AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 May 2021

R v Jarryd Lee HAYNE

[2021] NSWDC 242

Sexual offences
TRIAL FINDING OF GUILT BY JURY ALTERNATIVE CHARGES AGGRAVATING CIRCUMSTANCES LACK OF REMORSE HARDSHIP

Citation: R v Jarryd Lee Hayne [2021] NSWDC 242
Court: District Court of New South Wales
Date: 6 May 2021
Judge(s): H. L. Syme DCJ

Background

Following a re-trial, a jury found the offender guilty on 21 March 2021 of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The charges were alternative counts to the aggravated form of the offences under s 61J. The offender was a 28-year-old professional rugby league player at the time of the offending in September 2018.

The offences occurred at the home of the victim, a 26-year-old woman who was recovering from a serious illness and living with her mother in Newcastle. The offender attended her home late at night, while moderately intoxicated, with a taxi waiting outside. Despite the victim repeatedly saying "No" and attempting to resist, the offender forcibly removed her clothing and performed sexual acts without her consent. Physical injury resulted.

The sentencing hearing required the court to determine the appropriate penalties, taking into account the objective seriousness of the offences, the circumstances of the offending, and matters personal to the offender, including his background, absence of prior criminal history, and the hardship resulting from his loss of employment and public profile.

Legal Issues

  • What findings of fact could be made consistently with the jury's verdicts, to the criminal standard?
  • How should the objective seriousness of the two offences be assessed, including the relevance of the aggravating circumstances?
  • What weight should be given to mitigating factors, including the offender's prior good character, community contributions, and prospects of rehabilitation?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio?
  • How should an aggregate sentence be structured where two serious but near-simultaneous offences are involved?

Decision

Objective seriousness and findings of fact: The court rejected the offender's evidence that the victim consented, and accepted the victim's account. The court found the offender entered the victim's home by invitation, was moderately intoxicated, and committed the offences in a brief and forceful manner despite the victim clearly and repeatedly refusing. Physical injury was inflicted in the course of the offending. The jury's failure to find the recklessness element required for the aggravated charges under s 61J did not undermine its acceptance of the victim's account overall. The court treated these matters as relevant to objective seriousness.

Aggravating circumstances: The court identified the offending as occurring in the victim's own home, where she had a reasonable expectation of safety. The victim's vulnerability, resulting from her recent serious illness and physical condition at the time, was also noted. The offender's conduct was found to be a significant breach of the trust implicit in being invited into a private residence. No remorse was expressed by the offender.

Mitigating factors and special circumstances: The court acknowledged the offender's previous good character, community contributions, and the absence of any prior criminal history. The loss of his professional career and public standing was noted as a consequence of the conviction, though the court observed this was not a matter that reduced the sentence significantly. A finding of special circumstances was made, based on a combination of factors: community support, prospects of rehabilitation, prior good character, and the fact that it was the offender's first time in custody. This finding justified a non-parole period slightly below the standard ratio.

Aggregate sentence: The court imposed indicative sentences on each count and then constructed an aggregate sentence, with only a modest degree of aggregation given the near-simultaneous nature of the two offences. Each offence carried a maximum penalty of 14 years and a standard non-parole period of seven years, both of which the court used as legislative guideposts in framing the sentence.

Orders Made

  • Aggregate sentence of imprisonment of five years and nine months, with a non-parole period of three years and eight months, commencing 6 May 2021.
  • Eligibility for release on parole: 5 January 2025.
  • Balance of parole: two years and one month, commencing 6 January 2025.
  • Total sentence to expire: 5 February 2027.
  • Indicative sentence on Count 1: five years and three months, with an indicative non-parole period of three years and four months.
  • Indicative sentence on Count 2: five years and three months, with an indicative non-parole period of three years and four months.

Key Takeaways

  • The District Court confirmed that a jury's failure to find a specific mental element on an aggravated charge does not diminish the significance of its overall acceptance of the complainant's account, and those accepted facts remain available for sentencing purposes.
  • Where an offender enters a complainant's home by invitation and commits sexual offences in that setting, the breach of the expectation of safety within the home is a relevant aggravating consideration at sentencing.
  • A finding of special circumstances, justifying a departure from the standard non-parole period ratio, may be supported by a combination of factors including first-time custody, prior good character, community contribution, and genuine prospects of rehabilitation.
  • Loss of professional employment and public standing following conviction, while acknowledged by the court, carries limited mitigating weight in serious sexual offence sentencing.
  • Under the Crimes (Sentencing Procedure) Act, where two serious offences are near-simultaneous, an aggregate sentence with only modest accumulation reflects the distinct nature of each offence while avoiding disproportionate total punishment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act
- s 61I Crimes Act 1900

Cases
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Kearsley v R [2017] NSWCCA 28 in 2017
- R v May [1999] NSWCCA 40 at [7]
- Aliabadi v R [2020] NSWCCA 224
- Rahman v R [2020] NSWCCA 13
- Cordeiro v R [2019] NSWCCA 308
- Naveed v R [2019] NSWCCA 149
- Kenny v R [2010] NSWCCA 6