The distinction between 'unconscious' and 'asleep' in s 61HA(4)(b) of the Crimes Act 1900 (NSW) is artificial; the provision addresses lack of awareness from either state. Whether an offender was in a 'position of authority' for the purposes of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is determined objectively, not by the victim's subjective perception. The s 21A(2)(k) aggravating factor of 'abusing a position of authority' is factually distinct from the s 61J circumstance of aggravation that the victim is 'under the authority' of the offender, and a finding of the former does not breach the De Simoni principle.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.
2 of the 4 citing cases carry a classified treatment. How each court treated it is available to signed-in members.