When sentencing for historical sexual offences under repealed provisions, the sentencing judge must consider the full range of conduct that was proscribed by the provision at the relevant time, not merely the conduct charged. For the now-repealed s 76 of the Crimes Act 1900, which encompassed a very broad range of serious sexual assaults including acts that could not be charged as rape, non-consensual touching of breasts and external genitalia of a person over 16 falls at the lower end of the range of objective gravity. A sentencing judge may not sentence on the basis that other offences were committed without an evidentiary foundation for that finding.
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