Serious sexual offenders walking free on community orders

Serious sexual offenders are walking out of court on community sentences in numbers one former magistrate has labelled “disgraceful” amid concerns that judges are banned from imposing stricter control orders because of a sentencing loophole.

Legal experts also expressed disbelief that some rape victims are being refused protection via apprehended violence orders, leaving them vulnerable and fearful.

Statistics obtained exclusively by the Herald from the Bureau of Crime Statistics and Research (BOCSAR) show community correction orders (CCOs), which essentially act as a good behaviour bond, made up nearly 4 per cent of NSW sentences over the four years to March 2026 in cases where the principal umbrella offence was unlawful sexual penetration of an adult. In comparison, a total of 485 offenders were sentenced to full-time custody.

Under 2018 sentencing reforms, the Coalition government banned intensive correction orders (ICO) – the middle ground punishment between full-time custody and a CCO – for serious offences including serious sexual assaults, murder, manslaughter and terrorism, finding they deserved a harsher penalty.

These “custodial” sentences were served in the community with strict monitoring and other potential conditions such as home detention and electronic monitoring.

Some say that change has inadvertently led to judges relying on lenient CCOs to avoid imprisoning sexual offenders.

David Heilpern, Southern Cross University Dean of Law and former magistrate of 22 years, said any person avoiding jail after being convicted of rape at trial is “completely and utterly outrageous” – and the figure of 19 CCOs was “far too high”.

Heilpern said parliament could not have imagined its “zero tolerance” decision to remove ICOs would see some courts resorting to the lower CCOs to avoid imprisoning people.

“It’s disgraceful,” he said.

“A CCO is what you get for a second shoplift or pushing and shoving in a pub.”

Debate over the orders was reignited by the sentencing of Justin Downs last month to a three-year CCO. Downs raped Anastasia Treharne at his house when she withdrew from consensual sex after they connected on a dating app in 2022. He pleaded not guilty and showed no remorse.

Smith also rejected the Crown’s application for an AVO to protect Treharne, citing no “evidence of continuing threat or fear”. Downs walked out of court with no restrictions from contacting Treharne, who told this masthead she felt unsafe.

Downs is not an outlier, Heilpern said. In 2022, Boyd Kramer was sentenced to a two-year CCO after being convicted at trial for raping a woman he met on Tinder. Kramer and the victim engaged in consensual touching that night, but he raped her despite her repeated refusals for sex before and during the meeting. She told him “no” and tried to push him off.

An appeal judge found Kramer’s sentence was “clearly manifestly inadequate”, but refused to increase it, citing his completion of community service work and the negative effect of full prison.

Heilpern thought both cases reflected the victim-blaming “rollercoaster theory” that once someone has begun a rollercoaster ride, or consensual sex, it is too late to stop.

“These decisions send a message that sexual assault victims don’t matter,” he said.

Sexual intercourse without consent carries a seven-year standard non-parole period and maximum imprisonment of 14 years.

Equally shocking to Heilpern was the court’s refusal to enforce an AVO to protect Treharne.

The law states a court must make a final AVO upon a guilty plea or finding for a serious offence regardless of an application being made, unless satisfied that it is not required (for example, because an AVO has already been made).

‘Urgent change is needed.’

Karen Bevan, CEO of Full Stop Australia

“It is incomprehensible,” Heilpern said.

John Sutton, a Law Society NSW accredited criminal law specialist, said removing ICOs created a gap where judges had to choose between full-time imprisonment or a CCO.

“Sexual assault is prima facie serious crime – there’s no doubt about that,” the principal of John Sutton Law said.

“But there are exceptions where an ICO should be an available sentence, because a penalty other than full-time imprisonment should be incurred, but a CCO is not serious enough.”

Sutton was surprised a judge would refuse to enforce an AVO against a sexual offender.

“I cannot, for the life of me, understand any judicial officer not dealing with and not imposing an AVO in circumstances of a sexual assault,” he said.

“The legislation exists to give a statutory level of protection to the victims of serious crimes that involve physical or sexual violence, and it is only right that victims in those circumstances should be protected.”

Professor of law at the University of Wollongong, Julia Quilter, also found it “very worrying” that AVOs would be denied to a sexual assault victim.

“In a circumstance where you have clear evidence from the complainant that they are fearful, concerned, and anxious about that, it seems unusual,” she said.

Quilter explained there were “rare” instances where a serious sexual offence may warrant a CCO, such as when there was a combination of factors including an early appropriate guilty plea, remorse, no criminal record or a victim expressing in their impact statement that they do not want the offender imprisoned.

However, she said that offenders who plead not guilty, endure a full trial, show no remorse and have a prior criminal record (as was the case with Downs) fall well outside the bounds of justifying a CCO.

In Quilter’s view, the BOCSAR figures suggested CCOs were rare for sexual intercourse without consent. She said removing ICOs may have inadvertently forced some judges to impose CCOs, but did not know of research that proved this.

Like Sutton, Quilter thought all sentencing options should be available to judges, including the banned ICOs. All three legal experts were opposed to the idea of mandatory sentencing, citing the danger of removing a judge’s discretion and risks of injustice.

The BOCSAR statistics broadly reflect similar findings. One Judicial Commission of NSW figure stated in Kramer’s case that in the four years to September 2022, a CCO made up 12 of 279 (or 4.3 per cent) of sentences for rape. In a separate District Court case, the Crown noted statistics showing 4.8 per cent of these crimes were dealt with by a CCO.

Treharne launched a change.org petition pushing for imprisonment as the ordinary outcome for sexual assault convictions, “with wholly non-custodial sentences reserved only for truly exceptional circumstances”. It has gained more than 30,000 signatures.

“Thousands of Australians have expressed concern that community-based sentences fail to reflect the gravity of sexual assault and undermine confidence in the justice system,” the petition reads.

CEO of Full Stop Australia Karen Bevan said the legal system responds inadequately to sexual violence, despite improvements in recent decades.

“Urgent change is needed,” Bevan said.

“At every stage, legal system responses to sexual violence don’t meet community expectations and sentencing is one of those.”

Downs has lodged an intention to appeal his conviction with the courts.

Asked if it was considering an appeal, a spokesperson for the NSW Office of the Director of Public Prosecutions (ODPP) said they would consider the sentence imposed in accordance with the prosecution guidelines.

NSW Attorney-General Michael Daley said questions about the 2018 sentencing changes should be directed to the coalition, who are now in opposition.

He said the Labor government was making changes to reduce trauma and boost protections for complainants, including working to establish a specialist hub to help them to testify remotely and abolishing good character laws for sexual offenders.

Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732). Anyone impacted by sexual, domestic, or family violence can also access 24/7, free and confidential trauma-specialist counselling through Full Stop Australia (1800 385 578).

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