DPP v Donnelly [2025] ACTSC 452

1. On 30 April 2025, the offender, Paul Donnelly, pleaded guilty to the following three offences: (a) Two counts of non-consensual distribution of an intimate image contrary to s 72C(1) of the Crimes Act 1900 (ACT), being counts one and three on the indictment (SC CAN 167/2024, SC CAN 169/2024). The maximum penalty for that offence is three years’ imprisonment, a fine of $48,000, or both. (b) One count of sexual intercourse without consent contrary to s 54(1) of the Crimes Act, count seven on the indictment (CAN 2227/2024). The maximum penalty for that offence is 12 years’ imprisonment.

2. There are some additional charges which are to be taken into account pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT): (a) Two counts of capturing intimate visual data of another’s genital or anal region contrary to s 61B(5) of the Crimes Act (CAN 3365/2024, CAN 3366/2024). The maximum penalty is two years’ imprisonment, a fine of $32,000, or both. (b) Three counts of capturing intimate visual data of another that is indecent or an invasion of privacy contrary to s 61B(1) of the Crimes Act (CAN 2229/2024, CAN 2230/2024, CAN 2231/2024). The maximum penalty is also two years’ imprisonment, a fine of $32,000, or both.

Facts

3. The facts were set out in an Agreed Statement of Facts. I find the facts in accordance with the Agreed Statement of Facts. The following is a brief summary so that the sentences imposed may be understood.

4. In August or September 2023, the victim and the offender met using the mobile dating application Tinder. A few weeks later, they started communicating on Snapchat. Four or five days after starting doing so, they commenced sending sexual images to each other.

5. Chronologically, the scheduled offences occurred prior to the substantive offences. Charges CAN 3365/2024 and CAN 3366/2024 (the scheduled charges of capturing intimate visual data of another’s genital or anal region) occurred while the offender and the victim were engaging in consensual sexual activities in the back of a car near a dog park in Watson. The offender filmed their respective genitals during their sexual interactions in two videos that lasted approximately one minute each. The offender had not sought consent to do so and the victim had not given her consent.

6. Just before parting ways that evening, the offender sent to the victim the two videos that he had taken. That gave rise to count one on the indictment, non-consensual distribution of intimate images (SC CAN 167/2024).

7. There was then an incident on 21 September 2023 where the offender and victim had consensual sexual intercourse at a location known as Clancy’s Walking Track, Watson. During those sexual activities, the offender made three videos, two of which relate to acts of fellatio and one of which relates to penile–vaginal intercourse. These give rise to scheduled offences CAN 2230/2024, CAN 2229/2024 and CAN 2231/2024 respectively. Once the encounter ended, the offender sent the victim the three videos and this gave rise to count three (SC CAN 169/2024).

8. On 17 October 2023, the couple engaged in consensual sexual activity.

9. On 19 October 2023, the couple booked into a hotel and engaged in consensual sexual activity. During the course of this, the offender digitally penetrated the victim’s anus without her consent and without having sought her consent. He then inserted his penis into her anus without her consent and without having sought her consent. He continued with the anal intercourse for a number of minutes until he ejaculated, notwithstanding that the victim indicated to him that it really hurt. The digital and penile penetration is a rolled-up charge and is count seven (CAN 2227/2024)

10. In communications on 19 October, the victim indicated that she had not enjoyed anal sex and the offender apologised.

Victim impact

11. The victim of the offending read a victim impact statement. The statement describes the circumstances in which she came to be involved with the offender and the impact of the offending upon her. Those impacts include suffering from flashbacks to what occurred, a loss of trust in men, being unable to go out in public and feel safe, a fear of the future and the traumatic consequences of the judicial process itself.

12. Each of these impacts are of types which are unfortunately commonly experienced by victims of sexual assaults. Such impacts are often long term and pervasive. Objective seriousness

13. Counts one and three are offences under s 72C(1) of the Crimes Act. That makes it an offence to distribute an intimate image where the offender knows the other person does not consent, or is reckless about whether the other person consents, to the distribution.

14. An “intimate image” is defined to mean an image of the person’s genital or anal region, a female person’s breasts, or a person “engaged in a private act” (such as being undressed, going to the toilet, showering, bathing or engaging in “an act of a sexual nature of a kind not ordinarily done in public”) or an image that depicts the person in “a sexual manner or context”. “Distribute” is defined as including sending, supplying, showing, exhibiting, transmitting or communicating to another person.

15. The vice of the non-consensual distribution of such images is that the distribution provides the foundation for embarrassment, bullying, harassment, manipulation or blackmail of the person so depicted. Often, once the distribution has occurred, the potential for the use of the images is out of the control of both the offender and the victim.

16. Both offences here are rolled-up offences; the first involved two videos, the second involved three. So far as content was concerned, the images were of sexual activity. That is at the more serious end of the potential spectrum covered by the definition of “intimate image”.

17. However, the most significant feature for present purposes is that the distribution was only to the victim of the offending. Rather than being distributed for any malign purpose, the distribution appears to have taken place because it did not occur to the offender that the non-consensual making and distribution of such videos might be something that was unwelcome or upsetting for the victim depicted in them. However, the fact that they were distributed made it clear to the victim that they had been captured and were available for use by the offender. Because each charge is a rolled-up charge and involved recordings of explicit sexual acts, these offences are at the low end of the mid-range of objective seriousness, even though the distribution was only to the victim herself.

18. So far as the scheduled offences are concerned, s 61B(5) applies to visual data of a person’s genital or anal region, a female person’s breasts, in circumstances that involve an invasion of privacy. The offence in s 61B(1) applies to visual data which involves an invasion of privacy and is indecent. It therefore covers visual data which does not show the genital or anal region, or a female person’s breasts, but which is nevertheless indecent. The maximum penalty under both provisions is the same. The visual data the subject of the s 61B(5) charges shows male and female genitals and hence the offender was charged under that provision. The visual data the subject of the s 61B(1) charges is less focused upon the genitals and hence the offender was charged under that more general provision. The vice addressed by these provisions is that the capturing of the data by itself creates the potential for embarrassment, bullying, harassment, manipulation or blackmail, with or without further distribution. In the present case, the recording of the sexual acts in the manner that it was done and without the consent of the victim was degrading insofar as it reduced those acts to their bare mechanics and objectified the victim. Each of these would be mid range offences.

19. The sexual intercourse without consent is a rolled-up charge involving both digital and penile penetration of the victim’s anus. The offending does not appear to have been premediated. The penile penetration occurred for some minutes until the offender ejaculated. He continued notwithstanding that the victim made it clear that he was causing her pain. The offending involved going beyond the previously consensual sexual activities that had been engaged in rather than embarking on sexual activities in relation to which there had never been consent. It is a mid range offence.

Subjective circumstances

20. The subjective circumstances of the offender are disclosed in a pre-sentence report, intensive correction order assessment report, a report of psychologist Tabitha Frew and letters from the offender’s mother and wife.

21. The offender is 38 years old. He is one of three children. He had a positive childhood. He has two teenage children (aged 16 and 13) from two prior relationships with whom he maintains ongoing contact. He has been in a relationship with his wife since 2022. They have a seven-month-old baby.

22. The offender’s wife reported positively on the offender’s role as a father and pointed to the impact upon her and their child that would occur if the offender was given a sentence of full-time imprisonment.

23. The offender completed Year 10 at school. He then completed an apprenticeship as a chef. He has a consistent employment history in a wide variety of roles, initially in hospitality and then in construction-related work. He is currently employed delivering and picking up skip bins. His wife indicated that he had previously been heavily reliant upon marijuana as a coping mechanism but has given that up from January 2025.

24. He is assessed as suitable for a community service work condition and an intensive correction order.

25. In her report, Ms Frew makes diagnoses of “Autism Spectrum Disorder, Level 2 (Requiring Substantial Support), Without Intellectual or Language Impairment” and attention deficit hyperactivity disorder. She expresses the opinion that the mental impairments both directly caused and indirectly contributed to the sexual offending to a moderate extent. Of particular significance was the offender’s failure to appreciate subtle social cues and his immature tendency to adopt external sexual scripts. She describes that his tendency to rationalise his behaviour during the offences by assuming that consent remained unless it was explicitly withdrawn was consistent with features of autism and reliance on literal rule-based interpretations of social situations. In his consultation with Ms Frew, the offender attributed his engaging in the sexual relationship with the victim at a time when he was in a relationship with his current wife to his uncertainty as to his current wife’s commitment to him.

Criminal history

26. The offender has only a very minor criminal history which is not relevant to the present offending.

Plea of guilty

27. The offender entered pleas of guilty on 30 April 2025, following a criminal case conference on 15 April 2025. A reduction of between 15 and 20 percent on account of the pleas of guilty is appropriate in those circumstances.

Time in custody

28. The offender spent three days in custody in relation to these charges. That time in custody will be taken into account in determining the appropriate sentence.

Consideration

29. The offending involves non-consensual acts occurring in association with consensual acts. The behaviour was unthinking rather than predatory or malicious. The filming and transmission offences appear to be offences committed without appreciation of the undesirability of filming sexual acts unless there is explicit consent from those involved. The victim was vulnerable, as is not uncommon for persons seeking out relationships via web-based dating applications.

30. The diagnosis of autism spectrum disorder provides some explanation for the offending. It is notable that the evidence does not disclose a life which has clearly involved impaired social functioning. While the existence of that condition does reduce the offender’s moral culpability to some extent, that is offset to a degree by the fact that the existence of such a lifelong condition means that the offender is predisposed to act in a manner that does not take into account social cues.

31. The prosecution provided a useful table of comparable cases. Those indicated a range of sentences for sexual intercourse without consent with starting points of up to eight years’ imprisonment. Most sentences have a starting point of between two and three years’ imprisonment, with a number of them requiring periods of less than a year of full-time detention prior to suspension of the sentence. It is unusual for the offence to be dealt with by intensive correction.

32. Each of the purposes of sentencing are relevant. For this kind of offending between people who have met via internet dating applications, general deterrence is a very important sentencing consideration. That is reduced somewhat in the present case because of the diagnosis of autism spectrum disorder, which makes the offender a less suitable vehicle for general deterrence. Denunciation of the conduct and recognition of harm done to the victim are also important sentencing considerations. The prospects of rehabilitation are improved by the fact that the offender has accepted responsibility for the offending and has now been diagnosed with a condition which can be managed in future.

33. On the count of sexual intercourse without consent, the starting point is a sentence of 24 months’ imprisonment, reduced to 20 months on account of the plea of guilty.

34. Each of the counts of distributing intimate images may be dealt with by way of a fine and good behaviour order, taking into account the scheduled offences. On count SC CAN 167/2024, the offender will be fined $2,000 and required to enter into an undertaking to be of good behaviour for a period of two years. On count SC CAN 169/2024, the offender will be fined $3,000 and required to enter into an undertaking to be of good behaviour for a period of two years.

35. In relation to the custodial sentence, I consider the purposes of sentencing will be appropriately met if the offender serves his custodial sentence by intensive correction in the community, with a substantial requirement to perform community service. While it is not usual that an offence such as sexual intercourse without consent be dealt with by an intensive correction order, in this case I consider it appropriate principally because of the diagnosis of autism spectrum disorder which contributed at least indirectly to the offending and which would make the service of a sentence of imprisonment more onerous for the offender. Also influencing that disposition is the impact that full-time detention would have on the offender’s wife and young child.

Orders

36. The orders of the Court are: (1) On count CAN 2227/2024 (sexual intercourse without consent), the offender is convicted and sentenced to 20 months’ imprisonment which is to be served by intensive correction in the community with the condition that he perform 249 hours of community service within that period. (2) On count SC CAN 167/2024, and taking into account charges CAN 3365/2024 and CAN 3366/2024, the offender is convicted and fined $2,000 with two years to pay, and required to enter into an undertaking to be of good behaviour for a period of two years. (3) On count SC CAN 169/2024, and taking into account charges CAN 2229/2024, CAN 2230/2024 and CAN 2231/2024, the offender is convicted and fined $3,000 with two years to pay, and required to enter into an undertaking to be of good behaviour for a period of two years.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: