the absence of a significant age gap that was immaterial in the circumstances where the victim and offender are young adults, and that proposition did not imply the existence of a significant age difference between an older man and a young woman in her teens or a little older would not be highly relevant: [58].

Mohindra v R was applied in Baker v R [2022] NSWCCA 195. In that case, which involved a 17-year-old victim and 31-year-old offender, the Court found the sentencing judge did not err by having regard to the age discrepancy, it being relevant to objective seriousness because the differential increased the victim’s vulnerability, which the offender exploited: [22]–[24]; see also R v Jackson [2024] NSWCCA 156 at [54], [66].

The observations of Grove J in Saddler v R [2009] NSWCCA 83 at [3], that the absence of a factor which would elevate the seriousness of offending is not a matter of mitigation, have been frequently applied in the context of sexual offending against children: see for example SB v R [2022] NSWCCA 164 at [61]–[62] and the cases cited there; see [17-400] Sexual offences against children. As a general principle, this was relied upon in Tindall v R [2019] NSWCCA 136 at [6]–[8], concerning an offence of aggravated sexual assault. However, as to the universal application of this principle, see Simpson v R [2019] NSWCCA 137 at [27].

Generally, that an offender does not ejaculate inside the victim’s body does not operate in mitigation on sentence. For example, in Dawson v R [2013] NSWCCA 61, the Court expressed the view the lack of ejaculation in penile-vaginal intercourse could not have reduced the objective seriousness of the offence in any real way, and noted the sentencing judge’s conclusion there was no risk of disease lacked evidentiary foundation, and that there was no risk of pregnancy, was questionable: [74]. Similarly, in Martin v R [2015] NSWCCA 6, the Court did not consider the offender’s wearing of a condom in that case reduced the objective seriousness of the offence: [59]. In Kramer v R [2023] NSWCCA 152, where the victim was actively pushing the offender off and telling him to stop, the Court found the fact the offender withdrew before ejaculation should not have been a factor in mitigation: [189].

In contrast, ejaculation into the victim’s body aggravates the offence: [20-640] Aggravating factors.

In Kelly v R [2022] NSWCCA 189, where the victim awoke to the offender having sexual intercourse with her, the Court held the absence of threatening conduct when the victim is unconscious does not serve to lessen the objective seriousness, given threats are plainly unnecessary in the circumstances: [35]; see also Branagan v R [2020] NSWCCA 158 at [66]. For similar reasons, violence would have been superfluous in the circumstances, and the Court observed it would have been an error for the sentencing judge to reduce the objective seriousness on the basis there had been no actual or grievous bodily harm or wounding, or threats of same, as such offending would attract the more serious charge under s 61J: [38]; see also Fisher v R; R v Fisher [2021] NSWCCA 91 at [84] (Fullerton J); Kramer v R [2023] NSWCCA 152 at [122]; [188]; cf Cowling v R [2015] NSWCCA 213 at [16], [18]; see also De Simoni principle and 61I at Sexual intercourse without consent: s 61I at [20-660].

In R v Sharrouf [2023] NSWCCA 137, a Crown sentence appeal for 21 distinct occasions of domestic violence offending (including sexual assaults), the sentencing judge placed some emphasis on the offences being committed spontaneously and being of short duration. On the issue of planning, the Court at [167] relied on the observations of Adamson J in Kennedy v R [2022] NSWCCA 215 at [51]: “… it is typical of offences of domestic violence committed by persons such as the applicant that they are not ‘premeditated’. Thus, the lack of planning in this context is of negligible, if any significance.” See also Duration above.

The objective seriousness of a sexual offence cannot be reduced because of a pre-existing relationship between an offender and the victim: R v Cortese [2013] NSWCCA 148 at [55]. Although there has been some divergence in the authorities as to when and how the relationship between an offender and the victim might have some bearing on objective seriousness, generally, sexual offences committed in the context of a previous or existing relationship are not less objectively serious than those committed by a person unknown to the victim: Kiss v R [2021] NSWCCA 158 at [81]–[102]; see also Bussey v R [2020] NSWCCA 280 at [89]–[94].

In Bussey v R, the Court stated:

See also Moore v R [2024] NSWCCA 115 at [85].

In Bussey v R, the Court did accept that the existence of the prior relationship may have had some bearing upon the offender’s state of mind with respect to the issue of consent: [106]. A similar conclusion was reached in Kramer v R [2023] NSWCCA 152, where the victim had consented to some sexual contact but not penile-vaginal intercourse. The Court, considering the discussion in R v Cortese [2013] NSWCCA 148, agreed that prevarication or at least initial consent may affect the objective seriousness of an offence because it may impact the finding about the offender’s state of mind and their knowledge of lack of consent: [186]; cf Bellchambers v R [2011] NSWCCA 131 at [47]. However, where a complainant is clear and unambiguous about the acts they do not want to participate in, the fact they chose to participate in other acts does not mitigate the objective seriousness of the offending acts: [186].

Other authorities emphasise that the offending must be assessed in the context of the relationship between the offender and victim: see, for example, NM v R [2012] NSWCCA 215 at [53]; Norman v R [2012] NSWCCA 230 at [60]. Nevertheless, cases seeking to draw a distinction between sexual assault by a stranger and in a domestic relationship (such as Boney v R [2008] NSWCCA 165 at [106]; NM v R at [59]) should be read in light of the cases cited above. For example, while the Court in ZZ v R [2013] NSWCCA 83 accepted the context of the prior relationship had to be considered, this provided no real assistance to the offender on sentence, given the significant violence and injuries: [107]. Similarly, in SC v R [2019] NSWCCA 25, the Court observed a pre-existing relationship between the offender and the victim is merely one of many factors to be taken into account, and rejected the proposition that sexual intercourse without consent in a domestic violence context, of itself, is less serious than sexual assault by a stranger: [100]–[106]. In Kiss v R, this notion was described as “outdated and long discredited”: [80], [102]. See also Sentencing approach to domestic violence at [63-500].

In R v MAK [2005] NSWCCA 369, one of the offenders submitted the Court should favourably consider his appeal because, having come from Pakistan, he was culturally conditioned by its “very traditional views about women”. Grove J (McClellan CJ at CL and Hall J agreeing), noting the submission did not assist the offender to mitigate the offence, said:

See [10-030] Uncharged acts.

See [10-480] Self-induced intoxication.

Where a person is found guilty after jury trial of a sexual offence where non-consent is an element, it is a matter for the sentencing judge to determine the basis on which the offender is to have known the victim was not consenting: Pender v R [2023] NSWCCA 291 at [19]; Kramer v R [2023] NSWCCA 152 at [158]. Failing to explain the basis on which the issue of consent is resolved in these circumstances can lead to error: R v Alcazar [2017] NSWCCA 51 at [45]. This issue does not generally arise when an offender pleads guilty and “agreed facts” are tendered.

The offender’s state of mind is a feature that will ordinarily be relevant on sentence to both the objective seriousness of an offence and the offender’s moral culpability. “Generally, the offender who is well aware of the victim’s refusal to participate in sexual activity but proceeds nevertheless will both commit a more serious crime, and be more worthy of blame than the offender who is reckless as to the lack of consent”: Stein v R [2023] NSWCCA 324 at [56]; see also Factors relevant to assessing objective seriousness at [10-012].

In relation to the categories of knowledge of non-consent, a strict hierarchy of lessening seriousness may not apply. While in Saffin v R [2020] NSWCCA 246 at [22], the categories were described as being in “reducing degrees of moral culpability”, it has been observed that there are no “bright line demarcations”, and although they may often in a very general sense be seen as decreasing in order of seriousness, this is not invariably so; the seriousness of the offending will depend on all of the circumstances: Slater v R [2024] NSWCCA 210 at [68]; R v Ibrahim [2021] NSWCCA 296 at [48]; see also Pender v R at [36]; R v RE [2023] NSWCCA 184 at [21]–[22].

For example, in Cornish v R [2024] NSWCCA 177, the victim was recorded as having said “no” 133 times during the sexual assault, and the offender was sentenced at first instance on the basis of unreasonable belief. The Court said: “Even accepting that actual knowledge is more serious than an unreasonable belief in consent, the present is an extreme case where the agreed facts demonstrate the complete unreasonableness of the belief which the sentencing judge found the applicant had”: [51]. In a similar vein, in Kiss v R [2021] NSWCCA 158, the Court rejected the offender’s submission the judge erred in finding he actually knew the victim, his partner, was not consenting, in circumstances where he repeatedly assaulted her: [76]. The Court observed:

Accordingly, there is a danger in treating the offender’s state of mind as a separate and distinct feature of the matter adding to the gravity of the offending, and that state of mind is not irrelevant but is inextricably entwined with the circumstances of the offending more generally: R v Ibrahim at [50] cited in R v RE at [27].

Self-induced intoxication cannot be used to inform an assessment of the offender’s “state of mind, awareness or perception at the time of offending” or “knowledge of whether the complainant consented”: Pender v R at [51] citing Fisher v R; R v Fisher [2021] NSWCCA 91 at [74] (Fullerton J); [225] (Adamson J); see Self-induced intoxication at [10-480].

The statutory aggravating factor in s 21A(2)(k) — that the offender abused a position of trust or authority in relation to the victim — often has application to sexual offences. For some sexual offences committed in circumstances of aggravation, an element of the offence is that the complainant was under the authority of the offender (see, for example, ss 61J(2)(e), 61KD(2)(b) and 61KF(2)(b)). Accordingly, considerations relating to the distinction between trust and authority, double counting, and breaches of the De Simoni principle may arise. See also:

Relationships of trust and/or authority have been recognised in a variety of situations involving sexual offending, many of which are listed at [11-160]. Additional examples include :

It has been accepted that society places higher expectations on registered health professionals: R v Ibrahim [2021] NSWCCA 296 at [37]–[43]; see also Jung v R [2017] NSWCCA 24 at [60]–[64]. In R v Arvind (unrep, 8/3/96, NSWCCA), the Court held the gravity of the sexual offences committed by a doctor on his patient were magnified by the circumstance that it involved a breach of trust which the patient reposed in a medical practitioner: [16]. In R v Ibrahim, involving a pharmacist committing a single offence of sexual intercourse without consent, Dhanji J (Johnson and Lonergan JJ agreeing) explained:

In R v Ibrahim, while the offender’s status as a registered health professional was relevant, and the offending serious, the opportunistic nature of the offending was contrasted with an offender who uses a medical practice to systematically abuse patients (as in Jung), and an offender who deliberately targets an ongoing patient with vulnerabilities (as in Arvind): [43].

The statutory aggravating factor in s 21A(2)(g) — that the injury, emotional harm, loss or damage caused by the offence was substantial — often arises in cases involving sexual offending, including in circumstances where a Victim Impact Statement is adduced on sentence. See:

In Stein v R [2023] NSWCCA 324, in response to a complaint the sentencing judge had erred in the weight given to the harm done to the victim, Wilson J (Fagan and Sweeney JJ agreeing) explained:

Moreover, the use of the word “devastating” to describe the impact to the victim did not mean s 21A(2)(g) had been applied, where devastating harm is exactly what might be expected to be occasioned by the commission of a sexual assault: [93].

Where there are multiple offences, s 21A(2)(g) needs to be considered in respect of each offence: R v Packer [2023] NSWCCA 87 at [10]; [78]. In R v Packer, there was a mixture of sexual offences and intimate image offences (ss 91P–91Q) relating to the recording of the assaults. The Court found the judge was right to be concerned about approaching the application of the statutory aggravating factor globally, however then erred in not taking into account substantial harm at all, where the evidence disclosed the victim had been alienated from her family and friends in Nepal and her student status in Australia had been affected: [16]; [78]–[79]. Davies J (Wilson J agreeing), and Simpson AJA (dissenting on this ground as formulated), offered different approaches to remedy this error: [11]–[15]; [84]–[86].

The statutory aggravating factor in s 21A(2)(l) — that the victim was vulnerable — is concerned with classes of victims and not to a vulnerability that arises only from the circumstances of the offence: Du Plessis v R [2024] NSWCCA 164 at [58]. In Du Plessis v R, the Court set out the authorities where, for the purpose of s 21A(2)(l), classes of victims have been identified: [59]–[61]; see also [11-170] Section 21A(2)(l) — the victim as vulnerable, and Vulnerability of the victim — s 21A(2)(l) at [17-440] Aggravating factors in relation to sexual offences against children.

Ejaculation into the victim’s body is an aggravating factor that can increase the overall seriousness of the offence: GP (a pseudonym) v R [2021] NSWCCA 180 at [3]; [55] citing KAB v R [2015] NSWCCA 55 at [85]–[86]; R v MS [2005] NSWCCA 322 at [16]; R v Oloitoa [2007] NSWCCA 177 at [42]. Even without the risk of pregnancy, ejaculation into a victim’s body is an act which adds to the degradation of the victim: GP (a pseudonym) v R at [55]; KAB v R at [86].

The forced ingestion of drugs for the purposes of ensuring or encouraging compliance with unwanted sexual acts is something which significantly elevates the seriousness of the offending: Irmak v R [2021] NSWCCA 178 at [314].

For a discussion of drink spiking offences, see Assault, wounding and related offences at [50-110]; see also Section 21A(2)(cb) — the offence involved the victim being made to ingest intoxicating substances at [11-087].

The fact a juvenile offender is to be sentenced according to law does not diminish the significance of their youth: LS v R [2020] NSWCCA 120 at [58]. The general provisions in the Children (Criminal Proceedings) Act 1987 concerning the treatment of children under criminal law, including s 6, apply: Campbell v R [2018] NSWCCA 87 at [26]–[29]; LS v R at [58]; see also Guiding principles at [15-010] and Sentencing principles applicable to children dealt with at law at [15-090].

Beyond the relevant statutory provisions, the sentencing principles applicable to juveniles and young adults at common law are well established: see [10-440] Youth.

General sentencing principles include:

While the courts have at times urged caution as to the qualification concerning “adult behaviour” (such as in BP v R [2010] NSWCCA 159 at [6], TM v R [2023] NSWCCA 185 at [49]), it is often applied in matters involving serious sexual offending, with courts emphasising their protective function: see, for example, R v Nichols (1991) 57 A Crim R 391; R v Gordon (1994) 71 A Crim R 459; R v BUS (unrep, 3/11/95 NSWCCA); R v DAR (unrep, 2/10/97, NSWCCA); R v AEM [2002] NSWCCA 58 at [97]–[98]; R v Alcazar [2017] NSWCCA 51 at [122]–[124]. However, in circumstances of domestic violence as in Sharrouf v R [2023] NSWCCA 137, the Court found the offender’s youth (aged 20–21 years old at the time of offending) did not in any way mitigate his repetitive violent offending against his then wife: [213]; [270].

In Carreno v R [2023] NSWCCA 20, the offender was sentenced for offences arising from a historic “home invasion”, including violent sexual assaults on an occupant, from when he was 19 years old. The Court agreed with the sentencing judge that the nature of the offending was such that youth carried limited significance, and, in any event, because the offender had prior convictions and was 42 years old at the time of sentence, the principles concerning youth and rehabilitation had little part to play: [73]. For similar reasons, the Court found comparative sentences which focused on youthful offenders to be of limited relevance: [97].

For a discussion of youth in relation to sexual offences against children, see Youth at [17-450] Mitigating factors and Age of victim and offender at [17-435] Assessing objective seriousness of a child sexual offence.

There may be various dimensions to delay as a factor to be taken into account on sentence. The discussion below should be read in conjunction with:

Delay can arise in proceedings for sexual offending due to late identification of an offender, who is unknown to the victim. For offences committed within a domestic violence context, it is also not unusual for there to be a considerable delay, as it is “a direct product of the nature of the offending itself”: Hurst v R [2017] NSWCCA 114 at [132]. Whether delay is relevant, and if so, on what basis and to what extent, will depend on the circumstances of the case: R v Omar [2015] NSWCCA 67 at [73]; see also R v Hall [2017] NSWCCA 313 at [99].

In R v Todd [1982] 2 NSWLR 517 at 519 (extracted at [10-530]), Street J identified three reasons why delay may be taken into account on sentence:

R v Todd was approved in Mill v The Queen (1988) 166 CLR 59 at 66.

However, delay is not to be taken into account in mitigation where an offender experiences a state of suspense or uncertainty and they remain silent and hope their offending will remain undetected: R v Spiers [2008] NSWCCA 107 at [37]–[38]; Harris v R [2017] NSWCCA 254 at [39] (and the cases cited there); R v Hall at [63].

In R v Hall, involving late identification of a sex offender through DNA, the Court observed the descriptor of “delay” was inapt, suggesting “something might have occurred earlier was deferred, postponed, or put off until later”, when the passage of time between offending and apprehension was solely attributable to the offender evading detection: [98]. Similar findings were made in Hurst v R in relation to delay in domestic violence proceedings (including sexual offences), where the complainant was “a victim of ongoing domestic violence involving extreme controlling behaviour” and had taken years before feeling able to deal with the matter: [138].

Demonstration of rehabilitation between the offending and sentence proceedings can be taken into account in mitigation: see, for example, R v Omar at [73]; R v Hall at [119] cf Hurst v R at [139]–[140].

Generally, an attempted sexual assault will be less serious than the completed offence: FV v R [2006] NSWCCA 237 at [60]–[62]; Pratt v R [2021] NSWCCA 76 at [56]. However, in Pratt v R, where the attempted s 61I offence would have been completed but for the resistance of the victim and intervention of a witness, the objective seriousness was not significantly less than what the completed offence would have been: [56].

Note: As of 1 December 2018, s 61P (Attempt to commit an offence under ss 61I–61O) was repealed by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 and s 344A continues to apply. The standard non-parole period provisions in Pt 4 Div 1A Crimes Sentencing Procedure Act do not apply, except for the various manifestations of the offence of attempt murder, to attempt offences: DAC v R [2006] NSWCCA 265 at [10].

The court must disregard a matter of aggravation if taking it into account would punish the offender for an offence more serious than the offence for sentence: The Queen v De Simoni (1981) 147 CLR 383; see [1-500] De Simoni principle. The operation of the De Simoni principle is particularly salient in the context of a s 61I offence of sexual intercourse without consent given the circumstances of aggravation in s 61J(2), as well as the offence of aggravated sexual assault in company in s 61JA. In a similar vein, issues may arise in relation to double counting where the aggravating factor is an element of, or is inherent in, the offence.

In R v Johnson [2005] NSWCCA 186, the sentencing judge took into account as a matter of aggravation that the offences involved “violence of a sexual character”. According to Hunt AJA (Johnson J agreeing; Hulme J agreeing), violence can be taken into account provided it does not involve the infliction of actual bodily harm:

However, the Court concluded the judge erred by finding the offences themselves involved violence of a sexual character as this could only be a reference to what is inherent in the “sexual connection” involved in sexual intercourse: [24]–[26]; see also R v Daley [2010] NSWCCA 223 at [27]–[36]; Sharma v R [2017] NSWCCA 85 at [58].

Section 61L (rep) provides:

As with sexual assault, the court must consider where an indecent assault lies on the spectrum or scale of seriousness: Kearsley v R [2017] NSWCCA 28 at [107] citing Ibbs v The Queen (1987) 163 CLR 447. The nature and degree of the physical contact involved in the offence, the degree of force and the circumstances of humiliation are all relevant considerations in assessing the objective seriousness: Zhao v R [2019] NSWCCA 203 at [85]. An indecent assault is more serious where it involves direct contact with the skin, and where the touching is to the genital region: Zhao v R at [86] (and the cases cited there).

In R v O’Sullivan (unrep, 20/10/89, NSWCCA), Priestley JA said the sentencing judge had taken an “over-strict approach” in saying a custodial sentence had to be imposed in every case of indecent assault, as it was then defined.

Under s 61M(1) (rep) any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person is liable to imprisonment for 7 years. “Circumstances of aggravation” are defined in s 61M(3) (rep).

While it was in force, s 61M was subject to a number of amendments, some of which are highlighted at [17-490]. For the purpose of this discussion, it is sufficient to note that, until 1 January 2009, the age ceiling in s 61M(2) was 10 such that an aggravating circumstance for a s 61M(1) offence could be that the victim was under the age of 16. See the table at [5-1300] of the Criminal Trials Court Bench Book, which includes these repealed provisions and their operative dates.

From 1 February 2003, a standard non-parole period of 5 years applies to offences against s 61M(1). It has been observed that there are difficulties associated with the high SNPP relative to the maximum penalty: see, for example, BT v R [2010] NSWCCA 267 at [41]. For a more detailed discussion of this issue see [17-490] Aggravated indecent assault and act of indecency: ss 61M–61O (rep) Crimes Act.

For the maximum penalties, see Criminal Trial Courts Bench Book at [5-1300] Table — NSW and Commonwealth sexual offence provisions.