A non-custodial sentence for an offence under s 66A of the Crimes Act 1900 (NSW) (sexual intercourse with a child under 10) is manifestly inadequate absent wholly exceptional circumstances, given the maximum penalty of life imprisonment and the 15-year SNPP. The absence of sexual motivation is a relevant mitigating factor but cannot reduce the objective gravity to the very lowest level. The COVID-19 pandemic, combined with a respondent's advanced age and respiratory vulnerability, may justify the exercise of the residual discretion not to re-sentence on a Crown appeal, even where the sentence is clearly inadequate. Sentencing courts must obtain mandatory assessment reports under ss 17D(4) and 89(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) before imposing community service work conditions.
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