R v SIM [2020] NSWDC 743

District Court New South Wales

Medium Neutral Citation: R v SIM [2020] NSWDC 743 Hearing dates: 7 December 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [79] Catchwords: CRIME — Sexual offences —sexual intercourse without consent. Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crime (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v AJP [2004] NSWCCA 434 Bonett v R [2013] NSWCCA 234 R v HJS [2020] NSWDC 480 Cowling v R [2015] NSWCCA 213 The Queen v Hewitt [2020] NSWDC 566 DPP v Burton [2020] NSW CCA 54 Shortland [2018] NSWCCA 34 R v Hibberd [2009] NSWCCA 20 Ibbs v The Queen (1987) 163 CLR 447 Category: Sentence Parties: Regina (Crown) SIM (Offender) Representation: Counsel: Smith Crown Prosecutor Kluss Counsel for the Offender File Number(s): 2019/00083475 Publication restriction: Section 578A Crimes Act provides a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment 1. The offender, S.I.M. (whose name and the names of others have been anonymised to ensure no breach of s578A of the Crimes Act) appears for sentence having been found guilty by a jury of one count of sexual intercourse without consent in contravention of section 61I of the Crimes Act. 2. The maximum penalty for the offence is 14 years imprisonment and there is a standard non-parole period of seven years imprisonment. 3. The offender was arrested on 15 March 2019 and held in custody from that date until 5 June 2019 a total period of two months and 21 days. 4. Both the Crown and counsel for the offender provided helpful written submissions. The parties were also able to agree a statement of facts. At the sentencing hearing it was conceded by the Crown that it could not be established beyond reasonable doubt that the offending occurred as set out in the agreed facts to the extent that the agreed facts refer to the offenders fingers (plural) being in the victim's vagina. The evidence at trial of the victim was that she was not sure whether there was one finger or more in her vagina and I proceed on the basis that it has been proved beyond reasonable doubt that there was one finger used to penetrate the victim's vagina. 5. There were no matters to be taken into account by way of the form one procedure.