DPP v Hyatt [2025] ACTSC 103

1. On 25 March 2024, Mr Shane Hyatt (the offender) pleaded guilty to an offence of act of indecency without consent (SCCAN21/2024), contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 7 years’ imprisonment.

2. The matter was adjourned in September 2024 so that an Intensive Corrections Order (ICO) assessment report could be prepared for the Court. Such a report was for the assessment of the suitability of the offender to serve a term of imprisonment by way of ICO rather than by way of full-time imprisonment.

Agreed Facts

3. The Agreed Facts are set out in a case statement, which forms part of the Prosecution Tender Bundle. It was referred to by the parties as the Agreed Facts. The Agreed Facts may be summarised as follows, and I note in this context, that I have not referred to any person other than the offender by name. This is to preserve the victim’s privacy as required by law. The judgment must by law protect the victim’s identity: see Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74.

Background

4. As noted in the Agreed Facts, the conduct that formed the basis for this offence occurred some time ago. That is on an occasion between 17 November 2018 and 25 December 2018; approximately six years ago.

5. In 2018, the victim, who was then single, was living with her friend in the ACT. The victim’s friend was in a relationship, and has since married the person that she was in a relationship with. For clarity, I will refer to this person as the friend’s partner.

6. In the week prior to the offence, the victim’s friend asked her partner if he knew anyone who “might get on well” with the victim. The victim told the friend’s partner she “liked it a little rough in bed”. The friend’s partner noted that the offender might be a good fit for the victim.

7. The victim added the offender as a friend on Facebook shortly after. The victim understood that her friend’s partner had spoken to the offender about the victim, and the offender confirmed his interest in meeting with the victim.

8. An arrangement was made for the victim to meet the offender, in the company of her friend and the friend’s partner. The Agreed Facts noted that the victim understood that the plan was that she was going to “sleep” with the offender, but she had not spoken to the offender directly about this.

9. On a date between 17 November 2018 and 25 December 2018, the victim and her friend travelled to Canberra City to attend a bar and meet with the friend’s partner and the offender. The victim sat next to the offender in the bar and they talked and flirted.

10. The victim, the offender, and the victim’s friend and her partner attended two other bars before going home. During the course of the evening, all four individuals consumed alcoholic beverages. However, the victim was not drunk or intoxicated and “felt normal”.

Events in the victim’s house

11. Sometime between midnight and 1 am, the four individuals travelled to the house of the victim and her friend. Upon arrival, the four went upstairs and played a social game while eating some food. The victim and her friend did not consume alcohol at this time, while the offender and the friend’s partner may have consumed a beer.

12. The victim’s friend and her partner retired to the victim’s friend’s bedroom on the ground floor, while the victim went to her room upstairs. After going to the bathroom, the offender went to the victim’s room. The victim and the offender began kissing, with the offender pushing the victim to the bed. Sexual touching then occurred, with the offender fondling the victim’s breasts over her shirt, and the victim touching the offender over his pants.

13. Both individuals then undressed, and sexual touching occurred over each other’s underwear. The offender then left to go to the bathroom, and while this occurred the victim took off her underwear and lay naked on the bed. Upon the offender’s return, the offender removed his underwear and began touching the victim’s nipples and breasts.

14. The offender and the victim then had consensual penile-vaginal intercourse. When the offender tried to push the victim to a different position by sitting her up, the victim told the offender that the position would not work and pushed him off. The offender sighed loudly, and the victim thought that he appeared frustrated. The offender got off the victim and left to go to the bathroom again.

15. The offender was in the bathroom for about 5 minutes, with the victim wondering why the offender took so long. Upon the offender’s return, the victim recalled that the offender appeared “determined and annoyed”.

16. The offender then got on the bed and lifted the victim’s legs by bending her knees and lifting her legs up and inserting his penis inside the victim’s vagina. The offender and the victim began engaging in penile-vaginal intercourse, which the victim described as “forceful”.

17. The offender then put his hand on the victim’s throat, causing her to struggle for breath. At this point, the victim was still on her back with her legs bent in the air, with the offender on top of her in the “missionary” position. The offender continued to thrust while putting his hand on the victim’s throat.

18. The victim believed that she said words to the effect of that she could not breathe and telling him to stop, and that she tried to push the offender off. The offender removed his hand. Despite the victim’s belief that she communicated to the offender that she wanted him to stop, it was conceded by the prosecution that this could not be proven. This was not the subject of any charge and was apparently referred to in the Agreed Facts for broader context. This is not a matter I can have regard to in sentencing: see R v Olbrich [1999] HCA 54; 199 CLR 270; Filippou v The Queen [2015] HCA 29; 256 CLR 47.

Act of indecency

19. The offender then put both of his hands on the victim’s breasts and started tightly squeezing her breasts. The victim said “[o]uch that is too hard. That hurts”. The offender maintained eye contact with the victim and continued to squeeze her breasts.

20. The victim tried to push the offender off her by pushing his forearms, as well as moving her hips to try and move out from under the offender. However, the offender pushed down harder on the victim. As the victim felt she could not do anything to stop the offender, the victim stopped resisting, dropped her arms down by her sides and “let him do it”. She waited for the act to be over.

21. The offender then stopped squeezing the victim’s breasts and moved his hands down to the victim’s side. The offender began sucking on the victim’s left nipple and bit down on it, before moving to the victim’s right nipple and sucking and biting it. The victim said “ow” and put her hands under the offender’s chest and tried against to push him off. The offender put more weight on the victim in response.

22. The offender then sat up and the victim and the offender continued to have sex. The victim lay waiting for the intercourse to finish. The offender then stopped the intercourse and got off the victim to go to the bathroom. The victim did not think the offender ejaculated.

23. The victim went and got dressed after the offender went to the bathroom. Upon his return, the victim told the offender to leave after he asked if he should stay the night. The offender left.

24. The victim’s friend sent a text message in response to hearing someone coming down the stairs. Shortly after, the victim went to the friend and her partner’s bedroom, sitting down on a chair. The victim’s friend noticed that the victim looked upset, and asked if anything was wrong.

25. After going to an ensuite attached to the friend and her partner’s bedroom, the victim showed both individuals her breasts. The victim’s friend observed that the victim’s breasts had what she described as dark purple pressure bruises, consistent with being caused by a grab or squeeze. The victim’s friend also noticed that the victim was bleeding from her nipples. The friend’s partner also described seeing the victim’s nipples, which he described as being bruised and looking uncomfortable.

26. Approximately three years later, in November 2021, the victim submitted an online report to the police concerning the incident, and subsequently in 2021 an evidence-in-chief interview was conducted with the victim.

27. The following year on 4 May 2022, the police spoke with the offender. On 13 May 2022, the offender attended a police station where he was cautioned. At this time, the offender told police he was friends with the victim, her friend, and the friend’s partner.

Victim Impact Statement

28. The Victim Impact Statement (VIS) of the victim was read on to the record at the hearing. The statement included the following: [The offender’s] violent actions have impacted and haunted me every day for the past five and a half years. I have suffered emotionally, mentally and physically as a direct result of the hurt you inflicted upon me that night…

You took that bright young woman and destroyed her faith in others and her confidence in her ability to keep herself safe.

I have since experienced extreme fatigue and burn-out… I have dealt with major depressive episodes, and an ongoing cycle of low self-confidence and self-worth, leading to self-sabotaging behaviours and negative coping mechanisms…

I have endured severe feelings of loneliness and isolation following a breakdown in a long-term friendship with [the victim’s friend] … a direct result of the overwhelming pressure she felt to avoid picking sides between myself and her husband’s best friend. I have also experienced self-isolation from my immediate family…

I experience a great difficulty forming both romantic and platonic relationships… I hope that no one ever has to experience what you put me through… I am unsure whether the ending of this process will bring me closure, however I hope that it leads to the outcome that started me on this path: to stop you from inflicting violence on another woman ever again. I’m proud of myself for having the courage to stand up to you…

29. Counsel for the prosecution submitted that it is clear from the VIS that the victim has experienced “significant and long lasting” consequences. That, I agree, is clear from the VIS.

30. The Court recognises and acknowledges the serious and lasting effects of this offending on the victim. The Court further acknowledges the importance of what the victim has expressed in her VIS.

Issues at the hearing

31. In written submissions, the then-counsel for the prosecution at the initial hearing in September 2024, submitted imprisonment was the appropriate penalty but made no submission as to the sentence having to be served by way of full-time imprisonment. However, different counsel for the prosecution on the next occasion in January 2025, somewhat unexpectedly (considering the reason for the adjournment and the approach of the original counsel for the prosecution) submitted that a component of full-time imprisonment was called for.

32. Counsel for the offender submitted that the Court should impose a good behaviour bond with a “significant component of community service work”. Alternatively, counsel submitted that I consider suspending any sentence of imprisonment.

33. The second main area of dispute between the parties was the appropriate discount for the offender’s plea of guilty. I will deal with this later in these remarks at [91] to [95].

34. The parties provided the Court with written submissions as to the significance of the somewhat unusual change in prosecution position. Counsel for the prosecution submitted that no legal issue arose concerning the change of prosecution position. Counsel for the offender submitted that what had occurred amounted to a “change of opinion” and that the Court now had three distinct submissions on the question of sentence as opposed to the original two submissions.

35. It is undoubtably an unusual legal situation. In my view, self-evidently, such an unusual and evolving prosecution approach to sentencing is best avoided on the part of the prosecution. Nevertheless, the ultimate decision on sentencing is perforce to be made by this Court, taking into account the proper application of the law to the correct facts. It is trite to observe that neither the submissions of the prosecution nor the submissions of counsel for the offender can determine the appropriate penalty: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [62].

Objective seriousness

36. An assessment of objective seriousness is an essential part of the sentencing process. Nevertheless, it is not necessary for a judge to indicate where the gravity of an offence falls on a scale of low, midrange, or high. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]; see also R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

37. It is uncontroversial that the offence of committing an act of indecency covers a wide spectrum of offending, “from almost non-consensual sexual intercourse to relatively minor sexual indiscretions”: R v Ridley [2014] ACTSC 382 at [36].

38. Counsel for the prosecution submitted that the offending is an example of “the more serious type of the offending in the above range of behaviour”, as it involved a significant application of force to both breasts by the offender’s hands and teeth, despite protestation from the victim: R v Palmer [2017] ACTSC 357 at [22] and R v Teel (a pseudonym) [2021] ACTSC 183 at [46].

39. The prosecution submitted that relevant factors included: a) The offending occurred in the victim’s bedroom at her home; b) The offending conduct involved violent physical acts occasioning injury; c) The vulnerability of the victim was significant; and d) The offender ignored protests from the victim.

40. Counsel for the offender submitted that counsel for the prosecution had glossed over the following agreed facts on sentencing, relevant to objective seriousness: a) It was the victim who contacted the offender; b) The victim initiated the possibility of sexual intercourse; c) The victim invited the offender to the victim’s house; d) The victim initiated the sexual intercourse; e) The victim was not intoxicated or infirm.

41. Counsel for the offender submitted that the factors relevant to objective seriousness took the matter outside the norm of offending for this type of case and supported a finding that the imprisonment threshold was not met.

42. In this regard, it is important to underline that when human beings engage in consensual sexual intercourse, both men and women are nevertheless entitled to set boundaries. It is correct that where there is initial consent, this may be relevant to objective seriousness and in particular, in this case, context. Nevertheless, also relevant in this case is that the offending occurred in the context of opposition by the victim. Relevant legal issues on this topic were discussed in Kramer v R; R v Kramer [2023] NSWCCA 152 at [185]-[187]: …Those who engage in sexual activity with another person should be free to set boundaries around what is and is not acceptable in a particular sexual encounter… As in all other circumstances involving sexual encounters, consent is required for each activity whether it be an isolated act or set of activities, at whatever point that act or acts occur. …The passage from Cortese should not be read as suggesting that, where a complainant is clear and unambiguous about the acts that they do not want to participate in, the fact that they chose to participate in other acts mitigates the objective seriousness of the offending act. In the circumstances of this case, it is wrong to characterise the offence as comprising “just one extra step” or “a fleeting extra sexual activity”…

43. In assessing the identifying features concerning objective seriousness, I make the following findings. Both the factors identified by the prosecution and the factors identified by counsel for the offender, discussed above, together constitute the relevant identifying features for the purpose of objective seriousness.

44. In my view, the threshold of imprisonment is met in this case, in particular, in light of the injuries. I also note in this context that no issue concerning R v De Simoni [1981] HCA 31; 147 CLR 383 was raised in this case. Nevertheless, I am not of the view that the sentence ought to be served by way of full-time imprisonment. The reasons for the sentencing order concerning the ICO rather than full-time imprisonment, will be further discussed below.

Subjective circumstances

Pre-Sentence Report

45. In evidence before me is a pre-sentence report of August 2024 (PSR) prepared for the offender. That report includes the following in relation to the offender’s subjective circumstances. I note that at the time of sentence the offender is now 31 years of age. Contact with Corrections

46. The offender has no prior nor subsequent criminal history. The PSR also noted that during the preparation of the report the offender attended all interviews as scheduled and presented as forthcoming with information. The PSR also reported that the offender consented to Corrective Services contacting his partner to verify the supplied information.

47. These matters are, of course, relevant to the suitability in the offender’s case, for the sentence to be served by way of ICO.

Family and Marital Background

48. The offender reported he was born in Canberra and maintains a close and supportive relationships with his parents.

49. The offender reported one significant relationship, namely his current partner of approximately five years. The offender described his relationship to the PSR’s author in positive terms, noting that his partner had supported him emotionally throughout the period after he was notified of the current charge. The PSR reported that the offender’s partner verified information.

50. This stable background is also relevant to the suitability of the offender to serve his sentence by way of ICO.

Socioeconomic Circumstances

51. The offender reported owning his own property, where he has resided for approximately four years. The offender reported that his partner moved in with him approximately two years ago.

52. The offender began a locksmithing apprenticeship directly after school and after completing his apprenticeship he commenced work with his current employer with whom he has been employed for over eight years.

53. The PSR reported that the offender expressed significant concern about his financial and career stability after sentencing during the interview. The offender noted that he would likely no longer be suitable to hold a Working with Vulnerable People (WWVP) registration, and therefore not be able to maintain his employment.

54. The offender advised that he accordingly commenced studying for a Certificate IV in Information Technology in July 2024 in order to source alternative employment.

55. The offender described his social circle as pro-social, noting that he had maintained most of his friendships since high school.

56. I take these pro-social matters into account on sentence. I also take into account as a relevant subjective matter the employment concerns discussed above: see R v Gatica [2020] ACTSC 22 at [42].

Alcohol

57. During interviews, the offender acknowledged having been intoxicated during the commission of the offence and expressed the view that alcohol had played a role in the offence. This does, in my view, on the facts appear to be the case. I also note that the use of alcohol is an explanation but not a mitigating factor as such.

Health

58. In relation to mental health, the offender disclosed experiencing low mental health since being notified of the current charge. The offender reported he had engaged with a psychologist at various times throughout 2024 to address these symptoms. Sentencing Options

59. The author of the PSR assessed the offender as eligible for a referral to Restorative Justice.

60. The author of the PSR assessed the offender as requiring a low level of supervision in the community. In relation to a good behaviour bond, the PSR assessed the offender as suitable for a low level of intervention by ACT Corrective Services, commensurate with his assessed risk.

Remorse

61. The offender described the offence as a significant misunderstanding and miscommunication, denying any intention to cause the victim harm. The offender claimed that he and the victim had engaged in consensual sexual intercourse, and that he had been unaware the victim was uncomfortable or hurt by his behaviour until he was charged. The offender acknowledged having been intoxicated during the commission of the charge and felt this played a role in his failure to recognise the victim’s discomfort. The offender also felt that his consumption of pornography as a teenager had impacted his view of sexual intercourse. In my view, recognition of this factor on the part of the offender displays significant insight.

62. Further, the offender expressed disappointment, distress and confusion that he was not able to identify the victim was uncomfortable. The offender noted to the author of the PSR that he had struggled to reconcile his perception of the situation with the fact that two of his friends (the victim’s friend and her partner) provided evidence that the victim made a contemporaneous complaint about his conduct. The offender noted to the author of the PSR that he did not see bruising but acknowledged the evidence that there was bruising.

63. Overall, the PSR opined that the offender appeared to accept responsibility for the charge and that he recognised the impact on the victim. The offender noted that the victim likely felt violated by his actions. The offender expressed the view that the offending conduct must have had a significant impact on the victim’s life and wellbeing.

64. The Court has received a letter of apology from the offender dated 13 August 2024, and that letter to the Court includes the following: I've been given this opportunity to express my sincerest and deepest regrets for the actions I took in 2018. I have physically hurt and by doing so also emotionally damaged [the victim] in ways that no one should have to experience, let alone live with. I could blame my own intoxication during that night or my own inexperience at the time but that would not change the fact that there is no excuse and no reason that warrants my actions. Someone got hurt, and it was my fault.

I cannot speak on behalf of [the victim] so I can only base what I believe she’s gone through on the damage I’ve seen my actions take on those closest to me, those I love and care for. I’ve seen on a daily basis the pain and stress that these events have taken on my support network … I feel it accurate to say it can only have been worse for [the victim]. I hope come the end of this hearing she finds the healing she deserves and can move forward with her life. If I could take back what happened that night I would do it in an instant, but unfortunately for all things don’t work that way.

65. Counsel for the prosecution correctly and properly submitted that it is to the offender’s credit that he was able to demonstrate insight into the impact of his offending on the victim. This insight on the part of the offender is a significant matter on sentence.

66. On the evidence, I do ascribe significant weight to the remorse expressed and take this into account in sentencing the offender. I further note the offender’s referees also speak of his demonstration of remorse as discussed below. Again, the remorse and insight expressed augurs well for the offender’s sentence to be served by way of ICO rather than by way of full-time imprisonment. References

67. Thirteen references were tendered in support of the offender.

68. A thoughtful and considered reference from June 2024 under the hand of the offender’s current partner includes the following: [The offender] has talked with me countless times about his lapse in judgement, shock and regrets about that night. The thought of ever hurting anyone causes [the offender] a great deal of emotional distress. He has expressed to me feeling deeply saddened by any harm he caused [the victim] six years ago… While I did not meet [the offender] until a year after his encounter with [the victim], I know [the offender] is far from the man he was six years ago and I know he will continue to put the work in even after sentencing. This offence does not align with the man I have known deeply for five years.

69. An insightful reference under the hand of the mother of the offender’s current partner from August 2024 includes the following: The heaviest weight on [the offender’s] shoulders is knowing how his actions have impacted the victim. He has told me that he wishes he could turn back time and relive that day again. Consequently, therapy and psychological support continue to be a feature in his life.

I know [the offender] is deeply remorseful. He is now constantly trying to make amends to everyone in his life and prove that he is a good person. However, those who know him know he already is - he just does not see it in himself anymore. I have no hesitation whatsoever in knowing that he is a trustworthy person who will never make the same mistakes again.

70. A reflective reference from June 2024 under the hand of the sister of the offender’s current partner includes the following: When I first learned of [the offender’s] offence I was in disbelief. I could not comprehend the man I know doing such a thing, which I think is a testament to just how much effort [the offender] has put into bettering himself. He not the same person as he was when the offence was committed. I have always been impressed with [the offender’s] improvement of himself, I am aware he has also seen a therapist to help with this even further. [The offender] has discussed his offence with me, and has always been honest about it with me.

71. A thoughtful reference from August 2024 under the hand of the offender’s friend who he has known from preschool includes the following: When [the offender] informed me of the charges he was facing, I was genuinely shocked. It was incredibly difficult for me to come to terms with the allegations given the person I have known for 25 years. The idea that he would commit an act of indecency without consent was, and still is, something that I struggle to understand. However, throughout this entire process, he has been nothing but open and transparent with me about what happened in 2018. He has not shied away from the gravity of the situation.

From our conversations, I know that this has been an incredibly difficult time for [the offender]. The incident has weighed heavily on him, and he has taken significant steps to address his actions, including seeking professional help to process what happened. He has shown a genuine commitment to owning his mistakes and taking full accountability for his actions, fully aware of the consequences this would have on his future. This level of responsibility demonstrates the person I have known for the past two decades – someone who is committed to doing right by others.

72. An undated and perceptive reference under the hand of the mother of the offender’s friend (who he has known since preschool) includes the following: I have never known [the offender] to be dangerous, aggressive or dishonest. He has told me about the offence to which he has plead guilty and has expressed his extreme remorse when explaining it to me. He is deeply ashamed and regrets that the incident ever took place. I, personally, find it very hard to reconcile his behaviour at that time that led to the offence some six years ago, with the man that I have known for over 25 years. He has been honest in telling me about it and seeking my support through this reference. I stood by [the offender] when I attended the plea hearing and will always continue to do so into the future.

Since his guilty plea, [the offender] has sought professional help to deal with the impact of the incident, his actions at that time, and its aftermath. The impact of this conviction on his life and career is significant and indeed, life changing for him (and those who love and support him).

73. A discerning reference from August 2024 under the hand of the offender’s friend since year 7 includes the following: What makes the details of [the offender’s] actions so hard to accept was that I have always known him to show incredible respect, to all around him but particularly women. I have countless experiences with [the offender] where I have seen him provide safety and assistance to women in vulnerable situations. [The offender] goes out of his way to help people, particularly those that need it most. [The offender’s] actions in 2018 are completely at odds with his character and values.

Even so, [the offender] has shown considerable personal growth since I have known him. He has been in a committed relationship with his long-term girlfriend, [the offender’s current partner] for five years and I have never seen anything other than the utmost care, respect and love…

[The offender] will carry the internal and external consequences of this guilt for the rest of his life and while I can’t reconcile the events that have led to this with the man I have known for nearly 20 years, I recognise and commend his determination to take responsibility and make amends at whatever personal cost.

74. A similarly discerning reference from August 2024 under the hand of another of the offender’s friend includes the following: Personally, I do not believe that [the offender] is at risk of reoffending. He is deeply regretful of the situation and the hurt it has caused. The situation has been jarring to everyone who knows [the offender], but I still believe he is the kind of person I’d be incredibly happy to keep in my life and help raise my son. [The offender] is the kind of person you can call on at any time for help or to be someone to talk through issues with. His character has always been upbeat and honest.

75. A further reference from August 2024 under the hand of the offender’s high school friend includes the following: While acknowledging his guilt, I am incredibly proud of [the offender’s] response to this matter. I know [the offender] to be a man of immense character, integrity, honesty and empathy. I understand, as he does, the incredible lapse in judgement on the events of the night in question, however I have seen him demonstrate the above qualities along with his selflessness in admitting his mistakes. [The offender] has never once made this incident about himself, blamed others, been angry, or tried to mask the matter in any way. He has only ever thought of others and how he can ensure nothing like this ever happens again.

76. Additionally, a reference from August 2024 under the hand of another of the offender’s childhood friends and former housemate includes the following: I know [the offender] is deeply saddened and remorseful for causing harm to another individual. As a man of integrity, he has taken responsibility for his lapse in judgment by pleading guilty and doing the right thing, despite knowing the impact this would have on him, his relationships, his career, and his future. I am confident that he would never make the same mistake again, and I would not be writing this character reference if I thought otherwise. He has shown a willingness to confront his actions and learn from them, a testament to his commitment for personal growth and responsibility.

77. Furthermore, a reference from August 2024 under the hand of another of the offender’s friends includes the following: [The offender] has pleaded guilty knowing that this criminal charge will affect nearly all aspects of life moving forward. His professional life, where he has worked hard to make a career out of locksmithing and holds security clearances, is now uncertain. His personal life is severely impacted, everything from volunteering to starting a family through fostering is thrown into question. Despite this [the offender] has taken responsibility and will face the consequences.

78. Also, reference from August 2024 under the hand of the offender’s friend from studying for his apprenticeship includes the following: By pleading [the offender] has come to accept losses in his own life, though his professional position remains his licensing to continue his work has been suspended, giving meaningful doubt towards his future in the industry and further his ability to provide a sustainable income to support him and [his current partner].

79. Penultimately, an undated reference under the hand of the offender’s coworker includes the following: [The offender] has disclosed to me the nature of the offence of which he has plead guilty. Over every conversation we have had about it [the offender] has expressed remorse and regret of the incident and is obviously distressed when discussing this and thinking of the impact for [the victim]. [The offender] accepts responsibility for his actions and I have no doubt that he will not repeat these actions due to the depth of his remorse.

80. Finally, an undated reference under the hand of the company director of the offender’s former workplace spoke of consequences for the offender’s employment and includes the following: [The offender] admitted he greatly regrets his reaction.

He has taken time to reflect how it has changed the lives of everyone involved, both directly and indirectly.

81. I take these references into account on sentence. The offender has clearly spoken to many people concerning his offending and his remorse for this offending. He has undertaken rehabilitation and intense self-reflection in the period since the time of the offending. Again this is a matter that in my view contributes to the suitability of the offender to serve his sentence by way of ICO.

Intensive Correction Order Assessment Report

82. When this matter came before me in September 2024, I determined that I should give consideration to the sentence being served by way of ICO.

83. The ICO assessment report dated 22 January 2025 concludes that the offender is suitable for an ICO and includes the following relevant factors.

84. The ICO report noted that the offender has no prior criminal history. The author reported that the offender presented as capable and willing to comply with the conditions of an ICO. He attended appointments and completed weekly telephone compliance calls from 11 November 2024 to 2 December 2024.

85. The ICO report noted that on 28 October 2024 and 9 December 2024, the offender provided samples for drug testing and on both occasions produced a negative result for all illicit substances. During interviews with the author of the ICO report, the offender expressed a willingness to engage in interventions as directed, including the completion of offence-specific treatment.

86. The ICO report noted that the offender confirmed his family and partner remain supportive, and there are stable protective factors for him. This information was verified by the offender’s partner.

87. The ICO report ultimately assessed the offender as requiring a low level of supervision in the community. Further, the report noted it was positive that the offender independently sought supports in the area of mental health and expressed a desire to engage in treatment in the future.

88. The ICO report is positive and again underlines and reinforces the suitability of the offender for the sentence to be served by way of ICO rather than full-time imprisonment.

Criminal History

89. The offender has no prior criminal history nor any subsequent criminal history. Counsel for the offender properly submitted that the offender is entitled to rely upon his previous good character on sentencing.

90. I accept on the evidence that the offender was a person of prior good character. This is a positive matter relevant to this sentencing exercise that points toward an ICO rather than full-time imprisonment.

Plea of guilty

91. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

92. Counsel for the prosecution submitted that a discount of approximately 10% is appropriate. Counsel for the offender submitted that a discount of 15-20% is appropriate in this case.

93. Nevertheless, counsel for the prosecution accepted in written submissions that the value of the offender’s plea is higher in a case where a vulnerable victim was “spared from having to give evidence and be subjected to cross-examination about a traumatic and intimate experience.” In a similar vein, counsel for the offender submitted (as conceded by the prosecution) that there is significant utility in the plea as it spared the victim the demands of attending court and being cross-examined.

94. In my view that is undoubtably the case here, in accordance with the submissions of both the prosecution and counsel for the offender. It is, in my view, a significant factor concerning the discount for the plea of guilty.

95. Taking into account the relevant matters discussed above, in my view, a discount of approximately 15% is appropriate for the plea of guilty.

Comparable cases

96. It is well established on the authorities that sentencing statistics provide only somewhat limited assistance in the question of sentence: R v Pham [2015] HCA 39; 256 CLR 550. Statistics constitute a relatively blunt instrument, as statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it is also well established that sentencing is not a mechanical process, and that the sentencing factors that a judge must take into account may include sentencing factors that point in opposite directions. This is such a case. Accordingly, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]: [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

97. In this case, the prosecution submitted an inability to identify “a broad range of useful comparative sentences” given the “somewhat unusual factual matrix” of this case. Counsel for the offender also agreed that there were no comparative cases of any significant utility given the unusual factual matrix of this case. It must be said this is undoubtedly a somewhat, but not entirely unusual case, as it arises from initially consensual sexual intercourse that developed into an act of indecency that resulted in injury.

98. Both parties submitted that a relevantly comparable case is DPP v Earle [2023] ACTSC 93. Counsel for the offender also referred to the case of R v Teer [2019] ACTSC 334.

99. In DPP v Earle, McCallum CJ sentenced the offender after a jury trial, to a term of imprisonment for three years to be served in the community by way of an ICO for offences of one count of an act of indecency without consent and one count of sexual intercourse without consent. The offender and victim in this case had previously been in an intimate romantic relationship. On the night of the offending in this matter, the victim fell asleep and awoke to find the offender rubbing her clitoris with his fingers. The offender then digitally penetrated the victim’s vagina and performed cunnilingus on her while she remained frozen. The offender then inserted his penis into the victim’s vagina. At trial the jury found the offender guilty of an act of indecency for rubbing the victim’s clitoris and of sexual intercourse without consent for penile vaginal sex, but found the offender not guilty of sexual intercourse without consent for the acts of digital penetration and cunnilingus.

100. In R v Teer, I sentenced the offender to concurrent good behaviour orders for a total period of 30 months for offences of one count of an act of indecency without consent and one count of assault occasioning actual bodily harm. The offender and victim in that case were in an intimate romantic relationship. The victim was in bed with the offender when the offender woke up and tried to initiate sexual intercourse by fondling the victim’s breasts. Despite the victim telling the offender to stop as she did not want to engage in sexual activity, the offender attempted to put his hand in her underwear. The offender then rolled the victim over and pushed her head into a mattress with her face in the pillow. The offender held the victim in this position for about one minute while the victim screamed and struggled to breathe, before releasing her and telling her to “shut up”. The offender pleaded guilty to both offences. The threshold for imprisonment was not crossed in relation to that matter.

101. In further written submissions, the prosecution provided a Sentencing Table of act of indecency cases. The cases referred to included Van Eyle v McFarlane (Unreported, ACT Magistrates Court, Magistrate Campbell, 26 April 2024 – I note on appeal the sentence was confirmed by Mossop J); DPP v RR [2024] ACTSC 279; DPP v Rue [2023] ACTSC 270; R v Kelly [2020] ACTSC 292; and R v UG [2018] ACTCA 64.

102. I take into account, to the extent possible, the cases referred to above on the question of providing a “yardstick” as discussed by the High Court: Hili at [53]-[54].

Statutory and other relevant considerations

103. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above in this judgment.

104. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation of the offender are all important sentencing considerations in this case.

105. As with every sentencing exercise, attention must be paid to the maximum penalty, which provides a relevant yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The relevant maximum penalty in this case is 7 years imprisonment. I also note that giving consideration to the maximum penalty as a relevant yardstick does not mean that the maximum penalty must play the decisive role in the final determination of the sentence: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27]: The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the "worst case". As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination.

(emphasis added)

106. Finally, I underline that the sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. I have considered s 10 and, as earlier expressed, in my view, a term of imprisonment to be served by way of ICO is appropriate in this case.

Delay and rehabilitation

107. I have discussed the principles concerning rehabilitation and delay at length in R v Carpenter [2022] ACTSC 6 from [67] to [73]. Relevantly, in R v SP [2004] ACTCA 16; 149 A Crim R 48, Gray J observed at [34]-[35], referring to R v Todd [1982] 2 NSWLR 517, the following: The consequence was that over time, the respondent took positive rehabilitative steps for which he can now claim, and is entitled to, credit. The rehabilitation has not arisen consequent upon some action by the offender to avoid the consequences of the offence

…

This approach was approved by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59).

108. Delay of itself is not a mitigating factor; it may, however be in combination with other relevant sentencing factors favourable to the offender: R v Donald [2013] NSWCCA 238 at [49] citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164. Each case depends on its own facts: R v V (1998) 99 A Crim R 297. Further, it is well-established that, Street CJ’s statement in R v Todd [1982] 2 NSWLR 517 at 519 is the starting point in considering this issue on sentence.

109. In light of the offender’s rehabilitation in this case, that progressed during the period of delay, this is a factor that should be taken into account on sentence in this offender’s case. The rehabilitation that has been undertaken by the offender during the period of delay affects the sentencing exercise by lessening the significance of specific deterrence: PH v R [2009] NSWCCA 161.

110. Counsel for the offender properly submitted that delay was a relevant sentencing issue, given the incident occurred in November 2018 and the offender was first brought before the Magistrates Court in November 2022, some four years after the date of the offending.

111. Rehabilitation is an important consideration having regard to the offender’s previous good character, his clear remorse, and his insight and progress in rehabilitation. As stated (and often quoted) by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506, rehabilitation is important, and rehabilitation is in the public interest. Rehabilitation is important both for the offender and for the community: Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

112. Counsel for the offender properly and correctly submitted that the offender has good prospects for rehabilitation. I agree with this submission as it accords with my view of the evidence. The offender has achieved significant rehabilitation during the delay that ensued before the matter came to the Court: see R v Donald [2013] NSWCCA 238 at [49] citing Scook v The Queen [2008] WASCA 114;185 A Crim R 164; R v Carpenter [2022] ACTSC 6 at [69]-[70].

113. On the evidence, the offender’s prospects for continuing rehabilitation are clear.

114. Evidence of rehabilitation mitigates the need for personal deterrence and in my view, does so in the case of the offender on the evidence: Stanford v Regina [2007] NSWCCA 73 at [19].

115. I take these principles into account on sentence. The application of these legal principles to the facts in this case provide a further basis for the sentence to be served by way of ICO and not by way of full-time imprisonment. Sentence

116. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. Both the short and long-term consequences of being a victim of this offence are acknowledged by this Court.

117. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including: the objective seriousness of the offence and subjective matters concerning the offender; his prior good character; and his rehabilitation during the period of delay. It is also clear that the offender has insight into the deleterious combined effects of pornography and intoxication on sexual behaviour. Human beings undertaking sexual activity in real life are not actors in a pornographic film. It should go without saying but must regrettably be stated in the context of this case, that pornography is not real life. Real life sexual partners are not objects in a pornographic drama. Pornography may be boundaryless, but real life and the criminal law have boundaries.

118. The prosecution submitted that the sentence purposes of general deterrence, denunciation, punishment and recognition of harm should take primacy in this matter. In coming to a sentencing decision, I have taken into account not only the factors emphasised by the prosecution but also as I must, the important individual rehabilitation and excoriating self-reflection undertaken by the offender during the period of delay, along with the lack of a prior and lack of a subsequent criminal record on the part of the offender.

119. As I stated in Harlovich v Sebbens [2024] ACTSC 153 at [112], the synthesis of sentencing considerations is a difficult process. This is because sentencing often involves dealing with conflicting considerations. In Veen (No 2) [1988] HCA 14; 164 CLR 465 the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions (at [476]): …[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment… They are guideposts to the appropriate sentence but sometimes they point in different directions.

120. I underline, in the offender’s case, that where relevant considerations (as here) are incompatible, it is not necessarily the case that the sentencing result should constitute an averaging out. There are circumstances, as here in the offender’s case, in which a factor may be determinative: R v Hopkins [2004] NSWCCA 105; R v Bandy [2018] ACTSC 261. That is so, in my view, in the case of the offender.

121. Furthermore, as discussed in R v Elson [2020] ACTSC 264 at [85], in this case it must be underlined that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be a ‘significant punishment, coming second only to a term of full-time imprisonment’: R v Srna [2018] ACTSC 337 at [13]. It is an importance sentencing option in the sentencing armoury of this Court and entirely appropriate in sentencing the offender, as a matter of individual justice, in this case.

122. In my view, a sentence of 14 months and a discount of approximately 15%, resulting in a sentence of imprisonment of 12 months to be served by way of ICO, is the appropriate sentencing result in this case.

Orders

123. For those reasons the following orders are made: (1) For the offence of act of indecency without consent (Count 3) (SCAN21/2024), contrary to 60(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 12 months imprisonment that will commence on 21 March 2025 and expire on 20 March 2026. (2) The sentence of imprisonment imposed pursuant to order 1 is to be served by way of intensive corrections order subject to the core conditions.

I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson. Associate: Date: 27 March 2025