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[2026] ACTSC 114
Supreme Court of the ACT
2026-04-29
Kelly AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Cohen Citation: [2026] ACTSC 114 Hearing Date: 31 March 2026 Decision Date: 29 April 2026 Before: Kelly AJ Decision: (1) On the charge of sexual intercourse without consent (CAN 9984/2023), I record a conviction and you are sentence to two years’ imprisonment commencing 29 April 2026 and expiring 28 April 2028. (2) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the sentence is to be served by intensive correction in the community, with the core conditions contained in s 42 of the Crimes (Sentencing Administration) Act 2005 (ACT).
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – where the offender was reckless as to whether the victim was consenting Legislation Cited: Crimes Act 1900 (ACT), s 54(1) Crimes (Sentencing) Act 2005 (ACT), s 11 Crimes (Sentencing Administration) Act 2005 (ACT), s 42 Cases Cited: DPP v Earle [2023] ACTSC 93 DPP v Gottaas-Hughes [2023] ACTSC 85 DPP v Williams [2024] ACTSC 23 Parties: ACT Director of Public Prosecutions Lachlan John Cohen (Offender) Representation: Counsel M Howe (DPP) S Hall SC with J Maher (Offender) Solicitors ACT Director of Public Prosecutions Armstrong Legal (Offender) File Number: SCC 117 of 2024 KELLY AJ: Introduction
Background
The background on which you are to be sentenced is as follows.
You and the victim were both 18 years old at the time of the offending. You had been friends since high school. You, the victim and your friend had been together drinking in the city on the night of 28 July 2016. The victim did not want to go back to her parent’s house that night due to her level of intoxication, particularly in light of her mother’s concern about her current level of drinking at that time. So the three of you went back to the friend’s house to stay for the night.
The victim was very intoxicated and needed assistance to get out of the taxi. Once inside the friend’s residence, the victim vomited several times in the bathroom. You comforted her.
You and the victim both slept in the same bed. Early in the morning of 29 July 2016, the victim awoke to the feeling of pressure in her vagina which she noticed was wet. You were digitally penetrating her vagina with two fingers. It is not possible to say how long penetration continued as the victim was only conscious for a couple of minutes before passing out again or falling asleep. She believes that at that time she was still intoxicated.
In a record of interview with the police some seven years later, you acknowledged some physical intimacy during the night. However, you denied that there had been any other physical touching of the victim apart from some spooning before you went to sleep. You described that spooning as running your hand across her rib cage.
Apart from a rather curious text from your phone to the victim’s phone at 6:28am which read “dude, you just woke up and flipped out and now you’re shaking”, there is no evidence other than the victim’s as to what had occurred during the night.
Objective Seriousness
The prosecution have submitted that there is no evidence which would permit me to conclude that you were reckless as to whether the victim was consenting as opposed to having knowledge that she was asleep at the time.
As to this, on the prosecution case, there is no evidence except the evidence from the victim who said she was asleep and that, on the day after the offence, you spoke with her on the telephone and you claimed to her that she was making noises at the time to indicate she wanted it.
In her evidence, the victim said that when she became conscious she was aware that her vagina was wet and she began to move her hips to try to let you know that she was awake. Later the victim acknowledged that when she started to move, trying to adjust your hand, that maybe, at that point, she did make the noises which you referred to in that conversation.
Apart from these references in the evidence, there is simply a paucity of evidence both as to the extent and duration of your offending.
The prosecutor submitted that the facts here are substantially similar with to the case of DPP v Williams [2024] ACTSC 23, however, I cannot accept that submission. Having read that case, it seems plain from the offender’s conduct in that matter that he unequivocally accepted that he knew the victim was not consenting.
The prosecutor submitted that the jury verdict is consistent only with the jury having accepted the complainant’s evidence that she was asleep at the commencement of the offending. That may be so, but it does not speak to the accused’s state of mind at that time, particularly in light of the complainant’s evidence that she was in and out of it and the complainant’s concession that she may have made the noises referred to in the conversation that I have referred to.
All of this leads me to conclude that I cannot be satisfied beyond reasonable doubt that you had actual knowledge at the relevant time that the victim was not consenting. It follows that I must sentence you on the basis that you were reckless as to whether or not the victim was consenting.
The prosecution also submitted that the circumstances of your offending amount to a significant breach of trust. In making that submission, the prosecutor again relied on DPP v Williams, as well as DPP v Gottaas-Hughes [2023] ACTSC 85. I have had regard to both of these decisions. However, in the context of the facts here, that is to say two 18-year-olds sleeping in the same bed after a night out drinking, I do not consider the facts in those cases to be relevantly similar.
Although it is true to some extent that most sexual offences, especially those committed in the context of a pre-existing platonic friendship, involve a breach of trust in a general sense, I do not accept that they are necessarily to be equated with sexual offences where the commission of the offence inherently involves a significant breach of trust, such as cases involving parents and child, teacher and student, superior and inferior, which the authorities and indeed the legislature make clear is an aggravating feature of the offending.
I accept the submission of your counsel that to characterise your conduct here as a significant breach of trust in that sense as explained by the authorities somewhat overstates the nature of the relationship which existed here.
I also make the observation that, in my view, both DPP v Gottaas-Hughes and DPP v Williams concern more serious examples of the offence of rape than occurred here. That is not to say that the offence of rape is not objectively a serious offence.
It is evident from the victim impact statement tendered in these proceedings that your victim has been deeply affected by your offending 10 years ago. Even now, she articulates clearly all of the confusing and conflicting emotions which she has experienced since your offending, including anger, guilt, fear, even some compassion and finally frustration with this matter dragging on and on as she put it. It is little wonder given the range of conflicting emotions which she describes that she found it so difficult to make a report about the offending and then, having reported it, to take the next steps necessary to proceed. What she has described are the effects of sexual assault which this court commonly sees. It is only to be hoped that once these proceedings have been finalised and you have, in fact, been held accountable for your offending that she can come to terms with what has happened and then move on with her life.
This offending is clearly objectively serious. As her Honour Chief Justice McCallum pointed out in DPP v Earle [2023] ACTSC 93 at [22]: … all offences of sexual intercourse without consent should be treated as offences of considerable seriousness. While the offence itself may involve conduct of short duration (as is the case here), the resulting trauma suffered by victims is often intense and enduring.
Those remarks are apposite here. It follows that considerations of punishment, deterrence, denunciation and recognition of the harm done to the victim are all very important considerations in sentencing you.
The prosecution contended that only an immediate custodial sentence can achieve these considerations. In support of that submission, the prosecution tendered a list of comparative cases and a table which demonstrates that, in the past six years, only in a minuscule number of cases has anything other than a period of full-time imprisonment been imposed. As a general rule, I accept that this must be so.
However, it must also be acknowledged, as the prosecutor properly did, that it is not correct to say that for an adult sexual offender in every case there has to be a period of full-time imprisonment.
An offender’s subjective circumstances must be weighed in the balance as well, including remorse, prospects of rehabilitation, the risk of further offending and the like. And there will always be exceptions to the general rule.
Subjective Circumstances
This leads me to consider your personal circumstances. I have been assisted by the report of Ms Alison Cullen, a forensic psychologist.
The first and most striking feature of this offence is that it occurred 10 years ago, at a time when you and the complainant were still 18. Delay in itself is not necessarily unusual, however there are a number of factors which I consider affect the significance of the delay in your case.
It is clear from the psychologist’s report that you suffered then and now with ADHD and generalised anxiety disorder, together with autism spectrum disorder.
The psychologist expressed the opinion that, at the time of offending, your ADHD vulnerability was exacerbated by your young age. You were more vulnerable to suboptimal cognitive functioning as your pre-frontal cortex had not yet reached full development. That suboptimal cognitive functioning was associated with reduced behavioural inhibition, effortful control or constraint, and negative emotionality and/or elevated novelty seeking. In the absence of medication, your need for instant gratification was magnified during the transitional period into adulthood.
It is to your credit that after this offending you eventually sought medical and psychological help from appropriate mental health professionals. Since 2019, you have been appropriately medicated for these conditions.
All of your character referees attest that your offending at age 18 was out of character. Although at times you have struggled with employment due to your mental health conditions, you have complied with the medication regime instigated by the psychiatrist who first diagnosed you and have demonstrated a good work ethic.
You have not expressed any remorse for your offending, although I acknowledge the fact that, in the circumstances where you have lodged an appeal against conviction and continue to deny the offence, it is difficult to express any remorse. Nevertheless, it is a fact that I cannot take into account any remorse.
I acknowledge, however, that remorse is principally relevant to your prospects of rehabilitation and there is nothing in any of the reports I have read which suggests you are at risk to any great degree of further offending.
It is evident from the material tendered on sentencing that, in the 10 years that have elapsed since the offending, you have demonstrated a strong work ethic and developed realistic plans for your future which include tertiary studies that I understand you have already commenced. You have abstained from drug and alcohol misuse which could have otherwise triggered your propensity for impulsivity which I have no doubt contributed to your offending against this victim and you have consistently complied with the medication regime prescribed by your doctor to manage your mental health conditions. It is a fact that in the 10 years since the offence was committed you have committed no further offence and indeed prior to this you had no criminal convictions.
The writers of the pre-sentence report describe you as demonstrating a responsible and cooperative attitude while being forthcoming with information during their required assessment
You have demonstrated the capacity to engage in a long-term relationship, which although now ended in part due to the stress of the current proceedings has not prevented your former partner from providing you with a glowing and insightful reference. That reference is a testament to your maturity and growth over the last 10 years.
It is for all of these reasons that I consider that it is not necessary to impose an immediate custodial sentence. There are and must be exceptions to every rule and I consider the circumstances of your case to be one such exception for the following reasons.
First, I have already explained why you are to be sentenced on the basis that you were reckless as to whether the victim was consenting.
Second, the period of 10 years delay in your particular case is relevant as in that 10 years you have had the benefit of being diagnosed and then treated for mental health conditions which undoubtedly contributed to your offending and which are undoubtedly relevant to your moral culpability in that offending.
It seems from the medical reports that your incarceration would lead to an abrupt cessation of your use of your medication for your mental health conditions which is not readily available in a jail.
Your prospects of rehabilitation I consider to be very positive as you have already demonstrated in the 10-year period just passed that you are capable of leading a productive and pro-social life. You have strong family support, stable accommodation, secure employment, positive future education prospects and you ceased abusing alcohol and drugs some time ago.
I consider it would be counter-productive and not in the interests of the community in all of the circumstances to impose an immediate custodial sentence.
Orders
I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Kelly.
Associate: Date: 29 April 2026
DPP
Cohen