Convicted rapists should go to jail. But in NSW, that does not always happen

It is simply unthinkable in this day and age that a man can rape a woman, plead not guilty, go to a full trial, be convicted by a jury, and not be sent to prison.

Yet in at least two cases in recent times that is exactly what has happened. This is not only an affront to societal expectations, but is also directly against the clear voice of parliament. It also means that the legislature may well conclude that the only option is mandatory sentencing.

To understand the context, there are some acronyms requiring decoding. The harshest sentence in NSW is a full-time term of imprisonment. Next, still a prison term but to be served in the community, is an Intensive Correctional Order (ICO). Lower in seriousness is a Community Corrections Order (CCO) which is, in reality, a good behaviour bond. Then there are fines and non-convictions.

The final acronym is an SNPP, which is a Standard Non-Parole Period. This is where parliament has determined a guidepost for sentences to be imposed for “middle range” serious offences. The SNPP for sexual assault is seven years, and for any less, the court must give reasons. The maximum penalty is 14 years.

Parliament has determined that for sexual assault offences, sentencing cannot include an ICO because the crime is too serious for that option. At no point when parliament decided to exclude an ICO would it have expected a court to go one step further down the sentencing ladder – because it simply beggars belief.

Anastasia Treharne met rapist Justin Downs on a dating app in 2022, and after commencing sexual activity, withdrew her consent saying “stop” multiple times, crying and telling him she was in pain, but he continued. He was charged four years ago, convicted by a jury following a trial last year and finally sentenced last week.

Downs had an extensive criminal history including domestic violence, alcohol related offending and breaching court orders. In September 2025, he was sentenced to an ICO for 16 months for a range of other serious offences, including breaching a CCO for domestic violence crimes.

Staggeringly, Judge Justin Smith, SC, decided a three-year CCO was sufficient punishment for his rape. In my experience, a CCO is what you receive for a second shoplifting offence, or a minor assault. This sentence is a slap in the face for the victim, and a failure by the court to follow clear parliamentary intention. Remember, this was a case where Downs put the victim through years of delay, a full trial with cross-examination, and received no discount for acknowledgment of guilt. The judge even declined to make an AVO to protect Anastasia even though there is a legislative presumption upon conviction.

If this was a one-off judicial aberration, then you would hope that this inadequacy would get fixed on appeal. However, the track record for that is not great.

In the case of Boyd Kramer, the victim was raped on December 20, 2020. Kramer had pleaded not guilty, and the victim Madeline Lane was subject to over 1500 questions in cross-examination, it was put to her that she was a “tease” and had made up the allegations for “attention and sympathy”. The jury found him guilty in February 2022. Judge John North, sentenced him to a CCO for two years.

The DPP appealed to the Court of Criminal Appeal, which found that the sentence was “manifestly inadequate”. This means that they found it was blatantly and obviously deficient. However, despite this finding, they failed to change it.

I oppose mandatory sentencing. Exceptional cases do exist, and justice is not served by completely removing discretion. However, who could blame legislators for flirting with this again, after sending a very clear message to the courts with a high maximum penalty, setting a SNPP and removing ICOs as an option?

Here is my message – if you rape someone and plead not guilty, the community expects you will go behind bars if convicted. And to those NSW judges – I’m not sure what century you are living in, but sexual assault is way too serious for a slap on the wrist.

David Heilpern is dean of law at Southern Cross University. He served as a magistrate in NSW for 22 years.

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