DPP v Hojlund

1. The offender, Damian Arne Hojlund, has entered pleas of guilty to the following offences: (a) One charge of aggravated intimate observations or capturing visual data (CC2022/10361), contrary to s 61B of the Crimes Act 1900 (ACT); (b) Three charges of aggravated sexual intercourse without consent (CC2022/11041; CC2022/11042; CC2022/11043), contrary to s 54(1) of the Crimes Act; and (c) One charge of sexual intercourse without consent (CC2023/3929), contrary to s 54(1) of the Crimes Act.

2. The Court is also to take into account the following offences: (a) One charge of aggravated common assault (CC2023/949), contrary to s 26 of the Crimes Act; and (b) One charge of intimate observations or capturing visual data (CC2022/3930), contrary to s 61B of the Crimes Act.

3. The maximum penalty for the offence of aggravated sexual intercourse without consent is imprisonment for 15 years. The maximum penalty for sexual intercourse without consent is imprisonment for 12 years. The maximum penalty for aggravated intimate observations or capturing visual data is a fine of $40,000, imprisonment for three years, or both.

4. The offender now comes before the Court to be sentenced for each of these offences.

The offending

5. The offending related to two separate victims over two separate periods in February to June 2021 and September 2022 respectively. These victims will be referred to as the first and second victims so as to preserve their anonymity. The first victim is so described because she was the first victim to report the offending, even though the offending against her happened second in time.

6. The facts relating to the offences are set out in an Agreed Statement of Facts, which also described several videos which captured the offending against the first victim. Those videos were also admitted into evidence. Offending against the first victim The offender’s relationship with the first victim

7. The offender and the first victim were in a sexual relationship between early September 2022 and early October 2022. At the time of this relationship, the offender was aged between 26 and 27 years of age, and the first victim was 18 years of age. The offender and the first victim were “family members” for the purposes of the Family Violence Act 2016 (ACT).

8. Although the first victim had been a regular drug user prior to meeting the offender, she was not using drugs at the commencement of their relationship. The first victim resumed drug use to bond with the offender when they commenced their relationship. The first victim most commonly injected heroin, but also drank GHB and used methamphetamine, fentanyl, amyl nitrate and MDMA. The offender would load syringes with drugs of an unknown quantity and ‘doctor’ the first victim by injecting the substance into her arm. After being injected with drugs, the first victim would often have no memory of what had occurred.

9. Prior to September 2022, the first victim was residing with a friend, but she moved out of this residence to reside with the offender in a tent at Oaks Estate, near the river by the Queanbeyan Cemetery shortly after they commenced their relationship.

The offending: 22 - 23 September 2022

10. On 22 September 2022, the offender told the first victim that unknown persons “with guns” “were after” them, and they needed to move to a new location. The first victim called her friend who picked up the offender and the first victim and drove them to a hotel in Woden.

11. Upon arriving at the hotel, the offender, the first victim and her friend went to a room that had already been booked. The first victim’s friend left shortly after they arrived. The first victim took a shower, whilst the offender set up some coloured lights on the bed head and a camera on a tripod facing the bed.

12. The offender then loaded a syringe with three points of MDMA and three points of methamphetamine. The offender injected the contents of the syringe into the first victim’s vein.

13. The first victim was still in the shower when the offender injected her with the syringe. She recalled herself slouching to the side, feeling ‘hot and tingly’ and paralysed, but still conscious. The offender assisted the first victim out of the shower, dried her off and placed her on the bed. The offender and the first victim engaged in consensual sexual intercourse. This is partly depicted on video, where the first victim appears to be actively engaging in the sexual activity.

14. The offender then injected approximately 7ml of GHB, split between a 5ml syringe and a 2ml syringe. The first victim lost consciousness shortly after these injections.

15. The first victim regained consciousness at approximately 8:30am the next morning. When the first victim awoke, the offender told her that it had been a “very scary night for him”, as the first victim had stopped breathing, requiring the offender to perform CPR.

16. The first victim felt unwell. Her vagina, anus and chest felt sore. Her body was covered in bruising and there was blood on the sheets. The first victim noticed strip LED lighting, as well as a number of sex toys around the hotel room, including a crop, paddle, whip, vibrators, lubricant and a gag ball. The first victim was wearing a collar which she could not recall putting on. When the first victim packed these items away, she noticed some of the sex toys were broken.

17. The offender and the first victim were picked up by the first victim’s friend and taken back to their tent at the cemetery. The first victim’s friend was told by the offender, both over text and in person, that the first victim had stopped breathing during the night.

The first victim discovers the offender’s videos

18. On 4 October 2022, the first victim was in the tent with the offender. The first victim suspected the offender was cheating on her and went through the offender’s mobile phone whilst he was asleep.

19. The first victim found three videos on the offender’s phone which recorded herself and the offender engaging in sexual intercourse. The metadata for the videos recorded that the videos were recorded between 2:10am and 3:30am on 23 September 2022. The first victim recognised the videos as depicting the hotel room in Woden. The first victim sent the three videos to her own phone and then deleted any record of sending the videos from her own phone and from the offender’s phone. In some instances, only partial files of the recordings were sent.

20. During the entirety of the conduct depicted on the videos, the first victim was unconscious. The offender was aware of this and knew that the first victim was not consenting to sexual intercourse. The recovered videos capture the conduct which is then described below (Count 1 – Aggravated capture intimate image). Video 1 – 5 minutes and 32 seconds

21. This video depicted the first victim lying on her back on a bed naked, with red, rash-like markings around her genital area. A black whip lay beside the victim’s body and she wore a black collar around her neck. The offender penetrated the first victim’s vagina with his penis (Count 2 – Aggravated sexual intercourse without consent). The offender then spat on the first victim’s face. The first victim was unresponsive (Scheduled offence: aggravated common assault). The offender then spat on the first victim’s face a second time (Scheduled offence: aggravated common assault).

22. The offender again penetrated the first victim’s vagina with his penis (Count 2 – Aggravated sexual intercourse without consent – continued). The offender spat on the first victim’s vagina (Scheduled offence: aggravated common assault – continued).

23. The offender then penetrated the first victim’s anus with his penis (Count 3 – Aggravated sexual intercourse without consent). The offender again spat in the first victim’s face. The victim’s eyes remained closed, and twitched (Scheduled offence: aggravated common assault – continued).

24. The screen then goes blank whilst music played in the background. The offender then placed his penis on the first victim’s face, slapping it across her cheeks and closed mouth several times. The offender then penetrated the first victim’s mouth with his penis while the first victim’s teeth remained closed. The offender moved his penis around the first victim’s lips (Count 4 – Aggravated sexual intercourse without consent).

25. The first victim was audibly snoring, as the offender moved his penis around her mouth. The offender then said “open up”, and slapped the first victim across the face three times. The first victim remained unresponsive and continued to snore (Scheduled offence: aggravated common assault – continued).

26. The offender then grabbed the first victim by the chin and spat in her face (Scheduled offence: aggravated common assault – continued). The offender then attempted to place his penis inside the first victim’s mouth, by using his fingers to pry open the space between her teeth and cheek. The offender then penetrated the first victim’s mouth with his penis, whilst the first victim continued to snore (Count 4 – Aggravated sexual intercourse without consent – continued). The offender masturbated himself before the recording concluded. Video 2 – 14 minutes and 11 seconds

27. The second video depicted the offender standing in front of the camera, and the first victim lying on the bed. Both the offender and the first victim were naked. The offender appeared to be preparing a syringe.

28. At one stage, the offender kissed the first victim’s head, placed tissue inside his nose and then walked around the bed to the other side while masturbating his penis. The offender climbed onto the bed on his knees and positioned himself between the first victim’s legs while masturbating.

29. The offender then lifted the first victim’s legs and penetrated her vagina with his penis (Count 2 – Aggravated sexual intercourse without consent – continued). The offender placed his finger in the first victim’s mouth and continued to penetrate her vagina with his penis. The offender spat on the first victim’s face again (Scheduled offence: aggravated common assault – continued).

30. The video then depicted the first victim’s legs straighten and stiffen. The first victim appeared to attempt to move away, with the offender’s penis still inside her vagina. The first victim then moved her body away to the side. The offender repositioned the first victim and penetrated her vagina with his penis again (Count 2 – Aggravated sexual intercourse without consent – continued). The offender moved his ear to the first victim’s mouth and monitored her breathing, and placed his finger inside the first victim’s mouth. The first victim can be heard to continue to snore.

31. The offender spat in the victim’s face again (Scheduled offence: aggravated common assault – continued). The offender moved the first victim’s leg to the side, which fell when the offender let go. The offender wiped his face with a towel.

32. The offender positioned himself on his side, behind the first victim, and placed the first victim on her side. The offender then penetrated the first victim’s vagina with his penis (Count 2 – Aggravated sexual intercourse without consent – continued).

33. The offender took hold of the first victim’s ankles to move her body across the bed, monitored her breathing, and then attempted to sit her up. The video depicts the first victim’s body falling limply to the side.

34. The first victim was lying face down and audibly snoring, while the offender penetrated her vagina with his penis (Count 2 – Aggravated sexual intercourse without consent – continued). The first victim then began to make sudden movements, sneezed and moved away from the offender’s penis.

35. After checking the first victim’s breathing again and then slapping her backside, the offender stood and began to masturbate his penis. The offender returned to the bed and penetrated the first victim’s vagina again with his penis (Count 2 – Aggravated sexual intercourse without consent – continued). The video concluded shortly after this.

Post-offence events

36. The first victim sent copies of the videos to several of her family members. She separated from the offender shortly after. She collected her possessions which included both her own mobile phone and the offender’s mobile phone which she provided to police.

37. On 5 October 2022, the first victim attended the Canberra Hospital Emergency Department and reported she was sexually abused and injected with drugs by the offender.

38. On 7 October 2022 and 10 October 2022, the offender and the first victim spoke about the offending by text. The first victim told the offender: … when someone is under the influence of drugs they can no consent to sex and u say we had extensive convos about our sex life but I was u der the influence of drugs the whole time and in psychosis which u knew about so how could I consent to anything. I am a shell of a human and now I have no home no family and no friends because you took it all away from me. [errors in original]

39. The offender responded “I tried to help you and you kept pushing me away you would rather just go back to what you know as normal cus its safe for you and I get that”.

40. On 15 October 2022, the first victim engaged with police on an unrelated matter. The first victim was highly distressed and asked the police to keep her away from the offender. The first victim told the police the offender had drugged and raped her and filmed it.

41. During the interview with police, the first victim said the offender: … ran around telling everyone that there was a video of me and him having a conversation about I knew how many – how much drugs he was giving me that night and that I consented to everything. But he could never – never provide that video to anyone. It does not exist. I went through the phone. It is not a thing

42. On 7 December 2022, the police examined the offender’s Samsung Galaxy tablet. The police conducted a search history of the dates 23 – 24 September 2022, and located search terms including “Passed out on ghb fucked”. The tablet also recorded that on 20 October 2022, the offender searched “What to do if you are offender of statutory rape”, and on 24 October 2022, he searched “How long after being raped can I get a rape kit”.

43. On 16 November 2022, the offender participated in a record of interview with police. In that interview, the offender told police that: (a) The offender and the first victim were in a relationship from 13 September 2022, and used drugs together; (b) That during a stay in a hotel, the offender and the first victim agreed to make content for the first victim’s ‘Only Fans’ page, and that the offender understood this content was being used against him as part of the allegations; and (c) He had an audio recording of the first victim consenting to what had happened. The offender did not tell police where the video was, but told police that these recordings were made 2 – 3 weeks prior to the incident; (d) He and the first victim had a book containing a contract for their sex life. The offender told police that the complainant introduced him to the ‘fetish world’ and ‘consensual non consent,’ and that prior to meeting the first victim, his sex life was ‘vanilla’; and (e) He and the first victim set up the cameras, stand and LED lights together, and the first victim looked into the camera and said “are we filming”. The offender told police that that the first victim had cut down the videos.

44. The interview was suspended as a result of time restraints. The offender then refused to speak to police the following day.

Offending against the second victim

45. The offender and the second victim were in a sexual relationship between approximately July 2020 and July 2022.

46. The offender and the second victim met on a dating app. The offender moved into the second victim’s house shortly after they met. They engaged in recreational use of GHB and methamphetamine at social events. The second victim commonly experienced tiredness, loss of control of bodily functions, loss of memory and unconsciousness as a result of consuming excess GHB.

47. The second victim reported that at some point during their relationship, the offender told the second victim that he had fantasies of “knocking someone out and having sex with them and videoing it”.

First Incident

48. On an unknown date during their relationship (approximately between February and May 2021), the second victim consumed an unknown amount of an unknown substance at his residence, and lost consciousness. After regaining consciousness, the offender told the second victim that while he was asleep, the offender had engaged in penile-anal intercourse with the second victim (Count 5: Sexual intercourse without consent).

49. The second victim had no memory of the incident or what he had been doing prior to the incident, and was unsure as to whether the second victim had been having consensual sex with the offender and passed out, or if he had passed out and then the offender engaged in the sexual intercourse when he was unconscious.

Second Incident

50. At some stage before 5 June 2021, the offender and the second victim hosted a number of people at a gathering at the second victim’s residence. Many consumed illicit substances.

51. The second victim recalled being in the lounge room. His next memory was waking up alone and naked in the master bedroom. The second victim walked back to the lounge room. There were several people there. The second victim said that the offender gave him “weird, smug grins”.

52. The second victim asked the offender why he was looking at him in that manner. The offender then showed the second victim a video on his phone. The second victim recognised his own bed, grey headboard and the plantation shutters on the windows in his bedroom. The video depicted a person on their back lying on the bed. The video did not show the head of the person in the image, but depicted the offender’s torso engaging in penile-anal intercourse with the person on the bed.

53. The second victim asked the offender who the person was on the bed. The offender told him, “it’s you” and “I just had sex with you whilst you were passed out”. The second victim was in a state of shock, and told the offender he did not want to watch the video anymore. (Count 5: Sexual intercourse without consent – continued; Scheduled offence: Capture intimate image).

54. At a later time, the recording of the offender having sexual intercourse with the second victim while he was unconscious came up in conversation. The offender stated that they had spoken about the incident beforehand. The second victim responded, “no, we fucking didn’t”.

55. On 5 June 2021, police attended the second victim’s house for an unrelated matter. The second victim told police that the offender had sexually assaulted him on two occasions and filmed it, but that he was not ready to report this incident at that time.

56. The relationship between the offender and second victim deteriorated in July 2021. The second victim obtained a Family Violence Order against the offender. Around this time, the second victim disclosed to his sister that the offender had drugged him, through giving him “G”, raped him and filmed it, and later made him watch it.

Subjective circumstances

57. The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR) dated 8 October 2024, and a report of Dr Richard Furst, forensic psychiatrist, dated 10 February 2025.

Personal circumstances

58. The offender is currently 29 years old was born and raised in Wollongong, New South Wales. He has one sibling. The offender did not report any adverse events or trauma in his childhood, other than that his younger sister received more attention from their parents and felt he was “black sheep of the family”, and that his mother had a history of anxiety and depression and would at times drink excessively.

59. The offender said that he felt disconnected from his family due to his illicit substance use, and moved out of the family home to Canberra at age 19. He had limited contact with parents for 10 years, but recently resumed contact. Whilst his parents are aware of his incarceration, the offender declined a request for his parents to be contacted for the PSR.

60. The offender was homeless for five years prior to the offending. After a relationship breakdown, he lived in a caravan and his car for two years before sleeping on the street or in a tent.

61. The offender left school after completing Year 10 and commenced but did not complete an Information Technology course at TAFE. He held retail employment in Wollongong for four years, and two retail positions in Canberra, each for one year. The offender ceased working around 6 years ago and received a Centrelink Job Seeker payment whilst in the community, until he was taken into custody. The offender reported he was able to adequately manage his finances, but would occasionally spend his pay on illicit substances. The offender has held positions as a cleaner and an activities co-ordinator while in custody.

Drug use

62. The offender reported that he first used cannabis at the age of 16 in social settings. When the offender moved to Canberra, this increased to daily use of cannabis, then the use of methamphetamines. The offender stated that before being remanded in custody he used 0.5 grams of methamphetamine per day, which was often provided to him by his friends. The offender told Dr Furst he now realises this was “getting out of hand”. The offender also reported using cocaine, MDMA, hallucinogenic substances and gamma-hydroxybutyrate.

63. The offender said that most of his friends and connections also use illicit substances. The offender said that he did not believe he would return to using illicit substances after release from custody and advised he may engage in a day program or Narcotics anonymous for support. The PSR authors described the offender’s claim that he would not have any difficulty avoiding illicit drugs in the future as “at best naïve”, given the duration and level of his previous drug use. The offender cited concerns for his safety as a barrier to engaging in day programs whilst in custody.

64. The offender stated to Dr Furst that he was influenced by drug-using peers and also that used drugs to cope with anxiety and mood swings. The offender told Dr Furst that methamphetamine increased his sexual arousal and sexual pleasure.

Criminal history

65. The offender’s criminal history is limited to charges of drive with prescribed drug in oral fluid/blood, which was found proved but with no conviction recorded in the ACT Magistrates Courts on 17 July 2020, and an offence of fail to appear after bail undertaking and aggravated burglary with intent to commit theft, for which the offender served 1 month and 7 days imprisonment in late 2023.

Mental health

66. The offender has received diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), borderline personality disorder, antisocial personality traits, depression and anxiety, and has a history of Post Traumatic Stress Disorder (PTSD). The offender is currently prescribed a combination of the psychotropic medications Atomoxetine (40mg daily), Fluoxetine (20mg daily) and Seroquel (50mg daily) by ACT Health at the AMC.

67. The offender disclosed to the PSR authors and Dr Furst that he was diagnosed with ADHD when he was 6 years old and was medicated until he was 16, at which point he chose to cease medication due the side effects.

68. Since 2019, the offender has had frequent contact with mental health services, including crisis inpatient admissions, although the PSR notes that the offender’s engagement with treatment and support in the community was limited.

69. The offender told the PSR author that he experienced an assault seven years ago after meeting someone on an online dating application, and believes this contributed to his worsening mental health. The offender also reported that whilst in custody, he has experienced conflict with another detainee and has been subjected to threats to his safety, which has led to a recent decline in his mental health.

70. The offender similarly reported to Dr Furst that he was “held hostage” in 2019 or 2020 for around 6 hours while his kidnappers demanded money, which led to ongoing nightmares, intrusive memories, and avoidance of public spaces. The offender told Dr Furst that his drug use increased during this time. Dr Furst suggested that this maladaptive coping mechanism may indicate that the offender was struggling from PTSD at this time.

71. The offender reported to Dr Furst that he has been unable to maintain relationships due to becoming suspicious of partners and eventually “sabotaging himself”. He said that he has a fear of abandonment. Dr Furst’s report noted a history of self-harm and attempted suicide by overdose on over 10 occasions around 7-8 years ago. The PSR authors also referred to the offender’s “chronic suicidal ideation”.

72. Dr Furst was of the view that the offender likely used sex as a mechanism to cope with stress and internal emotional instability. Dr Furst was of the view that the offender should receive targeted psychological therapy regarding his deviant sexual arousal and sexual behaviour in general. Dr Furst also considered that prescription of anti-libidinal medication could reduce the offender’s testosterone levels and sexual deviance.

73. Dr Furst noted the offender’s apparent ongoing threats of violence, and expressed the opinion that the offender was vulnerable compared to other inmates. Dr Furst determined that the effects of being ‘stood over’, intimidated, threatened and/or assaulted would place the offender at a high risk of relapsing into more severe anxiety and/or depression.

74. Whilst in custody, the offender has engaged with the Custodial Mental Health Services on multiple occasions. The offender has expressed a willingness to engage with community supports for mental health in the future, and is aware of the process to access mental health support in custody.

Pre-Sentence Report

75. The PSR authors described the offender as having a “well above average” risk of sexual reoffending. The offender was assessed as suitable for a high level of supervision with ACT Corrective Services in relation to general offending. The PSR authors recommended that the offender would benefit from engaging in offence specific treatment to address sexual offending and domestic violence. Victim Impact Statement

76. In her victim impact statement, the first victim explained that she first met the offender because he was her “Mum’s best friend”. The first victim initially had the impression that the offender was not romantically interested in women, and became confused and felt guilty when the offender started “love bombing” her. Within a few weeks they were dating. The first victim described this period as “kind of a flash” because there were “so many drugs involved”.

77. The first victim eloquently described her experience of the aftermath of the offences in vivid terms. She said that she woke in the hotel room, naked and feeling violently ill. Her chest hurt and there was blood all over the sheets. She felt confused and terrified.

78. The first victim explained that after the finding the offender’s video, she “knew what had happened but still did not understand”. She expressed confusion as to why the offender performed chest compressions on her, and said that she felt like the offender only kept her alive so he could continue to hurt her. She continued “in a way, a part of me did die there. The offender killed a part of me”.

79. The first victim also described the ongoing physical harm she continues to experience from the offending. She said that she “did not recognise [herself] for a very long time”, and questioned everything she thought she knew. She said that she felt like she was “in a cage screaming for help”, but her body was in “autopilot” and she could not do anything about it.

80. The first victim told the Court that she still has ongoing physical and mental harm, of which the latter is “the worst part”. She explained that she experiences panic attacks, which she used to suffer daily and now suffers fortnightly. Thinking about the offending causes her to be physically ill. The first victim finds it difficult to be out in public. Wearing any tight clothing feels restricting and paralysing.

81. The first victim concluded with a statement of strength. She said that she is insulted that the offender thought that he could get away with the offending, and that he doubted her ability to come forward.

82. Both victims confirmed to the PSR authors that they had ongoing concerns regarding their need for protection from the offender. Sentencing considerations

Objective seriousness The offences of sexual intercourse without consent

83. Each offence was a serious example of its type.

84. As to the offences of aggravated sexual intercourse without consent against the first victim, I have had regard to the fact that: (i) The offender knew that the victim was not consenting. The victim was unconscious at the time of the offending; (ii) The victim was extremely vulnerable because she was unconscious at the time of the offending; (iii) The victim was 18 years old at the time of the offending, and was considerably (8 – 9 years) younger than the offender; (iv) As he had administered the drugs to the victim, the offender had a role in causing the first victim to become unconscious; (v) There was an element of premeditation in the offending; (vi) The offending involved a significant breach of trust; (vii) The offending was not momentary in duration but continued over a long period of time; (viii) The offending occurred in a hotel room, which the offender had taken the first victim to after telling the first victim that they needed to move due to a threat they faced. Although not the first victim’s home, it was a place that she was entitled to feel secure particularly against the offender’s report of the threats; and (ix) The offending caused the first victim pain and bruising.

85. The offender repeatedly spat on the first victim during the offences. This conduct constituted an additional element of degradation and humiliation. However, the act of spitting was the subject of a scheduled count and I will be careful not to double count this aspect of the offending when taking the scheduled matter into account.

86. I have also had regard to the fact that the offender did not wear a condom as an aggravating circumstance on sentence. In so finding, I have not overlooked the fact that there is no evidence as to usual condom practice by the offender and the victim when engaging in consensual sexual intercourse. However, people are entitled to make choices about contraception on each occasion that sexual intercourse occurs. In my view, the failure to use a condom remains an aggravating factor, even if there has been previous consensual intercourse without a condom.

87. As to the offending against the second victim, in assessing the objective seriousness of the offence, I have had regard to the fact that: (i) The count is a “rolled up” charge which encompasses two separate incidents; (ii) Neither offence was momentary in duration; (iii) The offender knew that the second victim did not consent to the sexual intercourse which was the subject of the first instance of offending, and at the very least became aware that the second victim was not consenting at some stage during the second incident; (iv) The offender took advantage of the second victim’s unconscious state to violate him by engaging in penile-anal intercourse; (v) The second victim was extremely vulnerable because he was unconscious; (vi) Both incidents encompassing the offence occurred in the second victim’s home; and (vii) The offending involved a breach of trust.

88. The offender was in a family relationship with both victims at the time of the offending. The offending involved a gross abuse of the trust of that intimate relationship. However, as this matter gives rise to an increased maximum penalty in respect of the first victim (as that offending was committed following the enactment of the Family Violence Legislation Amendment Bill 2022 (ACT)), I will take care not to double count the family violence aspect of the offending (in particular the breaches of trust) when imposing the sentences with respect to the offending against the first victim: R v Johnson [2005] NSWCCA 186 at [22].

89. In determining the sentences to be imposed with respect to offending against the first victim, I must also have regard to the matters specified in s 34B of the Crimes (Sentencing) Act 2005 (ACT) and the preamble to the Family Violence Act 2016 (ACT). Section 34B came into effect shortly after the offending against the second victim. There is a question as to whether s 34B applies with respect to the offending against the second victim: DPP v Smith [2022] ACTSC 246 at [104]. However, as Loukas-Karlsson J recognised in Smith at [107], this is “something of a moot point, as courts have recognised over time the same matters as the matters set out by the legislation”: see also DPP v Ivanisevic (No 2) [2023] ACTSC 374 at [46]. Accordingly, I consider the matters set out in the preamble of the Family Violence Act to be relevant to the sentencing process with respect to the offences committed against both victims.

The offence of capturing visual data

90. Section 61B of the Crimes Act provides that a person commits an offence if the person “captures visual data of another person” which “a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be (i) an invasion of privacy and (ii) indecent”. In the present case, that offence was aggravated because the offender was in a family relationship with the first victim.

91. The present offence was a serious example of that form of offence. Whilst the victim had apparently consented to the filming of the earlier consensual intercourse, the victim did not consent to filming once unconscious. The film recorded is of a degrading, graphic sexual assault. The offence constitutes a significant invasion of the first victim’s privacy and a gross breach of trust, particularly in view of the fact that the offender was in a relationship with the victim. However, I will again take care not to double count the family violence aspect of the offending, noting that that matter has already been taken into account by the legislature in the setting of the higher maximum penalty for this offence.

Moral culpability

92. On behalf of the offender, it was submitted that the combination of the offender’s somnophilia, ADHD and drug use reduced his moral culpability. The offender’s counsel submitted that the offender’s “multifaceted mental condition” sets him apart from offenders such as the offender in R v Grange [2023] NSWCCA 6 at [84] to [86]. In particular, that the offender’s childhood ADHD and consequent impulsivity led to abusing drugs, which increased due to his other mental conditions, and that in turn, drug use increased his sexual drive and disinhibition, leading to a diagnosis of somnophilia.

93. Counsel for the offender noted that the severity of a disorder need only be modest before the relevant principles are enlivened: DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]–[178]. He submitted the severity of the offender’s somnophilia was sufficient to drive the offending and therefore his “mental health contributed to his offending in a material way”, and his moral culpability should be accordingly reduced.

94. In contrast, the prosecution submitted that the application of the principles in R v Verdins [2007] VSCA 102; 16 VR 269 is limited, as the severity and role of the offender’s diagnosis of somnophilia at the time of offending was not directly addressed by Dr Furst. The prosecution also submitted there is no evidence the offender’s mental health materially contributed to the offending such as to reduce his moral culpability, but that the offending was instead driven by his somnophilia.

95. In the alternative, the prosecution submitted any reduction of the offender’s moral culpability would be slight, given the offender’s voluntary use of substances and decision to cease his ADHD medication. The prosecution also submitted that any evidence that the offender’s mental conditions either affected his capacity to consider the impact on the victims, or increased his impulsivity, should be tempered given that the offending against the first victim was premeditated, and the offender attempted to conceal the offending from her.

96. I accept the submission of counsel for the offender that the present case is unusual because of the multifaceted condition of the offender. I accept that there is a connection between the offender’s mental conditions and the offending behaviour and that there should be some reduction of the offender’s moral culpability arising from his mental illnesses, however, as I will discuss further below, these matters also give rise to a higher need to protect the community and for specific deterrence.

Experience of imprisonment

97. The prosecution accepted that the offender has been the subject of threats whilst in custody. Dr Furst considered that the offender may be more vulnerable to stress in a custodial environment on account of his mental illnesses. I accept that the offender’s experience of custody will be rendered more harsh by reason of his mental illnesses.

Remorse – s 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT)

98. The offender showed no remorse in the immediate aftermath of the offending. He endeavoured to conceal his offending with respect to the first victim, in particular, it may be noted that he told police that the first victim had earlier consented to sexual intercourse whilst unconscious. The offender also attempted to ‘gaslight’ the second victim in a similar way when he told the second victim that they had earlier spoken about having sexual intercourse in that manner.

99. After entering his pleas of guilty however, the offender wrote a letter to the Court in which he expressed his remorse the offending, stating it was never his intention to hurt two people he had loved. He said that he hoped by entering guilty pleas, the victims would be able to move forward with their lives.

100. The offender described that his time in custody had “been extremely difficult” as a result of his mental health struggles, but that it allowed him to reflect on his life and the damage that drugs had caused.

101. The offender referred to the impact of mental illness, drug addiction and homelessness on his life, and stated that since being in custody he had come to recognise, “with a clear mindset away from the drugs the terrible impact drugs made on [his] life”.

102. The offender told the PSR authors that illicit substance use contributed to the offending and had always formed part of his sex life. The offender admitted he did not consider he had done anything wrong until he was charged with the offences. However, he told the PSR authors he now feels ashamed and regretted causing harm to the victims, who he stated he cared about. The offender told the PSR authors he would be willing to engage in treatment specific to his offences to understand his behaviour.

103. The offender similarly told Dr Furst that he had no intention to hurt either victim, and stated that he, “can’t forgive myself because [he] hurt them [both] and I loved them [both]...it will never happen again...No more drugs”.

104. In view of the stance taken by the offender until shortly before the matter was listed for trial, I have considered the offender’s expressions of remorse, which were not made on oath, and were not the subject of cross-examination, with considerable caution. However, on balance, I consider that the offender’s entry of the pleas of guilty, whilst late, provides some support for his statements of remorse. Accordingly, I am satisfied that the offender has shown a limited degree of remorse for his offending.

Risk of reoffending and prospects of rehabilitation

105. The offender was assessed as having a “well above average” risk of sexual reoffending by the authors of the PSR. Dr Furst similarly determined the offender had an above average risk of sexual reoffending, although he disagreed with the PSR finding that the offender had a “well above average risk”. Dr Furst placed the offender’s risk of reoffending within 5 years of release from custody at the range of 15 to 25%.

106. It appears that there is some treatment available for the offender’s mental illnesses, and the offender has expressed some willingness to engage in those treatments.

107. Of most concern however, is the repetition of the conduct alleged. The offending against the first victim occurred within 18 months of the offending against the second victim. The offending against the first victim occurred after the offender had seen the shock and distress of the second victim upon being made aware of the offender’s actions. Despite this, the offender chose to engage in similar conduct on another occasion, aware of the harm that would be occasioned.

108. I do not find the offender’s prospects of rehabilitation to be sufficient to significantly mitigate the sentences to be imposed. However, as outlined further below, the need for rehabilitation will be an important consideration when determining the non-parole period to be imposed with respect to the offences.

Pleas of guilty – s 33(1)(j) of the Sentencing Act Pleas relating to the first victim

109. The offender was arrested on 20 October 2022, and entered pleas of not guilty to the offences relating to the first victim on 29 November 2022.

110. On 20 June 2024, the offender pleaded guilty to the offences against the first victim, following negotiations to roll up and withdraw some charges. The offender had first indicated to the prosecution that he was willing to negotiate pleas of guilty on 21 May 2024.

111. Relying on R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103, the prosecution submitted that where, as here, the negotiations secured an outcome more favourable to the accused (in that there are fewer charges), but there was little change to the subject matter covered by the charges, then the offender is not entitled to a receive a discount on the basis that the plea was entered at the earliest reasonable opportunity. I accept this submission and will assess the utilitarian benefit of the pleas from the date the plea indication was first made, that is, 21 May 2024.

112. The prosecution further submitted that the case in relation to the offending against the first victim was overwhelmingly strong, such that s 35(4) of the Sentencing Act applies. The offender accepted that the case against him with respect to the first victim was overwhelming, but maintained a discount should be afforded given the utilitarian value of the pleas. The offender’s counsel emphasised that “there is a significant difference between preparing for a trial and experiencing one”.

113. I find that the case against the offender with respect to the first victim was overwhelmingly strong, given that there is video footage of the offending where both the offender and first victim are clearly identifiable, and where it is apparent that the first victim was unconscious. Accordingly, the Court must not make any significant reduction for the fact that the offender pleaded guilty with respect to this offending: s 35(4) of the Sentencing Act. A utilitarian reduction should be applied, to recognise the fact that the first victim was spared the trauma of giving evidence. However, given the lateness of the plea, and the strength of the prosecution case, that reduction should be 5%.

Pleas relating to the second victim

114. The offender was charged with the offences which would ultimately form Count 5 and the scheduled offence of capturing intimate observations with respect to the second victim on 28 April 2023. On 16 May 2023, the offender entered pleas of not guilty to the charges. These charges were committed to the Supreme Court on 22 August 2023.

115. As noted above, on 20 June 2024, the offender pleaded guilty to the offences against the first victim, following negotiations to roll up and withdraw some charges. The offender had first indicated to the prosecution that he was willing to negotiate pleas of guilty on 21 May 2024.

116. The prosecution accepted that the case in relation to the offending against the second victim was not overwhelmingly strong, and that the utilitarian benefits of the plea should be acknowledged.

117. I will afford the offender a 10% reduction of the sentence to be imposed with respect to Count 5 by reason of his plea of guilty.

Comparative sentences – s 33(1)(za) of the Sentencing Act

118. Annexed to this judgment is a table of sentences imposed in this jurisdiction for comparative offences which was helpfully provided by the prosecution. The prosecution also provided comparative sentences imposed for like conduct in New South Wales. The maximum penalties for the offences there considered differ from the maximum penalties applicable to the present offences. Accordingly, I have not considered the NSW authorities to be of assistance.

119. I have carefully considered the sentences imposed in the ACT decisions, as required by s 33(1)(za) of the Sentencing Act. I have borne in mind however that care must also be taken in respect of the guidance to be gained from those cases, which involved differing offences with differing maximum penalties to the present case.

120. In considering the sentences imposed in the comparative cases, I have also borne in mind that these cases illustrate, but do not define, the possible range of sentences available, and that sentencing practice cannot cap the upper nor lower ranges of a sentence: R v Pham [2015] HCA 39; 256 CLR 550 at [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51] – [53]. The function of comparative cases is not to pursue strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles: Hili v R [2010] HCA 45; 242 CLR 520 at [48] – [49].

Additional offences to be taken into account

121. The parties have agreed that the following additional offences are to be taken into account in determining the sentence to be imposed with respect to the offence of aggravated sexual intercourse without consent (CC2022/11041): (i) Aggravated Common Assault (CC2023/949) – committed between 21 and 23 September 2022. As outlined above this concerns the various acts, in particular of spitting upon the first victim during the offending against her; and (ii) Intimate observations or capturing visual data (CC2023/3930) – committed between 1 January 2021 and 1 June 2021.

122. It should be noted that the latter offence concerns the second victim, even though the offence to which it is attached concerns the first victim.

Pre-sentence custody

123. As at the date of sentence, the offender has spent 907 days in custody. The sentences to be imposed will be backdated to take account of this presentence custody.

Determination

124. As the offender’s counsel submitted, the offender has led an adult life which is “far removed from the norms of everyday society”. Prior to the offending, the offender had experienced lengthy periods of homelessness. As outlined above, he has serious mental health struggles, including diagnoses of Bipolar Disorder, PTSD and ADHD. He also has a diagnosis of somnophilia. For the reasons outlined above, I am satisfied that the offender’s moral culpability is reduced to some extent by reason of these illnesses. I am also satisfied that the offender’s experience of custody will be rendered more difficult by reason of his mental illnesses, and the threats that he has received.

125. The offender’s counsel properly acknowledged that the offender’s somnophilia is a “double edged sword”, which may heighten the need for specific deterrence and protection of the community: DPP (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556 at [202] to [205]; R v Porter (No 3) [2022] ACTSC 236 at [194] – [196]; DPP v Gottaas-Hughes [2023] ACTSC 85 at [68]. Given my findings above concerning the offender’s risk of reoffending and prospects of rehabilitation, there is a high need for specific deterrence and the protection of the community.

126. Importantly, the offences have caused profound harm to the victims. Those harms are eloquently described by the first victim in her victim impact statement. Although I do not have a victim impact statement with respect to the offending committed against the second victim, it may also be readily inferred that the offending has caused that victim long-term harm.

127. Accordingly, notwithstanding the reduction of the offender’s moral culpability, there remains a “long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence”, namely, sexual violence: Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [54]. These matters carry particular weight given the family violence context of the offending against both victims.

128. Counsel for the offender properly accepted that no sentence other than full time imprisonment is appropriate to meet these purposes of sentence. I agree.

129. Taking into account each of the matters outlined above, I have concluded that the following sentences should be imposed: Count Maximum penalty Sentence of Sentence of imprisonment imprisonment (pre-discount) (post-discount and rounded down) Offending against the first victim (discount 5%) Count 1 3 years imprisonment; 2 years 1 year 10 months Aggravated intimate $40,000 or both and 14 days observations or capturing visual data of a person Count 2 15 years’ imprisonment 5 years 6 months 5 years 2 months Aggravated sexual and 14 days intercourse without consent (7 instances of penile vaginal intercourse), also taking into account the two additional offences Count 3 15 years’ imprisonment 3 years 6 months 3 years 3 months Aggravated sexual and 14 days intercourse without consent (one instance of penile/anal intercourse) Count 4 15 years’ imprisonment 3 years 6 months 3 years 3 months Aggravated sexual and 14 days intercourse without consent (two instances of oral penetration) Offending against the second victim (discount 10%) Count 5 12 years’ imprisonment 4 years 3 years 7 months Sexual intercourse without consent

130. The principle of totality requires that the effective sentence imposed on the offender represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [70]. This is not a straightforward exercise. As the Court of Appeal has held in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]: There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences. A sentence should not be “crushing” in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length). Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count. (citations omitted)

131. In the present case, the sentences that I will impose with respect to the offending against the first victim will be largely, but not entirely, concurrent, in recognition that these offences were related and occurred as a part of the same course of conduct. I will impose a greater of period of accumulation between the sentences imposed with respect to the offending against the first victim and the sentence to be imposed with respect to the offending against the second victim, so as to recognise the separate criminality, and harm, that was occasioned between those offences.

132. I accept that the offender will require a substantial period of supervision upon his release. Where, as here, the overall term of imprisonment will be lengthy, I consider it more useful to consider the actual period of supervision required, rather than to assess the non-parole period by reference to the ratio between the head sentence and the non-parole period: R v Ruwhiu [2023] ACTCA 18 at [112] – [113]. The overall head sentence will be one of 9 years, 3 months and 11 days. I will impose a 6 year non-parole period, which will afford the offender more than 3 years of supervised release.

Orders

133. For the above reasons, the following orders are made: (1) The offender is convicted of aggravated intimate observations or capturing visual data (CC2022/10361) (count 1) and sentenced to a period of imprisonment of one year, 10 months and 14 days to commence on 27 September 2026 and expire on 9 August 2028; (2) The offender is convicted of aggravated sexual intercourse without consent (CC2022/11041) (count 2) and sentenced to a period of imprisonment of five years, 2 months and 14 days to commence on 27 November 2022 and expire on 9 February 2028; (3) The offender is convicted of aggravated sexual intercourse without consent (CC2022/11042) (count 3) and sentenced to a period of imprisonment of three years, three months and 14 days to commence on 27 October 2025 and expire on 9 February 2029; (4) The offender is convicted of aggravated sexual intercourse without consent (CC2022/11043) (count 4) and sentenced to a period of imprisonment of three years, three months and 14 days to commence on 27 April 2026 and expire on 9 August 2029; (5) The offender is convicted of sexual intercourse without consent (CC2023/3929) (count 5) and sentenced to a period of imprisonment of three years and seven months to commence on 9 August 2028 and expire on 8 March 2032. (6) In making these sentence orders, the additional offences of aggravated common assault (CC2023/949) and making intimate observations or capturing visual data (CC2023/3930) have been taken into account. (7) The head sentence is 9 years, 3 months and 11 days, commencing on 27 November 2022 and expiring on 8 March 2032. The non-parole period will be a period of six years imprisonment, which will expire on 26 November 2028. (8) The transfer charge CAN950/2023 is withdrawn. (9) I direct that the victim impact statement be provided to the parole board.

I certify that the preceding one hundred and thirty three [133] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate: A McKay Date: 22 May 2025 ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances Subjective Sentence imposed Circumstances R v Teel (a Charges: Criminal history: Aggregate sentence 9 years pseudonym) 4 x Sexual intercourse without consent (SIWC) 1 x offence s.61B CA and 10 months [2021] (s.54(1) Crimes Act 1900 (ACT)) (“CA”) – capture intimate imprisonment; NPP 5 years ACTSC 183 8 x Act of indecency without consent (AOI) image; received a 2 and 10 months (Burns J) (s.60(1) CA) year GBO and fine of 3 x Act of indecency in the presence of a $5000 Individual sentences young person (AOIPYP) (s.61(1) CA) 1. CC20/7280: SIWC – 2 7 x non-consensual distribution of an intimate Early plea: Pleas years imp image (s.72C CA) were entered at an 2. CC20/8201: AOI – 10 early stage, evidence months Facts was strong but not 3. CC20/12360: AOI – 3 The offences were committed over two periods entirely months of time, 1/1/2022–22/4/2012 and 12/12/2017 – overwhelming; 25% 4. CC20/12372: SIWC 2 18/9/2018; the victim of the first series of given years and 8 months imp offences was the offender’s partner, the victim 5. CC20/12379: AOI – 12 of the second series was his wife. Other: 36 years of months imp age; problematic 6. CC20/12386: SIWC 2 The offending partly involved multiple alcohol consumption; years imp recordings taken over multiple time periods of suffered from PTSD, 7. CC20/12385 AOI – 12 the offender engaging in sexual acts with the anxiety and months imp victims whilst they were unconscious, the depression; 8. CC20/12388: SIWC 2 reason why or how the victims were assessed at an years unconscious is not stated. average risk of 9. CC20/12387: AOI 12 The sexual acts included digital sexual sexual reoffending; months penetration, fellatio, cunnilingus, and acts of remorse 10. CC20/12361: AOIPYP: 9 indecency which including touching the victim’s demonstrated. months imp breasts and genitalia, ejaculating on them and 11. CC20/12363: AOIPYP: 9 filming close ups of the victim’s genitalia. Slight reduction in months imp sentence on the 12. CC20/12365 AOIPYP: 9 basis of moral months imp culpability based on 13. CC20/12382: AOI 12 psychological months imp conditions and 14. CC20/12383 AOI: 9 alcohol abuse. months imp 15. CC20/12389/ AOI 12 months imp 16. CC20/13506, CC20/13509, 13511, 13514, 13518, 13542 and 13543: non consensual distribution: 8 months imp for each count DPP v Rue Charges: Criminal history: Total sentence: 3 years and [2023] 1 x AOI (s.60 CA – 7 years imp) limited CH with only 5 months; eligible for parole ACTSC 270 1 x SWIC (s.54 CA 12 years imp) a small amount of after 1 year and 10 months. (Taylor J) Both charges were rolled up counts traffic offences Count 1 – AOI; 20 mths imp, Facts Timing of plea: PG reduced to 19 mths Victim lived with her two children, she had in SC after case Count 2 – SIWC 42 mths, CCTV cameras in her home, as she sold illicit conference – 15 % reduced to 35 mths drugs. Including Gamma Butyrolactone (GBL). discount The victim used GBL and would lose consciousness if used to excess. Other: • 44 years of age Objective Circumstances Subjective Sentence imposed Circumstances Offender attended victim’s house, her children • Prolonged slept in another room. He used GBL with the history of drug victim, at some stage she lost consciousness. abuse She checked the CCTV which captured the • Limited pro offending. social connections AOI • Suffered from This conduct lasted 44 minutes, involved symptoms of offender touching victim’s vaginal area, legs depression and and breast, licking his hand on some anxiety occasions after touching her genitalia. The • Medium risk of offender would stop touching if she stirred or reoffending in a regained consciousness. Court found count 1 like manner was an overwhelmingly strong case. SIWC This involved the offender perform cunnilingus on the victim, who could be heard moaning, covering her mouth with her hand, he also digitally penetrated her vagina and engaged in penile vaginal penetration w/out a condom. The court found that the offender did not have actual knowledge the victim was unconscious during this offence, at [54]. Penile – vaginal lasted for 1 minute and 10 seconds. Objective seriousness: • Count 1 the offender conceded he knew his victim was not consenting and proceeded anyway; • Offender did not use a condom; • Victim was vulnerable due to her lack of consciousness (for count 1) and generally vulnerable; • Occurred in victim’s home; • The offending represented a breach of trust; • Opportunistic and predatory offending; • His moral culpability appeared high. R v NX (No Charges: Criminal history: Aggregate sentence of 4 rd 2) [2019] 1. Sexual assault in the 3 degree, (s.53(1) The offender had a years and 8 months, NPP 3 ACTSC 131 of CA, max penalty 12 years imp substantial criminal years (Mossop J) 2. SIWC (s.54(1) CA, max penalty 12 years) history. 3. 3 x Assault Occasioning Bodily Harm Individual sentences: (AOBH) (s.24 CA, max penalty 5 years) Timing of plea: The 1. Count 1 (knife to the Related offences offender entered his throat) 23 mths imp 4. 2 x common assaults (s.26 CA, max pleas to the various (reduced from 24mths); penalty 2 years) offences at different 2. Count 2 SIWC – 37 mths 5. 1 x capturing visual data (s.61B CA – max times. The discounts imp (reduced from 39 penalty 200 pu or 2 years imp or both) applied ranged from mths) 6. 3 x damage property (s.116(3) CA, - max 5%, 10% and 25% 3. Capturing visual data – pen 50 pu or imp for 2 years or both (at [29]) imp 3 mths and 24 days reduced from 4 moths Facts Other: Objective Circumstances Subjective Sentence imposed Circumstances Victim & offender in a relationship. Offender • The offender had 4. Damaging property – 1 committed offences of property damage and cluster B mth and 24 days reduced assault, victim then left the house on foot with personality from 2 mths her son. disorders 5. Common assault – imp 2 Later she returned and he held a Stanley knife • History of illicit mths and 21 days, to her face and directed her to perform fellatio substance abuse reduced from 3 mths on him, the offender then filmed the fellatio on and Witness to 6. Damaging property – 3 his phone. domestic mths and 21 days violence as a reduced from 5 mths On a later date the offender punched her in the child 7. Common assault – imp 2 head as she refused to cuddle him; he then mths and 21 days; pushed her onto the bed and struck her with a reduced from 3 mths torch (AOBH). He also bit her on the thigh 8. Count 3; AOBH – 3 causing bruising. moths and 18 days (reduced from 4 mths) Objective factors 9. Count 4 AOBH – 3 mths • Family violence context and 18 days – reduced • Victim was vulnerable, on account of from 4 mths needing to care for her child. 10. Damaging property – imp 3 mths reduced from Offence specific factors relevant to present 4mths sentencing exercise: 11. AOBH – imp 3mths & 18 At [15(f)] Capturing visual data (CC2018/5850) days reduced from 4 (filming oral sex): s 61B of the Crimes mths Act requires that the capturing of such visual data be an invasion of privacy and indecent. The objective seriousness is significantly influenced by the nature of the activity which is being filmed. In the present case, the activity was oral sex. There is no clear evidence as to the purpose for which it was captured, although the offender told the author of the pre-sentence report that it was for personal use. The offence in the present case is in the mid range of objective seriousness for this offence.