Cases of actual penile penetration under s 61I of the Crimes Act 1900 (NSW), whether anal, oral or vaginal, will rarely fall at the low end of the spectrum of objective seriousness. A suspended sentence for such offences requires unusual or exceptional circumstances, and there would need to be a powerful basis for suspending a sentence involving penile penetration where there is no real evidence of remorse. The prospect of deportation under the Migration Act 1958 (Cth) may be a relevant factor in the exercise of the residual discretion in Crown appeals, though the majority did not rely on this factor. The short duration of a sexual assault does not ordinarily reduce its objective seriousness.
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