An offender's failure to use a condom may be treated as an aggravating factor in sentencing for attempted sexual penetration, not only for completed penetration, as it goes to moral culpability showing recklessness and disregard for the victim's welfare. However, the weight to be given to this factor may differ between attempt and completed offences. Self-induced intoxication does not necessarily operate as a mitigating circumstance; a sentencing judge is entitled to decline to treat it as mitigating where the offender chose to drink and retained capacity to form intent. The prospect of deportation and its speculative consequences (such as loss of a potential relationship with a putative child with whom no relationship has been established) may be too speculative to constitute extra-curial punishment warranting mitigation.
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