Where a sentencing judge fails to give any consideration to an offender's disordered mental state in assessing the objective seriousness of sexual assault offences, the sentencing discretion miscarries. Neutral medical evidence in sexual assault cases should be presented to the jury with appropriate explanation of why the absence of injury is neutral, but the trial judge must not direct in a way that elevates neutral evidence to support the Crown case. A prior criminal record under s 21A(2)(d) is an aggravating factor only in the limited sense recognised in Johnson and Wickham, and a dated prior offence cannot aggravate the current offence. Fully concurrent sentences for multiple sexual assault offences arising from a single incident may fail to reflect the totality of criminality.
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