The expression 'at the time of' in s 61JA(1)(c)(i) of the Crimes Act 1900 (NSW) refers precisely to the period during which sexual intercourse (penetration) is occurring, as distinct from 'immediately before or after'. The section does not require that the person who inflicts actual bodily harm be the offender charged. Where an offender's participation in sexual assault in company is largely the product of weakness and coercion by a co-offender rather than predatory conduct, the objective seriousness falls well below mid-range and sentences should reflect this, even though the defence of duress has failed.
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