Recklessness as to consent does not preclude a finding of objective seriousness above the midrange for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW); the assessment is evaluative and impressionistic, having regard to all circumstances of the offending, not only the offender's state of mind. Where an offender does not give evidence on sentence, it will rarely be open to complain of a failure by the sentencing judge to make favourable findings on remorse, risk of reoffending or prospects of rehabilitation. JIRS statistics may be unreliable where the filters exclude relevant comparable cases decided by the NSWCCA.
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