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1. On 29 November 2024 the offender, Jack Kaleb Ierfone, was found guilty by a jury of the following offences: (a) Count 1 (CC2023/8353) – committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT). (b) Count 2 (CC2023/8354) – engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

2. The offender must now be sentenced.

Facts

3. I am required to make findings of fact consistent with the jury’s verdict and based on the evidence at trial: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [13]-[16]. I must be satisfied beyond reasonable doubt of any fact which would aggravate the offending (R v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]) and satisfied on the balance of probabilities of any fact which would mitigate the offending (Olbrich at 281 [27]). Observing these principles, I make the following findings of fact.

4. In December 2022, the offender and the victim worked in the same department of a Commonwealth public service agency. They were known to each other but were not friends, having not ever socialised together at work or elsewhere.

5. The offender and the victim attended a work Christmas party on 9 December 2022. The party began in the early afternoon at Midnight Bar in Braddon. At around 10pm, the offender and the victim left Midnight Bar and walked further into the city to join some of their colleagues. The offender and the victim attempted to enter Wilma and Pearl Bar however the offender was initially denied entry due to his intoxication. The pair became aware that the group of colleagues they were looking for were at Dolly’s Bar, so they entered that establishment instead. Between midnight and 1am, many of their colleagues had gone home for the evening and the victim and the offender were outside Dolly’s, on Bunda Street. The offender suggested to the victim that they attend Hippo Bar in Garema Place for a drink. The victim agreed.

6. The victim and the offender walked to Hippo Bar. The offender was by this time moderately intoxicated, having commenced drinking early in the afternoon. The offender asked the victim if she wanted a drink. The victim declined however the offender still purchased two glasses of whiskey. At this point, the victim had no desire to consume anymore alcohol however once they sat down at a table, she sipped her drink to be polite.

7. Over time, the conversation between the offender and the victim became “very suggestive and sexual in nature”. The offender spoke about his sex life and referred to a woman he had slept with as “a meat sock”. The victim unsuccessfully attempted to redirect the conversation. The victim effectively disengaged from the conversation and waited for the offender to finish his drink as she wanted to go home. The offender repeatedly asked the victim if she would go home with him. The victim replied no, or words to that effect. The offender attempted to change her mind, telling her that “his cock would be the best thing she had tasted all night”.

8. During the course of their conversation at the bar, the offender reached across the table and touched the victim. He touched her knee, hand, thigh and wrist at various points, as well as hugging the victim. Following this, the offender reached over the table and used his right hand to touch the victim’s breast. They continued to talk for another 50 or so seconds before the offender again reached over the table, this time with both hands and touched the victim’s breasts. The victim did not consent to the offender touching her breasts. This conduct was captured in closed-captioned television (CCTV) footage and was Count 1 (CC2023/8353: Act of indecency without consent).

9. At approximately 2am, the offender finished his drink and the remainder of the victim’s drink, and they left the bar. The offender planned to take the light rail home so they both walked towards the station on Northbourne Avenue. The victim had driven her vehicle into the city that day, having parked opposite Civic Pool. The victim offered to drive the offender home as she was worried for the offender’s safety because he had been drinking. The offender accepted her offer and they walked to the victim’s vehicle. The victim got into her vehicle while the offender urinated nearby. The offender then got into the vehicle.

10. The offender told the victim where he lived and she began driving down Northbourne Avenue with the offender in the front passenger seat. The victim’s vehicle was a manual vehicle. While in the vehicle, the offender repeated his request for the victim to come home with him. The victim declined and the offender again stated that he would like the chance to change her mind.

11. As the victim decelerated due to an upcoming red light, the offender leaned over from the passenger seat, licked the victim’s neck and reached his hand under her dress. The victim was wearing stockings. The offender used his hand to rub the outside of the victim’s crotch and then pushed a finger or fingers into her vagina with enough force to push her underwear and stockings inside of her vagina. The victim was downshifting therefore had both her feet on the pedals of the vehicle. Both of the victim’s hands were on the steering wheel. The victim swerved her vehicle. The victim said something to the effect of, “Buddy, it’s not happening” and asked him to get back into his own seat. The offender’s digital penetration of the victim’s vagina was momentary. The act of digitally penetrating the victim’s vagina was Count 2 (CC2023/8354: Sexual intercourse without consent).

12. The victim arrived at the offender’s apartment complex shortly thereafter and asked him to get out of her vehicle. The offender refused to get out of the vehicle unless she joined him. The victim refused and repeated her request for him to get out of her vehicle. The offender attempted to bargain with the victim which resulted in her agreeing to give the offender her phone number and a hug. The offender exited the vehicle and the victim pulled her underwear and stockings out of her vagina before driving home. The victim’s vagina was sore from the offender’s conduct.

13. The victim reported the incident to a number of people in the immediate aftermath of the incident including her brother, her housemate, a close work friend and her partner. The victim went to police the following week and provided them with the stockings she had been wearing when the offender committed Count 2. The offender’s DNA was located on the outside crotch area of the victim’s stockings.

Victim impact statement

14. The victim provided a victim impact statement. I am obliged to consider the effect upon the victim of the offending: ss 33(1)(f) and 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).

15. The victim recorded the significant and varied ways her life has been negatively affected by the offending. It has diminished her sense of self-worth and made her generally distrustful of men. She no longer feels able to drive her vehicle freely which has had a substantial effect on the convenience of her day-to-day life. The victim detailed that in the two years since the offending, “there has not been a single day since the events of that night where they have not interfered with or limited my life and the way I would normally choose to live it in some capacity”.

16. All of the victim’s relationships have suffered as a result of the offender’s conduct. The victim revealed she has been diagnosed with post-traumatic stress disorder arising from the offending. She described losing her independence and a sense of her own identify. Her career has also suffered.

17. Undoubtedly, the offender’s conduct has had an enduring emotional and psychological impact upon the victim. The extent of the harm expressed by the victim in this matter revealed the wide-reaching and persistent effects of sexual offending The court is greatly assisted to appreciate the harm caused by the offending conduct through the provision of a victim impact statement. No sentence imposed upon the offender can undo the harm that his actions have caused, but the sentence imposed upon him must recognise that harm.

Nature and circumstances of the offending

18. As part of the sentencing task I must consider the nature and circumstances of the offending which requires an assessment of the objective seriousness of the offending. The maximum penalties for each offence, particularly the sexual intercourse without consent offence, reveal them to be in a serious class of offences against the person.

19. The nature and extent of the conduct engaged in will inform the level of seriousness of each offence, within that serious class. Consistent with other observations made in this jurisdiction about the utility of references to “low”, “mid” or “high” range offending, McCallum CJ observed in DPP v Moala (No 3) [2023] ACTSC 306 at [22] that it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. I have assessed the objective seriousness of these offences consistent with that observation.

20. The prosecutor emphasised the “unifying principles” accepted by the Court of Appeal in Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 at [114]: (a) Sexual offences are regarded as objectively serious offences by the courts; (b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence; (c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.

21. Of course, notwithstanding the utility of those general principles, each matter must be assessed by reference to the specific conduct engaged in by the offender.

22. In R v Palmer [2017] ACTSC 357 at [22] (applying Jurj v The Queen [2016] VSCA 57 at [80]) Mossop J set out the following factors as relevant to assessing the objective seriousness of sexual offences: (a) whether the offence was premeditated; (b) whether the offender acted alone or in company; (c) how long the attack lasted and whether the victim was raped more than once; (d) whether the offending involved violence or threats of violence; (e) whether a weapon was used; (f) whether the victim was injured in the course of the rape; (g) whether the victim was humiliated or degraded; (h) whether the offender used a condom; (i) whether the victim was particularly vulnerable; and (j) whether the offender ignored warnings or protests by the victim.

23. The offender acted alone and did not use a weapon. While it is well accepted that the offence of sexual intercourse without consent is inherently violent, the offending did not involve any additional acts of overt violence, nor threats of violence.

24. Both Counts 1 and 2 occurred in the context of the offender continuing to pursue the victim sexually despite her repeated rejections. The victim had made her lack of sexual or romantic interest in the offender clear. The offender was undeterred, both in the face of the victim’s more subtle attempts to shift the conversation and in response to her direct and unequivocal ‘no’ to his invitation to engage in sexual activity.

25. I am satisfied that the evidence demonstrated that the offender was reckless as to the victim’s consent in each case. Counsel for the offender conceded that the evidence supported a finding that there were no reasonable grounds for any belief on the offender’s part that the complainant was consenting and that he “went ahead irrespective of consent”. I have proceeded on this basis.

Count 1: Act of indecency without consent

26. In turning to the specific features of Count 1, the offending involved the offender reaching across the table and touching the victim’s breasts in public. The victim’s reluctance to protest or “make a scene” arose because of the public nature of the contact and that they would continue to work together. The offender’s conduct was brazen and demonstrated a sense of entitlement to touch the victim’s body as he pleased. The offence captured two separate instances of momentary contact with the victim’s breasts, approximately one minute apart.

Count 2: Sexual intercourse without consent

27. The prosecutor withdrew a submission that Count 2 was facilitated by the offender taking advantage “of the victim’s kindness to manoeuvre his way into her car”. This submission was inconsistent with the victim’s unchallenged evidence that the offender left Hippo Bar intending to catch the light rail home. It was the victim who offered the offender a lift to his home. On the evidence the offender neither sought nor suggested any assistance from the victim to get to his residence.

28. To be clear, I do not make this observation intending to place any responsibility whatsoever on the victim for what the offender went on to do to her once in the vehicle, but a submission that the offender confected or manipulated the circumstances to get the victim to offer him a lift home, so as to be alone with her in the vehicle and engage in the offending, was not supported by the evidence.

29. Accordingly, I am not satisfied that Count 2 was premeditated. In my view, the offending was opportunistic. Once in the vehicle with the victim, the offender took advantage of the opportunity to continue his sexual pursuit of the victim and of the victim’s focus being on operating the vehicle.

30. The conduct constituting Count 2 was momentary digital penetration of the victim’s vagina, over two layers of clothing, after the offender licked her neck and rubbed her crotch. The offender used sufficient force to push the victim’s stockings and underwear into her vagina such that she had to pull them out of her vagina after the offender left the vehicle.

31. The offending occurred while the victim was driving a motor vehicle. She was, in effect, ‘trapped’ in place and by virtue of that was limited in the immediate action that she could take in response to the offender’s conduct. The action she was able to take caused the vehicle to swerve and was successful in moving the offender back to his side of the vehicle. While the victim did not suffer any physical injury, her vagina was sore immediately following the offending conduct.

32. It need hardly be said that digital penetration is not to be treated as any less serious than penile penetration: The Queen v Miller [2019] ACTCA 25 at [29] citing R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 at [21]. The nature of the act in this instance extinguished the possibility of an aggravating feature, namely the risk of pregnancy and a sexually transmitted infection.

Subjective circumstances Pre-sentence Report (PSR) and Intensive Correction Order Assessment Report (ICOAR)

33. The reports detailed the offender’s personal circumstances and background. The offender is now 29 years old. He reported a stable and supportive upbringing. He maintains a close relationship with his immediate family. The offender is in a supportive relationship with his fiancé. They have been together for nearly two years.

34. The offender is well-educated and has several qualifications detailed below. He has been in his current cyber security consultancy role since 2022. Prior to this, he was employed by the Australian Defence Force (ADF) from 2014 to 2022. The offender has a mortgage as well as an outstanding personal loan from his parents for his legal fees.

35. The offender reported no history of illicit substance use. The offender reported that he first consumed alcohol at 18 years of age. His alcohol consumption increased when he joined the ADF and moved to Darwin, stating that at this time he consumed up to 20 standard drinks per week. Over the last 12 months, his alcohol consumption has been limited to five standard drinks per week.

36. The offender spends much of his time either studying or working and has various pro-social friends. The offender disclosed that he is taking prescribed medication for anxiety and depression.

37. Consistent with his plea of not guilty, the offender disagreed with the facts of the offending. He acknowledged that he and the victim had touched each other on the evening but denied any further sexual contact between them.

38. The offender was assessed by the report author as being at low-risk of general re-offending and being of average-risk of sexual re-offending. He was assessed as being suitable for an Intensive Correction Order and suitable for a community service work condition.

Character references

39. Five character references were tendered on behalf of the offender, one jointly authored by his parents, one by his fiancé, and three by close, long-term friends.

40. All the character references attest to the offender’s strong moral character and convey their disbelief at the offences for which he has been found guilty. Each author identified that the offending is entirely at odds with the person they know the offender to be. They consistently expressed that they have not ever observed the offender to hold or demonstrate problematic attitudes towards women. Rather, they described at length his responsible, caring and supportive nature. The references confirmed the offender’s struggle with anxiety and depression, in particular since being charged with the offences.

Other material

41. Comprehensive material relating to the offender’s education, employment and ADF service was relied upon. It established that the offender primarily served as an information systems technician before his voluntary discharge from the ADF after eight years of service. The offender has a Certificate III in Business, a Certificate III in Government and is currently enrolled in a Certificate IV in Accounting and Bookkeeping.

42. Following the guilty verdicts, the offender’s employment was no longer tenable as he would be unable to sustain the required security clearance. This has been a significant factor behind his enrolment in further study which is intended to assist him to pursue other opportunities for employment that do not require a particular level of security vetting.

43. The offender suffered psychological and physical injury arising from his defence force service. The offender experienced a relapse of his psychological conditions, namely major depressive disorder and generalised anxiety disorder, as a result of being charged with these offences. The offender re-engaged with psychological supports to assist him to manage the symptoms associated with the relapse.

Effect of any sentence on the offender’s partner

44. The offender’s fiancé currently resides in Australian on a student visa. She relies on the offender financially. A plan for her to obtain a partner visa with the offender as her sponsor will now be abandoned. Other avenues will need to be explored, as the recording of convictions as well as the imposition of a term of imprisonment greater than 12 months, will render the offender unfit to meet the character test. This was conceded by the offender to be an expected consequence of the findings of guilt. Hardship need not be exceptional before it can be considered: see Moala (No 3) at [46]-[48]. The offender’s partner is reliant upon him financially and emotionally and will suffer the loss of those supports should he be imprisoned. This is the unfortunate consequence for many who love someone who engages in criminal conduct. I will take the effect of the loss of supports from the offender upon his partner into account: s 33(1)(o) of the Crimes (Sentencing) Act.

Responsibility, remorse and rehabilitation

45. It is irrelevant to my determination that the offender pled not guilty: s 34(1)(f) of the Crimes (Sentencing) Act.

46. When considering the role of specific deterrence in this matter, as well as the offender’s prospects of rehabilitation, I cannot ignore that “there has been no real reckoning in his mind with his offending conduct”: Director of Public Prosecutions v Jones (No 2) [2023] ACTSC 99 at [63]. The absence of such a reckoning means that the offender has not demonstrated any remorse for the conduct he was found by the jury to have engaged in beyond reasonable doubt. Remorse is a factor relevant to a consideration of the offender’s prospects of rehabilitation. A remorseful offender typically has a degree of insight into their conduct and accordingly may be well placed to identify strategies to guard against re-offending.

47. Through his counsel the offender acknowledged the effect upon the victim of her participation in the criminal justice process, as she eloquently captured in her victim impact statement.

48. There can be “rehabilitation without confession”: Alseedi v R [2009] NSWCCA 185 at [65]. In Alseedi at [65] Giles JA (with whom Hidden J and McCallum J (as her Honour then was) agreed) observed that “offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt”: see also Sigalla v R [2021] NSWCCA 22; 357 FLR 148 at [142]- [147].

49. The offender bears a high level of responsibility for the offending. His state of moderate intoxication at the time of the offending, while providing some explanation, is no answer for his conduct. As was properly acknowledged, the offender’s intoxication at the time of the offending does not excuse the offending or reduce his moral culpability.

50. I accept that the process of being charged, tried and found guilty of the conduct alleged against him, has necessarily confronted the offender with the criminality of his conduct. I am satisfied that this experience, in circumstances where he has not ever been involved in the criminal justice system, has had some deterrent effect upon him.

51. The conduct the jury were satisfied that the offender engaged in revealed a persistent refusal to accept the unequivocal ‘no’ the victim repeatedly, and rather patiently, expressed. It was conduct borne of a sense of entitlement to pursue his own sexual gratification at the expense of, and with no regard for, the victim. The offender appeared to have generally accepted that alcohol played some role in at least the circumstances that generated the allegations. His alcohol consumption has been moderated it would seem as a result and material tendered on his behalf concluded that as of 2023, “[p]revious heavy alcohol use during posting to NT in keeping with culture there. Nil evidence of problematic use currently”.

52. The offender violated the victim because he felt entitled to do so. The absence of remorse for, or insight into, his offending conduct leaves that attitude of entitlement, which I am satisfied was underlying his persistent sexual pursuit of the victim when her disinterest in him was evident, entirely unaddressed.

53. The offender does not have any history of offending. He is in a committed, long-term relationship and his partner remains supportive of him. He has loving parents, a history of ongoing employment and a plan for his future. Further, he has revealed his willingness to seek out supports in relation to his mental health struggles. These are all protective factors that enhance his prospects of rehabilitation.

54. The author of the ICOAR categorised the offender as being at average risk of sexual re-offending and at low risk of general re-offending.

55. Notwithstanding the absence of remorse and aspects of the offending conduct which remain unaddressed, the strength of the offender’s subjective circumstances support a finding that he has good prospects of rehabilitation. Those prospects would be enhanced further if the offender was able to truly ‘reckon’ with the nature and extent of his conduct and confront the mindset that accompanied the harm that he caused to the victim.

Criminal history

56. The offender has no criminal history.

Time in custody

57. The offender has not spent any time in custody in relation to the offending conduct.

Sentencing practice

58. No sentencing outcome is a precedent. Sentencing statistics and comparable cases do not define or place an upper and lower cap on the range of available sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. Individualised justice requires each sentencing outcome be determined by reference to the facts and circumstances particular to that matter.

59. Bearing this in mind, I have had regard to the following sentences identified by the prosecutor as comparable: R v Ali (No 4) [2020] ACTSC 350, R v Buda-Kaa [2013] ACTCA 46, R v Aroub [2017] ACTSC 187, R v Taylor [2015] ACTSC 43, Miller, R v Ballantyne (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014). I have also had regard to the outcomes in R v Kindl [2015] ACTSC 128 and DPP v McKay [2025] ACTSC 42, as well as two additional comparable cases summarised at [49]-[60] of DPP v Williams (No 4) [2024] ACTSC 283, being DPP v Ware [2024] ACTSC 52 and Jones (No 2).

60. Counsel for the offender, conceding that a period of imprisonment was warranted in this matter, carefully highlighted R v Wyper (No 2) [2017] ACTSC 103 and DPP v Earle [2023] ACTSC 93 being examples where an offender was directed to serve a sentence of imprisonment for the offence of sexual intercourse without consent by intensive correction order.

61. In Miller the Court of Appeal (Burns, Loukas-Karlsson JJ) determined that an entirely suspended sentence for an offence of sexual intercourse without consent was manifestly inadequate though declined to interfere with the original sentence. In dissent, Bromwich J endorsed the conclusion as to the inadequacy of the sentence and determined that the offender should be re-sentenced requiring him to serve 12 months of full-time imprisonment.

62. Miller was an example of the offence involving digital penetration. The offending was not premeditated and was described as an “impulsive act which occurred over a very short period of time”. The offender pled guilty though demonstrated limited remorse and was assessed as being at high risk of “generalist” reoffending. The offender had a criminal history, was employed full-time and had family support. Accepting that the head sentence of two years of imprisonment was appropriate the majority determined the sentence manifestly inadequate, “insofar as it did not require the respondent to serve any period of full-time imprisonment”, observing that the offender should have been required to serve six months of full-time imprisonment before his release on a suspended sentence order: at [45].

63. In the matter of Wyper (No 2), the offender was found guilty by a jury of engaging in sexual intercourse without consent. In that matter, the offender and the victim were in an intimate relationship. Following a disagreement about the victim refusing to leave the offender’s residence, the offender held the victim down, pulled down her pants and digitally penetrated her vagina. The victim asked him to stop but he continued to digitally penetrate her vagina for a couple of minutes. The offender was a man of otherwise good character and did not have a criminal history. The offender was sentenced to two years and six months of imprisonment to be served by way of intensive correction order, as well as the imposition of 100 hours of community service work. The outcome was the subject of an appeal on the basis it was manifestly inadequate. The sentence, while “lenient”, was not manifestly inadequate: Wyper v The Queen; R v Wyper.

64. In Williams (No 4), I summarised the matter of Earle at [57] as follows: The offender was found guilty at trial by a jury of one count of committing an act of indecency without consent and one act of sexual intercourse without consent. The offender and the victim had previously been in a relationship. The victim had invited the offender to her house to “stay over” and the offender engaged in penile-vaginal intercourse with the victim. The act lasted a couple of minutes until the victim said “wait, wait, wait”, at which point the offender immediately stopped. The offender was relatively young with no criminal history. He was assessed as being unlikely to re-offend and was genuinely remorseful. He was diagnosed with Major Depressive Disorder and his risk of committing suicide in custody was assessed as high. For the act of sexual intercourse, the offender was sentenced to two years and six months of imprisonment to be served by way of an Intensive Correction Order with the imposition of 300 hours of community service and 20 hours of counselling. Chief Justice McCallum reconciled the jury’s verdicts, the offender having been found not guilty of other sexual offences committed within the same incident, by finding that the offender had an honest though mistaken belief as to consent for the counts of which he was acquitted, but that he did not turn his mind to consent in relation to the sexual intercourse.

65. DPP v Sarmiento [2023] ACTSC 92 was another matter where the offender was directed to serve a period of imprisonment by intensive correction order for a sexual offence. The observations I made in Williams (No 4) at [59]-[60] as to the outcomes in Sarmiento and Earle are also relevant for the purposes of this sentencing exercise: 59. Sarmiento involved an offence of attempted sexual intercourse without consent. The attempt was a “serious” one: at [11]. The offender was sentenced to two years of imprisonment to be served by way of an Intensive Correction Order. The offender had a low risk of re-offending, no criminal history and was assessed as having an elevated risk of suicide in custody as a result of severe depression. These factors were the basis of a determination that full-time imprisonment was not warranted. 60. In my view, there were significant considerations in Earle and Sarmiento not present in this case. In Earle the offender was a young man who “honestly but mistakenly believed that the victim was consenting to his first two acts of sexual intercourse but […] did not turn his mind to that important question before moving to a different sexual act” (at [29]) and he had severe depression. Similarly in Sarmiento the offender was relatively young, had been diagnosed with severe depression and the conduct though serious, was an incomplete example of the offence. Totality

66. The offender is to be sentenced in relation to two offences that occurred within hours of each other. I have had regard to the principles in relation to accumulation and concurrence as set out by the Court of Appeal in Dawson v The Queen [2019] ACTCA 9 at [37]. I consider a degree of accumulation is necessary to recognise the separate nature of the offences.

Determination

67. The instinctive synthesis that attends to the sentencing task requires consideration of the relevant factors and the application of sentencing principle to achieve a just and appropriate outcome. The purposes of sentencing are clearly set out in s 7 of the Crimes (Sentencing) Act. As I have already recorded, sexual offences are properly regarded as objectively serious by the courts.

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

69. It is to be accepted that sexual offending will often result in the imposition of periods of full-time imprisonment, such is the gravity of the offending. As McCallum CJ observed in Earle at [44], the comments in Miller, useful as they are to provide guidance and support consistency, should not be “hardened to immutable rules”. The instinctive synthesis that attends to every sentencing exercise must give effect to individualised justice.

70. Of particular significance in this sentencing exercise is the need to give proper effect to punishment, denunciation, and recognition of harm. General deterrence is a compelling consideration as the authorities to which I have referred affirm. It must be consistently reiterated by sentencing courts that women must not be treated as props for the sexual amusement and gratification of men. Offending which evinces an entitlement to treat women as mere vessels for those purposes must be unequivocally denounced.

71. Rehabilitation is a consideration given the offender’s strong subjective circumstances but is not a consideration that should overwhelm other important purposes of sentencing. I accept that the offender has been deterred to a significant extent by virtue of his engagement in the criminal justice system, but the absence of remorse demonstrated that there remains some need to deter the offender and hold him accountable.

72. The offender conceded that the only appropriate outcome for the offending in this instance was the imposition of periods of imprisonment. The issue for determination is whether the offender should be required to serve a period in full-time custody as part of the sentence of imprisonment.

73. Counsel for the offender submitted that the making of an intensive correction order, together with the imposition of a period of community service, could give proper effect to the purposes of sentencing including recognition of the offender’s strong subjective circumstances.

74. After careful consideration I have determined that the imposition of a sentence which did not require the offender to serve a period in full-time custody would fail to adequately comprehend the gravity of the offending. Such an outcome would be the result of the offender’s subjective features overwhelming the other purposes of sentencing. The subjective features of an offender cannot justify the imposition of a sentence which does not properly reflect the objective seriousness of the offending.

75. It follows that the imposition of an intensive correction order is not appropriate because it would not achieve the purposes of sentencing to which I must have regard including punishment, general and specific deterrence as well as recognition of the harm done to the victim.

76. That said, I am satisfied that this is a matter where a partly suspended sentence would properly serve those purposes and recognise the offender’s prospects of rehabilitation. In my view, the observation of the Court of Appeal in R v UG [2020] ACTCA 8; 281 A Crim R 273 at [82] with respect to partly suspended sentences is apposite: A sentencing court may consider that a “carrot and stick” approach involving a relatively short period of fulltime imprisonment and a relatively long period of supervision within the community is appropriate for an offender who has not previously served a significant period in fulltime custody and who seems capable of rehabilitation.

77. I am satisfied that a short period of full-time imprisonment adequately addresses the need for punishment, deterrence and denunciation. A partly suspended sentence need not achieve the relationship required between a parole and non-parole period: UG at [77]-[79]. Should the offender develop insight into his offending conduct a period of supervision will assist him to address the features of his offending conduct that I am satisfied remain unresolved.

Orders

78. For those reasons, I make the following orders: (1) On the offence of committing an act of indecency without consent (CC2023/8353), the offender is convicted and sentenced to 10 months of imprisonment commencing on 27 August 2026 and ending on 26 June 2027. (2) On the charge of sexual intercourse without consent (CC2023/8354), the offender is convicted and sentenced to 2 years of imprisonment commencing on 27 February 2025 and ending on 26 February 2027. (3) The total period of imprisonment is 2 years and 4 months. The sentence is to be suspended on 26 June 2025 after the offender has spent 4 months in custody, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 26 June 2027. (4) In addition, upon his release the offender is to accept the supervision of the Director-General, ACT Corrective Services or their delegate and comply with all reasonable directions, until 26 June 2027 or until such time supervision is deemed no longer necessary by the Director-General or their delegate.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 27 February 2025