DPP v Lodding

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – sexual intercourse without consent – offender found guilty at jury trial – non-consensual digital penetration while victim was intoxicated – offence caused considerable ongoing harm to the victim – no prior criminal history – lack of remorse – period of full-time imprisonment imposed – partial suspension Cases Cited: Wyper v The Queen; R v Wyper [2017] ACTCA 59 Parties: Director of Public Prosecutions (Crown) Christopher Adam Lodding (Offender) Representation: Counsel S McLaughlin (Crown) R Court (Offender) Solicitors ACT Director of Public Prosecutions Canberra Criminal Lawyers (Offender) File Number: SCC 37 of 2024 BURNS AJ:

1. Christopher Lodding, on 3 March 2025, a jury found you guilty of an offence of sexual intercourse without consent. The maximum penalty for that offence is 12 years' imprisonment. It is now my obligation to sentence you for that offence. It is part of my obligation to determine the facts upon which you are to be sentenced. Any fact which would make the offence more serious, calling for greater punishment, must be proved beyond reasonable doubt. On the other hand, any fact that tends to make the offence less serious or which would warrant a lesser punishment need only to be proved on the balance of probabilities. Any fact that I find cannot be inconsistent with the verdict of the jury.

2. I am satisfied beyond reasonable doubt of the following. This offence occurred on the evening of 5 January 2022 or into early hours of the next day. The victim was 16 years old. At that time you were in a relationship with the victim's mother and the two of you were residing together at an address in Canberra. The victim predominantly resided with her father in Goulburn, New South Wales.

3. On 25 December 2021, the victim commenced residing with you and her mother at the address in Canberra. It was intended that the victim would stay with you for about two weeks. On 26 December 2021, you gave the victim a foot massage for about 45 minutes. You also rubbed the victim's leg and when you got to her knee you said, “Why don't you take your pants off?” You repeated this a short time later.

4. The victim felt uncomfortable and refused to take her pants off. I am satisfied beyond reasonable doubt that this remark by you demonstrated a sexual interest on your part in the victim. A friend of the victim, who I'll refer to as AB, came to stay at the residence on 26 December 2021. Sometime between that date and 5 January 2022, you, the victim and AB were in your car when you stated that if police pulled you over you would say that the victim was your girlfriend. This was clearly flirtatious at least. On the evening of 5 January 2022, the victim was at the residence with you, her mother and AB.

5. The victim consumed alcohol and cannabis until she was acutely intoxicated. I am satisfied that her intoxication was obvious. The victim retired to her bedroom where she lay down on the inflatable mattress. The victim's mother placed a bucket beside the victim into which the victim vomited a number of times. Between 9:00 pm and 10:00 pm, AB got the victim a glass of water, checked that she was okay and then left the residence. About 10 to 15 minutes later, after the victim's mother left to have a cigarette, you entered the victim's room. You sat on the ground near the inflatable mattress. You began rubbing the victim's thigh through her black tights.

6. You ceased doing this when you heard the victim's mother returning. She entered the bedroom, collected the bucket and left the room to clean the bucket out. The victim requested that her mother call AB to ask her to return. She left the bedroom to do so. You then rubbed the victim's vagina through her tights for approximately 15 to 20 minutes. You then put your hand inside her tights and under her underwear. You rubbed her clitoris for less than a minute before inserting a finger into the victim's vagina, moving it in and out for a period of five to 10 minutes. During this period, the victim had her eyes closed and felt unable to do anything to stop you. You would periodically cease your conduct when the victim's mother entered the room.

7. Your offending concluded on one occasion when the victim's mother returned to the bedroom at which time you said that you were going to bed and left the room. I received a victim impact statement from the victim. She speaks of the emotional trauma that you have inflicted on her and her mother. She has developed eating disorders such as anorexia and bulimia, inflicted self-harm on herself and used and became addicted to harder drugs. She has now overcome that addiction. Her school life became more difficult, and she started acting out and directing her anger towards teachers and peers. She started wearing baggy clothes and covering her body.

8. She states that what you did has impacted her relationships and views on the majority of males. She says that she will never fully trust a male again. She continues to have unwelcome memories of your actions. In assessing the objective seriousness of this offence, I take into account the significant age difference between yourself and the victim. You were 35 years old, and she was 16. You were only able to commit this offence because the victim and her mother trusted you and you knew that they did. The victim was in a particularly vulnerable position due to her extreme state of intoxication. You were clearly aware of the fact that the victim was extremely intoxicated.

9. Your conduct was prolonged and not spontaneous. The offence was brazen. You clearly knew that the victim was not consenting. You engaged in the conduct for your own sexual gratification and your conduct has caused considerable ongoing harm to the victim. I would assess this offence as in the mid-range of such offences. You are now 38 years old, and you are the father of two children. One is aged 12 and the other is an adult. You were employed by the ACT Public Service.

10. Following your conviction, your employment was terminated. You are currently on Centrelink benefits and struggling financially. You live in a townhouse privately owned by your parents who rent it out to you. While employed you paid $300 a fortnight in child support which has now been reduced to $20 a fortnight due to your unemployment. A Pre-Sentence Report states that you experienced health issues as a child which negatively affected your early childhood. You described your family environment in positive terms free from domestic violence or substance abuse. The report noted that you have continuing support from your family.

11. You told the author of the report that you have been in a three-year relationship with your current partner who has two teenage daughters of a similar age to the victim of the present offence. You do not reside with your current partner. You reported completing your education to the end of Year 11 but said that you did not enjoy schooling as you were bullied. You have a consistent work history. You describe yourself as socially isolated and you spend your spare time renovating your current residence. You denied any current issues with alcohol or illicit drugs. In the past you used illicit substances including methamphetamine for a period as a result of a work accident.

12. You reported prior work injuries for which you were receiving pain management, treatment for back pain. You also reported a diagnosis of post-traumatic stress disorder and attention deficit hyperactivity disorder for which you are medicated. You describe your mental health as stable. You did not accept responsibility for the present offence. The author of the Pre-Sentence Report stated that you present with a number of protective factors including stable accommodation, family support and no current issues with substance abuse. It was recommended that you complete an offence specific program.

13. I have also received an Intensive Correction Order Assessment Report which assessed you as at low risk of general re-offending and as an average risk of sexual re-offending. You were assessed as suitable for an Intensive Correction Order, and you signed an undertaking to comply with all of the obligations of such an order. I received a report from Ms Vitra Nath, a registered psychologist, confirming that she had been providing psychological therapy to you since 27 June 2024. You presented with a previous diagnosis of post-traumatic stress disorder due to a robbery you experienced. She states that you attended regular sessions to manage ongoing concerns relating to depression, anxiety and stress pertaining to the present court proceedings.

14. During the course of therapy, a formal diagnosis of attention deficit hyperactivity disorder was made, and she noted that you have documentation of this from your psychiatrist. Ms Nath stated that you have shown a consistent commitment to the therapeutic process and that you are actively working towards improving your mental health and wellbeing. The second report that I received was from Dr Zakier Hussain, a neurosurgeon, dated 11 February 2025. The report notes that you presented after suffering injury at work. You reported severe low back pain with radiation into the left leg. An MRI scan of the lumbar spine showed an L4-L5 disc bulge with annular fissure on the left side. The L5- S1 disc was reduced in height with minor posterior protrusion. The L3-L4 disc is desiccated and minimally reduced in height with a posterior minor disc bulge and associated annular fissure.

15. Dr Hussain recommended continuing physiotherapy and medication. If it became worse, a steroid injection may be warranted. Recommendations were made regarding physical activities that you should avoid. I also received a report from Nidhi Negi, a physiotherapist, dated 22 April 2025. The report refers to you presenting following a work injury and reporting constant low back pain. You reported radiation of pain, pins and needles, and warm feeling in your left leg. You also reported numbness in the dorsum of your left foot. After examination the impression was L4-5-S1 disc herniation with L4-5 radiculopathy consistent with MRI findings.

16. The report notes that after completing seven sessions you had improved significantly. It was anticipated that you would be discharged from the course of physiotherapy at the next scheduled visit on 29 April 2025. There is nothing in the report from Ms Nath suggesting that your offending conduct was causally connected with any underlying mental health condition. I accept that your post-traumatic stress disorder, depression, anxiety and stress will probably make imprisonment somewhat more difficult for you than someone not similarly affected.

17. I also accept that your back condition will continue to affect you in custody, making custody somewhat more difficult for you. There is no evidence, however, that custody will worsen your back condition or that it cannot be adequately treated in custody. The same may be said regarding your psychological conditions.

18. You have no previous criminal history of any relevance, a fact that entitles you to some lenience in sentencing for the present offence. All offences of sexual intercourse without consent are considered serious criminal offences. Digital penetration of the vagina without consent is no less serious than penile penetration. The predominant sentencing considerations for offences of this nature are punishment, deterrence, denunciation, recognition of the harm done to the victim and making the offender accountable for their actions. Rehabilitation will always remain relevant but in offending of this nature, it is not the dominant sentencing consideration.

19. General deterrence is always relevant to sexual offending. It is important that courts impose penalties for such offending sufficient to deter others who may be minded to engage in similar offences. In the present case, despite your lack of prior relevant criminal history and the risk assessment undertaken by the author of the Pre-Sentence Report, individual deterrence is also relevant because of your refusal to accept responsibility for your actions and your lack of remorse. You did not enter a plea of guilty to the present charge and as such you are not entitled to leniency because of a plea of guilty.

20. You have continued to maintain your innocence after your conviction by the jury as it is demonstrated by the contents of the Pre-Sentence Report and the Intensive Correction Order Assessment. You have shown no remorse for this offence whatsoever. It is difficult to assess your prospects for rehabilitation. Your age, lack of prior criminal history, stable accommodation, family support and lack of present substance abuse issues would all suggest that you have good prospects for rehabilitation. On the other hand, your refusal to accept responsibility for your offending and your lack of remorse tends to suggest otherwise.

21. It was submitted by your counsel that I could proceed by way of an Intensive Correction Order. In that regard I was referred to the case of Wyper v The Queen; R v Wyper [2017] ACTCA 59 (Wyper) wherein the imposition of such an order for an offence of sexual intercourse without consent was not found to be manifestly inadequate. There were considerable differences between the circumstances of offending in that case and the present. It does not appear that the disparity in age present in your opinion was present in Wyper. Nor was the relationship between the offender and the victim comparable to that between yourself and your victim.

22. The offender in Wyper was some 20 years older than you and also had no prior convictions. The victim was not vulnerable as was the victim in your offending. I also observe that the Court of Appeal while finding the sentence imposed by the trial judge was not manifestly inadequate, described the sentence as “lenient”. A sentence of imprisonment can be served by way of an Intensive Correction Order, involves significant leniency compared to a sentence requiring an offender to serve a period of full-time imprisonment. I consider that such leniency is not warranted in this case because of your failure to accept responsibility for your actions and the complete absence of any remorse together with the serious nature of the offence.

23. In my opinion, the requirements of sentencing will only be satisfied by the imposition of a sentence of imprisonment part of which must be served by way of full-time imprisonment.

Orders

24. For those reasons, I make the following orders: (1) On the charge of sexual intercourse without consent (CAN 10832/2023), a conviction is recorded, and the offender is sentenced to 2 years and 10 months imprisonment commencing today, 10 June 2025 and expiring 9 April 2028. (2) The period commencing 10 June 2025 and expiring 9 September 2026 is to be served by way of full-time imprisonment. (3) The balance will be suspended and there will be a good behaviour order commencing 9 September 2026 and expiring 9 April 2028 requiring that you, during that period or such lesser period determined by your supervising officer, accept supervision of the ACT Corrective Services and obey all reasonable directions of your supervising officer.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Burns. Associate: Date: