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District Court 20 March 2025

R v WIDDOWS

[2025] NSWDC 61

Sexual offences
CRIME SEXUAL OFFENCES SEXUAL INTERCOURSE WITHOUT CONSENT THREE COUNTS RECKLESS AS TO CONSENT SENTENCING PLEA OF GUILTY AT TRIAL

Citation: R v Widdows [2025] NSWDC 61
Court: District Court of New South Wales
Date: 20 March 2025
Judge: Lerve DCJ

Background

The offender, aged almost 23 at the time of the offending, pleaded guilty at trial to three counts of sexual intercourse without consent. The offences all occurred in a single episode on or about 16 May 2021 at Tullibigeal, NSW, involving three different acts of sexual intercourse with a female victim of similar age.

The offender and the victim had no prior relationship. Both had been drinking heavily at a local hotel and then attended an after-party. The victim was highly intoxicated throughout. The three offences occurred at a private residence in the early hours of the morning after the victim had repeatedly and clearly communicated that she did not consent.

The matter was committed for trial and the offender entered pleas of not guilty at arraignment in February 2024. At the commencement of the trial in October 2024, he pleaded guilty to the three counts, which the Crown accepted in full satisfaction of the indictment.

  • What guilty plea discount applied given the timing of the plea (on the day of trial)?
  • What was the appropriate sentence, taking into account the objective seriousness of the offending, the standard non-parole period, and the offender's personal circumstances?
  • Whether special circumstances existed to justify a non-parole period below the statutory default ratio.
  • Whether an aggregate sentence was appropriate given the three offences arose from a single episode.

Decision

Guilty plea discount. The Crown's submission prevailed on the discount question. Under section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, a plea entered on the day of trial attracts only a 5% discount for utilitarian value, not the 10% the defence submitted. His Honour accepted 5%. However, the plea was one of several factors supporting a finding, on the balance of probabilities, that the offender was genuinely remorseful.

Objective seriousness. Each offence carries a maximum of 14 years imprisonment and a standard non-parole period of 7 years. His Honour assessed the offending as serious, noting the victim's extreme intoxication, her repeated verbal refusals, her physical attempts to resist, and the offender's persistent conduct in overriding those refusals. The threshold under section 5 of the Act for imposing imprisonment was clearly met.

Personal circumstances and special circumstances. The court found a number of mitigating factors: the offender's remorse, his low likelihood of reoffending, strong prosocial supports in the community, and a good prospect of rehabilitation. His Honour made a substantial finding of special circumstances, reducing the non-parole period to 60% of the total sentence (below the statutory default of 75%). The reasons for this finding included the offender's age, the fact that this was his first time in custody, and the need for supervised reintegration into the community.

Aggregate sentence. His Honour determined an aggregate sentence was appropriate given all three offences occurred in the one episode. Individual indicative sentences were set for each count before the aggregate was fixed, consistent with the applicable sentencing authorities.

Orders Made

  • The offender was sentenced to an aggregate sentence of 4 years and 6 months.
  • The non-parole period is 2 years and 8 months, commencing 29 October 2024 and expiring 28 June 2027.
  • The balance of term (parole period) is 1 year and 10 months, commencing 29 June 2027 and expiring 28 April 2029.
  • The offender is eligible for release to parole at the expiration of the non-parole period, and his Honour recommended that release.
  • A copy of the psychological report (exhibit 1 on sentence) was directed to be forwarded to the Department of Corrective Services.

Key Takeaways

  • A guilty plea entered on the first day of trial attracts only a 5% utilitarian discount under section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, not the higher discounts available for earlier pleas.
  • The timing of a guilty plea does not preclude a finding of remorse; the District Court treated the plea as one of several factors supporting that finding on the balance of probabilities.
  • Where three counts of sexual intercourse without consent arise from a single episode, an aggregate sentence is an appropriate sentencing mechanism, provided the court sets out the indicative individual sentences underlying the aggregate figure.
  • A substantial finding of special circumstances can justify a non-parole period below the statutory default ratio where the offender is young, entering custody for the first time, and assessed as having good rehabilitation prospects with strong community supports.
  • Under section 5 of the Crimes (Sentencing Procedure) Act 1999, a court must consider all alternatives to imprisonment before imposing a custodial sentence; where offences carry a 14-year maximum and a 7-year standard non-parole period, and the objective seriousness is high, the imprisonment threshold will readily be crossed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25D(2)(c)

Cases
- Alenezi v R [2023] NSWCCA 283
- Doe v R [2013] NSWCCA 248
- Donald v R [2013] NSWCCA 238
- DPP (Cth) v De La Rosa (2010) NSWLR 1
- Hearne v R [2001] NSWCCA 37
- Locke v R [2010] NSWCCA 296
- Pender v R [2023] NSWCCA 291
- R v Ibrahim [2021] NSWCCA 296
- R v Jackson [2024] NSWCCA 156
- R v RE [2023] NSWCCA 183
- R v Tuala [2015] NSWCCA 8
- Shanmugam v R [2021] NSWCCA 125
- Sullivan and Skillin v R [2008] NSWCCA 296