When sentencing for an offence under s 66C(4) of the Crimes Act 1900 (NSW), a sentencing judge is entitled and required to have regard to surrounding facts, including whether the complainant was a willing participant, for the purpose of assessing objective seriousness, provided the judge does not find the additional elements (knowledge of lack of consent) that would elevate the offence to one under s 61J. A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be reflected in the non-parole period set; a non-parole period of 77% of the total sentence is inconsistent with such a finding.
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