Citation: [2026] NSWDC 149
Court: District Court of New South Wales
Date: 1 April 2026
Judge(s): Bourke SC DCJ
Background
The offender, a 47-year-old man, pleaded guilty to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. Two additional offences of sexual touching without consent under s 61KC(a) were listed on a Form 1 to be taken into account on sentence. All offending arose from a single incident in the early hours of 3 May 2024 at the offender's apartment in Cardiff, where the victim was also living at the time.
The victim, aged 32, had initially met the offender through her work as an escort. The offender became her "manager," and she subsequently moved into his apartment. Both were users of methylamphetamine and GHB. On the night of the offending, both had consumed those drugs. While the victim was unconscious or asleep, the offender engaged in penile/vaginal intercourse with her for over 20 minutes. The assault was captured on an internal CCTV camera in the living area.
The victim discovered the footage the following night when reviewing the CCTV. When police later attended the premises in response to a separate domestic incident, the offender acknowledged that video footage existed and, upon viewing it, described it as "pretty damning." In a subsequent police interview, he agreed the intercourse was non-consensual and expressed horror at his own conduct.
Legal Issues
- What was the objective seriousness of the offence of sexual intercourse without consent in the circumstances of this case?
- What discount should be applied for the offender's plea of guilty?
- What weight should be given to the matters on the Form 1 document (two counts of sexual touching without consent)?
- What role did the offender's drug use and lack of memory play in the assessment of moral culpability?
- How did the standard non-parole period and maximum penalty for s 61I operate as sentencing guideposts?
Decision
The court assessed the objective seriousness of the offence by reference to several aggravating features. The offending occurred in the victim's home, where she was entitled to feel safe. The intercourse lasted over 20 minutes, making it of "considerable duration." The victim was unconscious and therefore particularly vulnerable, though the court took care not to double-count unconsciousness and vulnerability as separate aggravating factors.
Bourke SC DCJ referred to Fisher v R [2021] NSWCCA 91 in considering the seriousness of initiating sexual intercourse with an unconscious person. The court treated the victim's state of unconsciousness as a central feature bearing on the gravity of the offending.
The offender received a 10 per cent discount on sentence for the utilitarian value of his guilty plea. That discount was limited because the plea was not entered at the earliest opportunity. The two Form 1 offences of sexual touching (kissing the victim's breast and placing his face between her legs while she was unconscious) were taken into account as part of the same incident.
The court considered the offender's admissions to police, including his acknowledgement that the intercourse was non-consensual and his expression of remorse, as well as his drug use and claimed lack of memory. The maximum penalty of 14 years imprisonment and the standard non-parole period of seven years were treated as important guideposts in fixing the appropriate sentence.
Orders Made
- The full text of the judgment was truncated, and the specific sentence imposed by the court was not included in the available extract. The court proceeded to sentence based on its assessment of objective seriousness, the 10 per cent guilty plea discount, and the Form 1 matters.
Key Takeaways
- Under s 61I of the Crimes Act 1900, sexual intercourse without consent carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years, both of which serve as important guideposts in sentencing.
- No fixed hierarchy determines the seriousness of the offence by reference to the type of sexual intercourse; each case must be assessed on its particular circumstances, including duration, location, and the victim's vulnerability.
- A guilty plea entered other than at the earliest opportunity attracted only a 10 per cent utilitarian discount, reflecting the agreed position between the parties.
- The District Court was careful to avoid double-counting the victim's unconsciousness as both the basis for the absence of consent and a separate vulnerability factor.
- Where CCTV footage provided direct evidence of the offending and the offender acknowledged non-consent in police interviews, these matters informed both the factual findings and the assessment of the offender's post-offence conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KC(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Fisher v R [2021] NSWCCA 91