DPP v Benn

1. The offender, Justin Isaac Benn, was initially to be sentenced by Loukas-Karlson J. The parties consented, after the sentencing hearing before her Honour, to the matter being reallocated and I am now required to sentence the offender.

2. On 6 June 2024 a jury found the offender guilty of the following offences: (a) Count 1 - SCCAN2023/366: assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), carrying a maximum penalty of imprisonment for 5 years. (b) Count 2 - SCCAN2023/367: sexual intercourse without consent contrary to s 54 of the Crimes Act, carrying a maximum penalty of imprisonment for 12 years.

3. On 14 March 2025 the offender entered a plea of guilty to a further charge (Count 6, CC2022/10131) of sexual intercourse without consent contrary to s 54 of the Crimes Act.

4. In doing so, the offender asked the court to take an additional “rolled up” act of indecency offence, contrary to s 60 of the Crimes Act, which carries a maximum penalty of imprisonment for 7 years, into account when making a sentence related order for Count 6.

5. There are four related offences that were transferred to this court. Consistent with the submissions advanced by the parties I consider it to be in the interests of justice for the following four related offences to be dealt with as part of these proceedings: s 68D(2) of the Supreme Court Act 1993 (ACT). (a) CC2022/10137 – Destroy/damage property contrary to s 116(3) of the Crimes Act, carrying a maximum penalty of imprisonment for 2 years, a fine of $8000 or both. (b) CC2022/10138 – Destroy/damage property contrary to s 116(3) of the Crimes Act, carrying a maximum penalty of imprisonment for 2 years, a fine of $8000 or both. (c) CC2022/10141 – Common assault contrary to s 26(1) of the Crimes Act, carrying a maximum penalty of imprisonment for 2 years. (d) CC2022/10142 – Destroy/damage property contrary to s 116(3) of the Crimes Act, carrying a maximum penalty of imprisonment for 2 years, a fine of $8000 or both.

6. It is useful to record at the outset that the victim of each offence is the ex-wife of the offender.

The proceedings and the facts

7. As the offender was found guilty by a jury of count 1 (CC2023/366) and count 2 (CC2023/367) I must determine the facts consistent with the verdict of the jury; Savvas v The Queen [1995] HCA 29; 183 CLR 1 [8].

8. At the sentencing proceedings that took place on 28 March 2025 before Loukas-Karlsson J the prosecution advised that the parties had agreed as to the facts that could be found to give effect to the jury verdict. Mr Sabharwal, counsel for the offender, confirmed that there was agreement to a set of facts included in the prosecution tender bundle which was marked as exhibit 1.

9. In those circumstances I make the following findings of fact: Count 1 (CC2023/366): Assault occasioning actual bodily harm

10. On 4 January 2017, the offender and the victim were both together at their Rob Riley Circuit house in Bonner.

11. At around 4:30pm that date the victim was in the kitchen putting away the dishes. The offender was angry about something, and an argument commenced. At the time the victim was bent down over the dishwasher facing away from the offender.

12. The offender then shoved the victim in her upper back, causing her to fall over and hit her shin on the dishwasher door. The impact caused pain to her right leg, and the victim sustained a 1cm cut to her right shin with bruising because of the assault. The offender then turned around and continued to make a coffee in the butler’s pantry. That day or the day after the victim took a photograph of the injury.

13. The victim spoke to the offender’s father about his violent behaviour, and together they got the offender to go to the doctors in Gungahlin and start an anger management course. Count 2 (CC2023/367): Sexual intercourse without consent

14. On 11 January 2017 the offender and victim were again together at the Rob Riley Circuit house.

15. Somewhere between 9pm and 10:30pm that date the victim went to bed in her bedroom and fell asleep. She was wearing long flannel pyjama pants, ‘bikini brief’ underpants, and black singlet. The offender did not go to bed with her.

16. At around 3am the victim woke up to find the offender was in the bed under the blankets. He had taken off her pants and underpants and was in between her legs licking her vagina from the back. She was lying on her stomach, with her right leg bent up and her left leg extended down. The offender was licking the outside of her vagina, and his tongue went in between the lips of her vagina and licked her clitoris.

17. The offender continued to lick her vagina for around 10-20 seconds. She was initially confused and thought that it was Mr Jarvis. The victim then rolled over and pushed the offender’s head away and asked ‘what are you doing?’

18. The offender shrugged and replied ‘you are still my wife’, and then sat up on the other side of the bed and walked out of the room. The victim was disgusted.

19. The victim messaged Mr Jarvis over Facebook the following day and told him what had occurred.

20. On 14 January 2017, the offender left the Rob Riley address and drove interstate to reside there until alternative living arrangements could be made. Count 6 (CC2022/10131): Sexual intercourse without consent

21. At the start of 2020, prior to the coronavirus lockdown, the offender and victim were at the Rob Riley house. In the evening the offender and the victim had been drinking. The victim had maybe 3-4 drinks, and the offender had about the same. At around 9pm- 10pm, they went to bed.

22. The victim woke up in the middle of the night. She was lying on her side facing the wall turned away from the offender, and he was lying on his side behind her facing her. When she woke up, she found that the offender had his penis inside her vagina and was having sex with her. She rolled away so that the offender’s penis was removed from her vagina and turned around and said “what the fuck are you doing?”. The offender told her that he was asleep and did not know he was doing it. The victim got out of bed and went to the bathroom and had a shower as she felt disgusting.

23. The victim had previously told the offender that he was not to have sex with her when she was asleep, and she was not okay with it.

24. On 28 January 2021, the victim messaged the offender and told him to look up the definition of family violence. She referred to ‘waking me up of a night time [sic]’, and asked him to ‘google that particular thing’. This was a reference to him committing sexual acts upon her whilst she was asleep. Facts relating to the additional offence to be taken into account (CC2022/10133): act of indecency without consent

25. Throughout 2019 and 2020 the victim and the offender were still residing together at the Bonner house in Rob Riley Circuit. Whilst they were living at that address, there were three separate occasions when the victim woke up and found the offender’s semen on her bottom and in between her legs. The victim was unable to recall the exact dates of these incidents.

26. On the first occasion the victim woke up and found the offender’s semen at the bottom of her ‘butt’ between her legs. The offender was already apologising. He was touching her and touching the semen, and said ‘sorry, I must have had a wet dream’. He had no underwear on.

27. The second time she woke up she could feel something ‘squishy’ between her legs, and initially thought she got her period. When she saw it was semen, she turned around to the offender and confronted him, but he laughed it off and said ‘it’s just another wet dream’. The semen was in the same place, between her legs. On this occasion the victim rolled over in the bed and saw that the offender had underpants on, but his underpants were dry at the front. He appeared awake and normal. That morning the victim spoke to him and said it was disgusting.

28. On the last occasion the victim woke up and was immediately angry. The offender’s semen was all over her. She rolled over and confronted the offender, but he said words to the effect of ‘it’s a wet dream’ and that he ‘couldn’t help it’. The transferred related offences

29. I am satisfied based only on the evidence presented in the trial of the following facts with respect to each of the transferred related offences. It is on the basis of these findings that I shall ‘deal’ with the offences: ss 68D and 68E of the Supreme Court Act. CC2022/10137: Destroy/ damage property

30. Between 1 January 2016 and 31 January 2020, the victim and the offender were arguing in the garage of their home. The offender picked up a garden saw out of a wheelbarrow and threw it at the victim. The victim moved and the saw hit the wall behind her resulting in a hole in the wall. CC2022/10138: Destroy/ damage property

31. Between 1 January 2016 and 31 January 2020, the offender was outside flying a kite with his daughter. The kite broke after which the offender went inside the family home and punched a hole in a wall. CC2022/10141: Common assault

32. On 4 April 2013, the offender was throwing rocks at the victim’s vehicle. The victim exited the house and approached the offender. The offender stood up from where he was sitting, ran at the victim and flipped her over his back causing her to land on the ground. The offender then got on top on the victim, held her down and hit her. CC2022/10142: Destroy/ damage property

33. Between 1 January 2016 and 31 January 2020, the offender and the victim were arguing in the garage of the family home. The offender punched a hole in the wall just above where the victim was standing. Victim impact statement

34. The victim provided a victim impact statement to the court which was read aloud by the prosecutor at the sentencing proceedings. By consent, a redacted version of the statement was provided after the sentencing hearing. I must consider the effect of the offending upon the victim pursuant to s 33(1)(f) of the Crimes (Sentencing) Act 2005 (ACT).

35. The victim detailed the psychological toll that she has suffered because of the violence inflicted upon her by the offender during their relationship. She described living with a “relentless cycle of fear, violence, and coercive control” perpetrated by the offender. She said she felt embarrassment, hopelessness, and worthlessness because of his actions. The victim explained that her financial dependence on the offender “made leaving the situation even more difficult”. In 2017, the victim tried to leave the offender, however, gave up because the offender had “made it so hard to leave him” and so she returned to live with him. On another occasion when the victim left the relationship, she was homeless with her two children for a period of six months. She also described the adverse effects of the offender’s conduct on their children.

36. The statement recorded the extensive negative influence of the offending on her mental health which included complex post-traumatic stress disorder (PTSD) and difficulty sleeping. For the past 4 years, the victim has engaged in trauma counselling to address some of these challenges.

37. The victim captured the major breach of trust involved in the offending and described how this breach occurred when she was at her most vulnerable, being asleep when the offender committed several offences against her. She highlighted the sense of entitlement that the offender demonstrated by engaging in sexual acts with her against her will.

38. In DPP v Howe [2024] ACTSC 178 at [36] I made observations which equally apply in this matter: Victim impact statements provide an opportunity for victims to directly participate in sentencing proceedings, using their own voice to describe the impact upon them of the offending perpetrated against them. These statements assist the Court to truly understand the nature and extent of the impact of the offending upon a victim. The victim impact statement in this matter provided a powerful account of the insidious effect that the use of violence in an intimate relationship can have. Recognising the harm done to the victim is an important sentencing consideration. Sentencing considerations Nature and circumstances of the offending

39. The maximum penalties that apply in this matter reflect the community’s intolerance for sexual and violent offending. I must consider the objective seriousness of the offending and where it sits on the spectrum of conduct establishing the offence. As McCallum CJ observed in DPP v Moala (No 3) [2023] ACTSC 306 (Moala) at [22] it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range” and I have approached this aspect of the task by identifying the features of the offence which inform its objective seriousness.

40. In R v Miller [2019] ACTCA 25 at [29] the Court of Appeal stated: Sexual penetration for the purposes of the offence of sexual intercourse without consent may take different forms, but there is no presumption that any one form is more or less serious than another: Ibbs v The Queen (1987) 163 CLR 447 at 452. In particular, digital penetration is not to be generally regarded as less serious than penile sexual intercourse: R v Hibberd [2009] NSWCCA 20; A Crim R 1 at [21].

41. As Baker J observed in DPP v Umunakwe (No 2) [2025] ACTSC 139 at [59] “considerable care” may be necessary with respect to several factors identified in R v Palmer [2017] ACTSC 357 at [22] as being relevant to an assessment of objective seriousness. As her Honour observed the presence of some of the factors identified in Palmer could give rise to offences which carry higher maximum penalties than the present offences and “offending is not less serious because of an absence” of aggravating features.

42. Like Baker J at [61], I consider it useful to recall the observation of McCallum CJ in DPP v Earle [2023] ACTSC 93, that a broad range of conduct is captured by s 54 including predatory and humiliating acts of forced penetration and “fleeting, impulsive acts undertaken without regard to whether there is consent from the victim”: Earle at [23].

43. Common to each of the sexual intercourse without consent offences in this instance is the ‘use’ of the victim’s body by the offender at a time when she was vulnerable because she was asleep, when she was in her own home and when there was a relationship of trust between them. The offending has an air of predation about it in the sense that it was audacious conduct: see R v Goboly [2016] ACTSC 322 at [40]-[46]. The conduct reflected a sense of entitlement on the offender’s part to ‘access’ the victim’s body for his own sexual gratification at times when I am satisfied that he knew that she could not consent. Count 1: Assault occasioning actual bodily harm, 4 January 2017

44. This offending occurred in the victim’s home. The victim was bent over and faced away from the offender. The push to the victim was sufficiently forceful to cause her to fall over. The conduct was not protracted and involved momentary interference with the victim’s bodily autonomy. The nature of the injury is a significant consideration. In this instance the injury sustained was a small cut to the victim’s shin and some bruising. While not an especially serious or extensive injury it would have caused pain and discomfort. Count 2: Sexual intercourse without consent, 11 January 2017

45. The offending commenced while the victim was asleep. The offender removed the victims’ pants and underwear to facilitate the assault. It is not known how long the offender engaged in the act prior to the victim waking up. The offender engaged in the act for 10-20 seconds once the victim became conscious and ceased when the victim pushed his head away. The victim was in her bedroom at the time of the offending, a place she was entitled to feel safe. The victim did not suffer physical injury because of the offence. The offender knowingly engaged in the conduct while the victim was vulnerable to such conduct because she was asleep. Count 6: Sexual intercourse without consent, between 1 January 2020 and 1 April 2020

46. The victim woke up to the offender’s penis inside of her vagina. By rolling away from the offender she caused the conduct to end. The offending lasted for a short period.

47. The victim was in her own home. She was not physically injured as a result of the offence. I do not accept the offender’s explanation that he was asleep and unaware he was engaging in the conduct. I am satisfied beyond reasonable doubt that the offender made a deliberate decision to engage in the act when the victim was unable to indicate her consent.

48. I am to take into account when sentencing the offender for this offence a “rolled up” act of indecency without consent offence which occurred between 1 January 2019 and 31 December 2020. The conduct for this offence consisted of several occasions where the offender engaged sexually with the victim for his own gratification in circumstances where she was asleep in their home and which were humiliating and degrading: see R v Teel (a pseudonym) [2021] ACTSC 183 per Burns J at [46]. The offence “rolled up” three separate acts each sufficient to establish the offence making it a more serious example of the offence than if only one act was relied upon: R v Hancock [2021] ACTSC 52 at [28]. CC2022/10137: Destroy/ damage property, between 1 January 2016 and 31 January 2020

49. The offending occurred in the context of an argument and was a reckless act designed to frighten and intimidate the victim. The damage cause was not extensive. The conduct occurred in their home. CC2022/10138: Destroy/ damage property, between 1 January 2016 and 31 January 2020

50. The offending occurred after the offender became angry and frustrated. The damage caused was not extensive. The conduct was deliberate occurred in their home. CC2022/10141: Common assault, 4 April 2013

51. The offender “spear tackled” the victim, held her down on the ground and hit her in the yard of their home. This act demonstrated the offender’s capacity to physically control and dominate the victim. It involved a significant degree of physical contact and force. The conduct was deliberate. CC2022/10142: Destroy/ damage property, between 1 January 2013 and 31 December 2016

52. The offending took place in the context of an argument between the offender and the victim at their home. In that context it was conduct designed to frighten and intimidate the victim. The damage caused was not extensive. Subjective circumstances

53. The material before the court included an Intensive Correction Order Assessment Report (ICOAR) dated 24 March 2025, numerous character references and a letter from Dr Swara Jain. Intensive Corrections Order Report Assessment

54. The ICOAR recorded that the offender is one of three children. He experienced a positive and happy upbringing. The offender reported no instances of domestic violence, problematic alcohol consumption or illicit substance abuse issues. The offender noted that his family relationships became strained throughout his marriage to the victim, stating that the victim required him choose between a relationship with her or with his family. He noted that his family continued to support him stating to the report author that his family “know he did not commit the current listed offences”.

55. The offender is 45 years of age. The offender met the victim in March 2010 and they were married in November 2011. They have two daughters together. The offender told the report author that the relationship was initially good, but that the victim started to become angry and violent towards him. He stated that she committed domestic violence offences against him throughout the course of their relationship. The offender expressed the opinion that the victim fabricated the charges to get “full custody” of their two daughters.

56. The report author put to the offender the outcome of a [redacted] investigation which found that he had engaged in family violence toward the victim. The offender told the report author that the matter subject to that investigation was the only time he had engaged in family violence and that the victim was the main perpetrator. When asked why he never reported or disclosed the abuse the offender could not provide a reason.

57. The offender is currently in a relationship and met his current partner in May 2024. He described the relationship as supportive and pro-social. He stated that his partner is aware of the charges and knows that he did not commit the offences. The offender’s mother was also interviewed and echoed the sentiments expressed by the offender. She stated that it was the offender who was the victim of ongoing verbal abuse from the victim and that she does not believe he committed the offences.

58. The offender completed year 12 and described high school as a positive experience, noting he had a good group of friends and did well academically. The offender was employed as a public servant between 2005 and June 2024. He reported that his employment had been in high stress roles. When he was remanded in custody the offender was approved for 12 months leave with no pay. At the expiration of the 12 months the offender’s employment was terminated.

59. The report author recorded an apparent inconsistency in this account noting that at the time of the interview the offender had been remanded for less than 12 months. The offender planned to recommence employment when released into the community, advising the report author that he has been offered employment by friends upon his release.

60. The offender has not received any social support payments and has approximately $25, 000 in savings which he planned to use in his transition to the community. The offender reported that all his friends and associates are pro-social. He reported that over the course of his marriage to the victim regular cannabis use was normal and he was smoking approximately 3.5 grams weekly. He also reported smoking cannabis multiple times in the lead up to his jury trial in 2024. Despite this he was confident that he could abstain from its use if required as part of a sentencing order.

61. The offender was recorded to have led a pro-social life prior to his incarceration, playing organised sport and being part of a social motorcycle club. He advised of his intention to reengage with social groups and friends when released back into the community.

62. The offender reported a serious back injury that led to chronic pain, and he advised that he had previously engaged with an orthopaedic specialist for treatment. The offender reported no mental health diagnoses but acknowledged that he had experienced stress and poor anger management in the past. He engaged with Everyman Australia for a 12-month period in 2021. In 2014 the offender was recorded as having self-referred to mental health services following an argument with his partner, recent job loss and expressions of suicidal ideation. After multiple ‘contacts’ no risks were identified, and his file was closed.

63. The offender proposed to the author of the report that he would reside with his brother upon release into the community. The home was assessed on 24 March 2025 as suitable. The co-residents consented to the offender residing at the property. Two children, aged 7 and 8 also reside at the property. The co-residents expressed no concern about the offender’s history with [redacted] or in relation to domestic and family violence.

64. The offender denied any wrongdoing to the author of the ICOAR. He advised that all the information in the case statement was dishonest and that the offending did not take place. The offender explained to the author that the sexual offending took place in the context of him fulfilling the victim’s sexual desires. He advised that he did not have the financial means to appeal the findings of guilt.

65. The offender advised he would be willing to engage in a sexual offence specific program to help him gain a clearer understanding of consent and reduce his risk of reoffending. He reiterated his belief that the victim had fabricated the charges to gain full custody of their daughters. He refused to discuss the impact of his offending on the victim because the offending did not occur.

66. The victim’s views were sought as a part of the report. She reported that she held concerns about the ongoing need for her to be protected from violence or harassment from the offender.

67. The offender was assessed as suitable for an Intensive Correction Order (ICO). The offender was assessed to be at a low risk of reoffending and at a below average risk of sexual re-offending. He was assessed as suitable for specialist behaviour change programs for men who are violent and sexual offence specific programs. The offender was also assessed as suitable for community service work. Character references and other material

68. Twelve character references were tendered on the offender’s behalf. The references were variously authored by former-colleagues, friends and family members of the offender’s including his former wife. Not all references made clear the author’s knowledge as to the nature of the charges for which the offender must be sentenced. It can generally be observed that several references referred to the offender’s love for his children, his ‘gentle nature’ and his good character.

69. The references from the offender’s former colleagues including Ms Catherine Sloan, Mr Adam Farrow, Ms Bridget Carrick and Ms Chloe Stoddart commended his work ethic, leadership, and trustworthiness. Those referees were careful to record that they were not expressing a view on behalf of the government departments where they were employed with the offender.

70. Ms Sloan recorded that it was “apparent” to her that the offender was in a “difficult” relationship with the victim. Ms Sloan described occasions in the workplace when she overheard the victim “loudly questioning” the offender on some of the “never ending” phone calls she considered were made to the offender by the victim. Ms Sloan noted that the offender had “numerous days off to care for both [the victim] and/or the children”. Mr Farrow referred to the “[the victim’s] abuse” of the offender as well as the offender’s need to do “school drop off and pick up as it made things easier with his wife”. Mr Farrow stated that the offender told him that the victim did not want him to “go to work” so he could “help” with the children. Mr Farrow noted that as a result of the offender’s “absenteeism” his career was in “jeopardy”.

71. Mr Lawrence Kirk, a friend of the offender through his involvement with the Canberra City Cricket Club, was careful to set out that his reference was not as an “endorsement” by the club but rather was identified to give context to his association with and observations of the offender. It is in that context that Mr Kirk described the offender’s “outstanding” sportsmanship, self-discipline, “commendable behaviour” and team spirit.

72. The offender’s wife of two years (2004-2006), Ms Tracey Elliot, described their relationship in glowing terms. She stated that the offender was “always a very loving and respectful partner” and that extended to their sexual relationship. She described maintaining connection with the offender after the end of their marriage and characterised the period of the offender’s relationship with the victim as the lowest and saddest that she has ever observed him. The offender’s ex-wife observed that he had “never said a bad word” to her about the victim despite his heart break at not being able to see his children. She described the offender as being “by nature” gentle and “a protector and peacekeeper, who has never once displayed violent behaviours or ‘fits of rage’ toward or around” her.

73. The offender’s aunt Ms Marianne Benn-Clibborn described his relationship with the victim as “unhappy and tumultuous” and recorded her belief that the offender’s “true character and integrity is not reflected in the behaviour of which he has been accused”.

74. The offender’s sister-in-law, Ms Amanda Benn, identified at the outset of her reference that she is a “high level” Australian Public Servant as well as the Deputy Chair of the ACT Domestic Violence Crisis Service (DVCS). It was not clear whether Ms Benn’s reference was provided with the imprimatur of DVCS.

75. Ms Benn recorded that she is “well aware” of the charges for sentence before this Court. Ms Benn observed that the offender is often referred to as a “gentle giant” which she stated has “at times been used against him as he has been an easy target to those who would take advantage of his generosity and caring nature”. Ms Benn stated the offender’s “physical size bears no comparison to his soft soul”. Ms Benn expressed the view that the offender has at times been “unaware or less cautious of less trustworthy people because it doesn’t cross his mind that people could behave so questionably”. Ms Benn described the offender as having “consistently demonstrated empathy and caring” and recorded that he missed his own children “deeply”. Ms Benn concluded by expressing her firm belief that the offender has the capacity to “positively contribute to society again”.

76. The references included confirmation that upon his release the offender has several avenues for full time employment that will be immediately available through ‘Maintenance and Mulch by Moz’, ‘Just in time’ Concrete, Coring and Cutting or Gungahlin Concrete Services.

77. A letter from Dr Jain noted that the offender has a diagnosis of widespread chronic plaque psoriasis. The letter recorded that the offender’s condition has been worsening over the past 3 years with no reported triggers apart from stress stemming from work. The condition requires ongoing treatment including with prescription medication.

78. Further material was provided by the offender’s solicitor with the consent of the prosecution on 21 May 2025. The material included a letter from Everyman dated 3 April 2025, a prison classification review and a certificate of achievement for completing the Healthy Relationships Program dated 30 July 2024. The letter from Everyman detailed that the offender attended the Working With the Man program on 30 occasions from 16 June 2021 to 18 April 2023. The prison classification letter stated that the offender is subject to a ‘minimum’ security classification.

79. The offender’s failure to demonstrate any remorse for his conduct, a matter to which I will turn, was consistent with what I considered to be obvious and careful attempts to ‘victim blame’ in some of the redacted character references. Such was the strength of that impression from those references that I feel obliged to address it for two reasons. First, to confirm, as was submitted by the prosecutor at the sentencing hearing, that I have disregarded any suggestion that the victim bears some responsibility for the offences perpetrated against her by the offender. Such a suggestion is absurd and offends rational thought.

80. Secondly, to identify that the sense of victim blaming in some of the references is consistent with the concern the author of the ICOAR expressed when she recorded that “this service holds concerns that Mr Benn will struggle to take full responsibility for his offending behaviour if his family continue to blame ‘the system’ and the victim of the offences for his convictions”.

81. The inclusion of observations intended to undermine the victim in some of the character references was troubling, as it seemed to me that they only served to encourage the offender’s mindset which limits his capacity to be accountable and in turn to achieve some level of remorse. Those character references appeared ignorant, wilfully or otherwise, of the significance of the jury verdicts and the entry of a guilty plea by the offender.

82. Some of the content in the references from the offender’s former public servant colleagues, for example, appeared desirous of demonstrating that the offender’s performance of ordinary tasks that accompany parenthood and his “difficult” marriage, were responsible for his lack of career progression and caused solely by the victim. None of the professional referees recorded ever meeting or interacting directly with the victim. Some of the references from family members, by undermining the victim’s character or highlighting the offender’s vulnerability to manipulation, clearly sought to lend support to the offender’s claim that the victim has successfully manipulated the criminal justice system. This was absent any acknowledgment of the process which has attended to the offender now coming before the court to be sentenced.

83. I record here, lest there be any confusion, that the victim’s version of events with respect to counts 1 and 2 was accepted by the jury beyond reasonable doubt. It should be understood that in coming to find the offender guilty of those offences, the jury were required to consider the evidence he gave denying count 1 and explaining the circumstances of count 2, as well as his evidence about any motivation the victim had for making the allegations. By their finding the jury necessarily rejected the offender’s evidence in relation to counts 1 and 2. Having read the transcript of his evidence some of the conduct he accepted that he engaged in during his relationship with the victim stands in contrast with observations made by some of the referees as to the offender’s nature.

84. After the jury verdicts, the offender entered a plea of guilty to another sexual offence involving the victim. The offender is to be sentenced arising out of the process which routinely attends to the conduct of criminal proceedings. This Court, as part of these proceedings, is not charged with any responsibility for determining the living or access arrangements for the children that the offender and the victim share.

85. Whilst I would hope it unnecessary to state, I am compelled to record that any conduct engaged in by the victim, which may have contributed to the “difficult” relationship the offender was observed by some to share with her, cannot justify or excuse the conduct the offender subjected her to and for which he now stands to be sentenced. It is uncontroversial to observe that the nature of family violence is such that it is often deliberately perpetrated in circumstances which reduce the possibility of detection. It is therefore regularly the case that a perpetrator has not revealed that aspect of their character to people in their lives who love and respect them. Whilst naturally this can result in surprise when the conduct is exposed, the fact that others have not themselves witnessed or experienced it from the perpetrator, does not undermine the fact of its occurrence or the extent of its effect. A modern understanding of family violence includes an appreciation that a victim’s experience of a family violence perpetrator can be quite different to the experience of the perpetrator by other people around them. The two realties need not be mutually exclusive.

86. Of course, the content in the character references about which I have expressed concern is not a matter I have considered in coming to determine the just and appropriate outcome. I have addressed it because the material formed part of the information tendered on the offender’s behalf and because I considered it necessary to clarify the relevance of it in the circumstances of this matter.

87. I have taken into account that the refences collectively demonstrated that the offender is held in high regard by people from various aspects of his life; people he has worked with, people who love him and people he has socialised with. He has a long history of stable employment, real prospects for employment upon his release and he has not demonstrated any capacity for physical or sexual violence to any referee. The offender loves his children and has suffered emotionally arising from his loss of contact with them. The offender has not had any conduct issues while he has been incarcerated and he has taken opportunities to engage in further education. Responsibility, remorse and rehabilitation

88. There has been no factor identified which might bear upon the offender’s moral culpability or which would otherwise reduce his level of responsibility for the offending. I am satisfied that the offender engaged in the conduct deliberately and in relation to count 6, after he had been specifically and explicitly warned by the victim as to her lack of consent for sexual activity forced upon her while she was sleeping. The victim’s warning encapsulated a basic tenet of the foundation for any respectful sexual relationship. The offender bears a high degree of responsibility for the offending.

89. Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. A remorseful offender is more likely to have insight into their conduct and some desire to reform. Rehabilitation, in turn, is the best guarantor of community safety if it can be achieved and is in both the offender’s and the community’s best interests: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].

90. It was accepted by his counsel that the offender cannot point to any demonstration or expression of remorse. This is consistent with observations made by the author of the ICOAR. Notwithstanding that the offender entered a plea of guilty to count 6, he refused to discuss the impact of his offending on the victim.

91. The offender did, however, tell the author of the report that he would be willing to engage in sexual offence specific programs to help him gain a clearer understanding of consent. A curious position for him to adopt in circumstances where he had insisted that any need he might have as to clarity with respect to consent in sexual interactions has not been productive of any offending conduct. The author noted the inconsistency in his position.

92. In any event, the offender was assessed as a below average risk of sexual re-offending. The offender has completed an EveryMan program and a Healthy Relationships Australia program whilst he has been in custody. The offender’s willingness to undertake such programs in the circumstance cannot be said to reflect genuine insight into the conduct for which he must be sentenced. The offender is unwilling or unable to confront his conduct.

93. There can be “rehabilitation without confession” (see Alseedi v R [2009] NSWCCA 185 at [65] per Giles JA (with whom Hidden J and McCallum J (as her Honour then was) agreed). This might be especially so in circumstances where an offender has made demonstrated progress toward rehabilitation despite an absence of remorse. In Alseedi Giles JA observed that “offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt”: see also Sigalla v R [2021] NSWCCA 22; 357 FLR 148 at [142]-[147].

94. The offender has engaged in educational opportunities while incarcerated, which I accept reflects a desire to use his time meaningfully in anticipation of his release into the community. Additionally, the offender has a supportive family and social network, as well as the opportunity for employment and accommodation. His prospects of rehabilitation are not complicated by any issue with alcohol, substance misuse or mental ill health. I accept that the offender is not harbouring a desire to continue a romantic relationship with the victim, and he considers the relationship to be over. [Redacted].

95. An assessment of offender’s prospects of rehabilitation is not necessarily straight forward.

96. On the one hand, the offender has no remorse or meaningful insight into his offending or its effect on the victim. It is not just that there is an absence of insight into the offending. The offender holds the firm view that the victim has successfully manipulated and misled the criminal justice system to give effect to her desire to see him denied contact with their children. This mindset seemingly ignored the significance of jury verdict and his own plea of guilty. It was also a mindset inconsistent with some of the evidence the offender gave in the trial with respect to, for example, conduct he did engage in [redacted].

97. On the other hand, the offender has engaged in further education and he presents with strong protective factors. The offences occurred some years ago. I acknowledge his risk of reoffending is low. The offender successfully complied with the terms of the non-conviction order imposed upon him in October 2020.

98. I also acknowledge that the revocation of bail which occurred in the face of the jury verdicts served to underscore the significance of those findings. Further, by virtue of the offender’s engagement with the criminal justice system, in circumstances where he has a limited criminal history, I accept that the offender has come to appreciate the gravity of sexual offending, notwithstanding his refusal to acknowledge his own conduct. These are matters which I am satisfied have had some deterrent effect.

99. The offender’s lack of remorse and insight in the circumstances whilst a cause for concern, does not operate to extinguish his capacity for reform. There is no basis to conclude that the offender presents a risk generally to the community, but I am cautious as to the effect upon any future partners of the attitude of entitlement which I am satisfied underpinned all his conduct toward the victim. An attitude that cannot be confronted because of his narrative.

100. Overall and despite the hesitation I have expressed, I am ultimately persuaded that the offender has good prospects of rehabilitation generally but not to the extent that a consideration of it should overwhelm or predominate the sentencing task. Criminal History

101. As I have already recorded the offender has a limited criminal history consisting of two family violence offences committed on 13 October 2020, namely a common assault and a damage property. Those offences involved the same victim.

102. The common assault offence was the subject of a non-conviction order pursuant to s 17 of the Crimes Sentencing Act which required the offender to be of good behaviour and accept supervision from ACT Corrective Services for a period of 12 months. The damage property offence was recorded as “proved and dismissed”.

103. All the offences now for sentence, except the additional act of indecency offence I am take into account for count 6 (the date range for which ends on 31 December 2020), occurred before October 2020. Time in Custody

104. The offender has been in custody in relation to these offences since 6 June 2024. The sentence I impose will be backdated accordingly. The guilty plea

105. On 14 March 2025 the offender entered a plea of guilty to count six. At the sentencing hearing the parties confirmed that although the offender was arraigned on 14 March 2025, they had agreed a resolution approximately a week before a re-trial was to commence.

106. At the sentencing hearing the prosecutor conceded that the plea of guilty to count 6 had some utilitarian value. It was accurately submitted that the utilitarian value of the plea fell to be assessed in the context of the retrial where the victim had already given evidence in the first trial and been subject to cross-examination. The prosecutor accepted the proposition from Loukas-Karlson J that there was still utility in the plea, it having spared the victim from the anxiety and stress that would have arisen from the re-trial as well as spared the court and the community the expense of it.

107. In my view a reduction in the sentence to be imposed on count 6 of 15% is appropriate in all the circumstances. Sentencing practice

108. The prosecutor provided a table of comparable sentencing outcomes. A consideration of sentencing practice assists to achieve consistent application of relevant principles not mathematical equivalence in sentencing outcome: Hili v R [2010] HCA 45; 242 CLR 520 at [48] – [49].

109. The matters I was taken to included DPP v Ware [2024] ACTSC 52, Jones (No 2) [2023] ACTSC 99, R v Aroub [2017] ACTSC 187, R v Ali (No 4) [2020] ACTSC 350, R v Buda- Kaa [2013] ACTCA 46, R v Ballantyne (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2024), R v MT [2014] ACTSC 162, R v Taylor [2025] ACTSC 43, R v Wyper (No 2) [2017] ACTSC 103, R v Finau (No 2) [2020] ACTSC 193, R v Kindl [2015] ACTSC 128, R v Hope [2021] ACTSC 101, R v UG [2018] ACTCA 16, R v Kelly [2020] ACTSC 292, DDP v Rue [2023] ACTSC 270, DPP v RR [2024] ACTSC 279, DPP v Williams [2024] ACTSC 283, DPP v Earle [2023] ACTSC 93 and DPP v Sarmiento [2023] ACTSC 92.

110. I have carefully considered the sentences imposed in those matters and the circumstances which attended to the offending and the offender in each case. The cases demonstrate the possible range of sentences available but do not define or cap the upper or lower ranges of a sentence. There are considerations in some of those cases which might distinguish this matter including the presence of genuine remorse, an honest though unreasonable belief as to consent and a reduction in moral culpability.

111. In DPP v Ierfone [2025] ACTSC 60 at [61]-[65] I considered a sample of sentencing outcomes for sexual intercourse without consent offences where alternatives to full-time imprisonment had been imposed. I have had regard to that analysis and the circumstances which attended to those matters. Determination

112. The purposes of sentencing are clearly set out at s 7 of the Crimes Sentencing Act.

113. In Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [114] the Court of Appeal endorsed the following “unifying principles”: (a) Sexual offences are regarded as objective seriously offences by the courts; (b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence; (c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.

114. Consistent with those principles the majority of the Court of Appeal in R v Miller [2019] ACTCA 25 stated at [44]: The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.

115. Sexual offending by its nature represents an acutely intimate type of violation. The right to determine how and when to engage in sexual activity with another person is fundamental to the human experience. It need hardly be said that the community rightly expects sentencing courts to make clear their condemnation of conduct which infringes that right.

116. Each offence was an offence of family violence. The prosecution submitted that s 34B of the Crimes Sentencing Act applied. Section 34B came into effect on 12 August 2021 by virtue of the Crimes Legislation Amendment Bill 2021(ACT), after the commission of the offences. There was no question raised as to whether s 34B applied (cf R v Smith (No 2) [2022] ACTSC 246 at [104]) explained perhaps by Loukas-Karlsson J recognising in Smith No 2 at [107] that it is “something of a moot point, as courts have recognised over time the same matters as the matters set out by the legislation” and that the application of s 34B does not justify the imposition of a more severe penalty. I have already referred to those features of the offending to which s 34B directs attention. Additionally, I have also considered the relevant matters set out in the preamble of the Family Violence Act 2016 (ACT).

117. The effects of family violence extend beyond the immediate impact of violence committed in that context. As the victim impact statement in this matter carefully revealed the consequences of its presence in a relationship can contaminate many aspects of a victim’s life well beyond the period over which it was perpetrated. The pervasive and substantial effects of family violence on individuals and families instructs both the community’s abhorrence of it and the need for sentencing courts to unequivocally denounce it.

118. The victim in this matter was entitled to expect that the offender, as her intimate partner, would have regard to the fundamental principle of free and voluntary consent in their sexual interactions. She was similarly entitled to expect that she would be safe from unpredictable and harmful violence in his presence. Those expectations are consistent with the kind of basic decency which underpins any relationship. The offender failed on both fronts, and he must be held accountable.

119. The sentence imposed in this instance must give effect to general and personal deterrence, denunciation, punishment as well as recognise the harm done to the victim. The offender’s capacity for rehabilitation is also a consideration but not to the extent that it should undermine or overwhelm those other compelling purposes of sentencing.

120. Counsel for the offender conceded that for counts 2 and 6, the sexual intercourse without consent offences, the only appropriate outcome was a period of imprisonment: s 10 Crimes (Sentencing) Act. A submission was advanced for the offender that an ICO which included “a relatively modest” community service requirement “would be an appropriate disposal of his sexual intercourse matter and the scheduled matter”. It was further suggested that the period the offender had already served in pre-sentence custody could be reflected in the sentence imposed on count 2.

121. The effect of the submission, noting the constraints around the making of an ICO with other sentencing orders, was the release of the offender into the community after just over 12 months in custody. It is my view that in the circumstances of this case such an outcome would be unduly lenient. Neither the making of an ICO nor a partially suspended sentence would adequately comprehend the gravity of the sexual offending in this instance.

122. I am sentencing the offender for multiple offences which requires the application of the totality principle. I have had regard to the principles in relation to accumulation and concurrence as set out by the Court of Appeal in Dawson v The Queen [2019] ACTCA 9 at [37] and I kept in mind the need to avoid the appearance that multiple offending results in a discount. The offences were committed on separate occasions and involved the same victim. A sentence imposed for one offence cannot entirely comprehend the criminality of the other offence. I consider a degree of accumulation is necessary to recognise the separate nature of the offences.

123. The sentence I impose will require a non-parole period to be set. The non-parole period is the period that justice requires the offender serve in custody. This is the minimum period of actual incarceration having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, and the offender’s prospect of rehabilitation: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57].

124. It was conceded that the outcome of counts 2 and 6 limits the approach that might be taken with respect to the other offences. I am satisfied that count 1 and the transferred common assault offence are matters where the only appropriate outcome is a sentence of imprisonment that will be imposed concurrently with the sentence imposed for counts 2 and 6. The transferred damage property offences can be dealt with by the imposition of a fine with no time allowed to pay.

125. The starting point for count 6 is 3 years and 4 months of imprisonment reduced to 2 years and 10 months of imprisonment in recognition of the plea of guilty. Orders

126. For those reasons I make the following orders: (a) On count 1 (SCCAN2023/366), assault occasioning actual bodily harm, the offender is convicted and sentenced to 2 months of imprisonment to start on 6 June 2024 and end on 5 August 2024. (b) On count 2 (SCCAN2023/367), sexual intercourse without consent, the offender is convicted and sentenced to 2 years of imprisonment to start on 6 June 2024 and end on 5 June 2026. (c) On count 6 (CC2022/10131), sexual intercourse without consent, the offender is convicted and sentenced to 2 years and 10 months of imprisonment to start on 6 June 2025 and end on 5 April 2028. (d) On transferred charge (CC2022/10137), destroy/ damage property, the offender is convicted and find $800 and allowed no time to pay. (e) On transferred charge (CC2022/10138), destroy/damage property the offender is convicted and fined $800 and allowed no time to pay. (f) On transferred charge (CC2022/10141), common assault, the offender is convicted and sentenced to 1 month of imprisonment. To start on 6 June 2025 and end on 5 July 2025. (g) On transferred charge (CC2022/10142), destroy/damage property, the offender is convicted and fined $800 and allowed no time to pay.

127. The total period of imprisonment imposed is 3 years and 10 months. The non-parole period starts on 6 June 2024 and ends on 5 November 2026.

128. Pursuant to s 67 of the Crimes Sentencing Act, I recommend that the offender be required to complete a sexual offence specific treatment program and a specialist behavioural change program for men who use violence.

I certify that the preceding one-hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: N Dwyer Date: 27/06/2025