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[2025] ACTSC 183
General information, not legal advice.
Supreme Court of the ACT
2025-05-06
Christensen AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Marquet Citation: [2025] ACTSC 183 Hearing Date: 2 April 2025 Decision Date: 6 May 2025 Before: Christensen AJ Decision: See [113] Catchwords: CRIMINAL LAW – Judgment and Punishment – Sentence – act of indecency on person under 16 years – sexual intercourse with person under 16 years – act of indecency without consent – two victims – rolled up offending – youthful offender – offending is serious example of offences – Verdins principles enlivened – where offender demonstrates remorse – moderate risk of sexual reoffending – prospects of rehabilitation – consideration of registration as child sex offender – consideration of hardship to family were fulltime imprisonment imposed – community based period of imprisonment not appropriate given gravity of offending – sentence to reflect denunciation, deterrence and community protection – fulltime imprisonment warranted in circumstances – some reduction for pleas of guilty – sentence partially suspended to promote rehabilitation and community protection Legislation Cited: Crimes Act 1900 (ACT) ss 55, 61 Crimes (Child Sex Offender) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 10, 12, 33, 34A, 35, 65, 65 Cases Cited: Agarwal v Coutts (No 2) [2024] ACTSC 92 Azzopardi v R [2011] VSCA 372; 35 VR 43 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 DPP v Cook [2024] ACTSC 379 DPP v Hudson [2023] ACTSC 333 DPP v Ierfone [2025] ACTSC 60 DPP v Malibe [2024] ACTSC 43 DPP v Timosevski [2024] ACTSC 205 DPP v Wade [2024] ACTSC 392 Okwechime v The Queen [2023] ACTCA 25 R v Ardron [2021] ACTSC 91 R v Aroub [2017] ACTSC 187 R v Atai [2020] ACTSC 335 R v Buda-Kaa [2013] ACTCA 46 R v Collins [2018] ACTSC 127 R v Dickerson [2016] ACTSC 337 R v ED [2018] ACTSC 366 R v FI [2017] ACTSC 190 R v Finau (No 2) [2020] ACTSC 193 R v Forster-Jones (No 2) [2019] ACTSC 286 R v Haddara [2018] ACTSC 70 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 R v Versteeg (No 2) [2020] ACTSC 273 TMTW v The Queen [2008] NSWCCA 50 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 Parties: ACT Director of Public Prosecutions Jack Thomas Marquet (Offender) Representation: Counsel G Cuthel (DPP) S Lynch (Offender) Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Offender) File Number: SCC 363 of 2024 CHRISTENSEN AJ: Introduction
The offender is to be sentenced in respect of three sexual offences committed against two teenage girls. The prosecution submits that only fulltime periods in custody are warranted. The defence submits that a community based order, in the form of an intensive correction order, is appropriate.
I am not satisfied that a community based sentence of imprisonment is capable of reflecting the purposes of sentencing that are to be reflected in the sentencing exercise. The offender, being a youthful offender with solid prospects of rehabilitation, will be sentenced to a sentence involving fulltime imprisonment, partially suspended with a good behaviour order including supervision.
Two offences were committed on DF (a pseudonym), being: (a) an offence of act of indecency on a person under 16 years, contrary to s 61(3) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 2024/1541), carrying a maximum penalty of 10 years imprisonment; and (b) an offence of sexual intercourse with a person under 16 years contrary to s 55(3) of the Crimes Act (CAN 2024/1543), carrying a maximum penalty of 14 years imprisonment.
One offence was committed on BA (a pseudonym), being: (a) an act of indecency contrary to s 60(1) of the Crimes Act (CAN 2024/7426), carrying a maximum penalty of 7 years imprisonment.
The conduct relied upon with respect to each charge incorporates ‘rolled up’ offending, increasing the criminality involved. The sentencing exercise involves aspects of a distinct sentencing exercise with respect to the offending on each victim, although other sentencing considerations are of relevance collectively.
Background to the offending
The victims in this matter were not known to each other prior to the offending period in which the offending occurred, nor did either of them know the offender. On varying dates between 3 January 2023 and 14 January 2023, the offender and the victims were staying at a Tourist Park in Canberra. The victims, DF aged 15 years and BA aged 16 years, were visitors to the ACT and were staying at the Tourist Park with their respective families. The offender, then aged 18 years, was staying at the Tourist Park in this period. On the information tendered on sentence, this was for the purpose of attending Summernats. The offending: DF
On 12 January 2023, the victim DF met the offender while she was at the Tourist Park. They exchanged Snapchat handles and Instagram accounts.
They remained in the pool, talking and swimming, along with two other females that DF had met at the park, one being BA, and the other being an unknown female who was a little bit older than DF. The group talked about where they were from and what they were doing in Canberra. The offender told DF that he was 17 years old.
Act of indecency on a person under 16 years (CAN 2024/1541)
After being in the pool for a few hours, DF got out of the pool and was standing at the side of it. The offender grabbed her in an attempt to throw her into the pool. Whilst grabbing the victim, the offender repeatedly grabbed her breasts and her body. The first time he grabbed her breasts as he threw her in the pool, the victim thought it may have been a one-off mistake, however, the offender continued to grab her breasts in the pool, and she realised that it was not an accident.
When both the offender and DF were in the pool, the offender grabbed her wrists and attempted to place her hands on his penis. The victim was uncomfortable and explained that she did not want to do that whilst pulling her hands away from the offender. The victim later told police that she had bruising on her wrists from when the offender had grabbed her. She photographed these bruises on 13 January 2023. These photographs were not made available at sentence.
Later in the day on 12 January, whilst sitting in the spa within the pool area of the Tourist Park, DF, the offender, BA, and the unknown female made arrangements to sneak out of their accommodation later that night and meet up within the Park to “hang out”.
At about 11:00pm the same night, DF snuck out of the accommodation she was sharing with her parents and siblings, and made her way to meet the offender, BA, and the unknown female. On her arrival at the park area, DF saw the offender was the only one there, and she thought BA and the unknown female must have been running late or were coming a bit later. DF decided to stay and wait for BA and the unknown female and sat down on a bench near the park area with the offender.
DF explained to the offender that she was feeling a bit cold as she was wearing only her pyjama shorts and a hooded jumper. At this time, the offender slid towards her on the bench and started cuddling her. DF became uncomfortable and did not know what to do, and she felt like she had frozen.
The offender continued to hold his arms around DF and began staring at her. DF looked at the offender’s face as she saw his face coming closer to hers to initiate a kiss on her lips. The offender asked DF, “can I kiss you?”. She said “no” as she did not want to kiss the offender.
The offender kept moving closer to DF and started to climb on top of her. He lent his body weight against the victim and she felt like she could not push him off. He kissed DF on the mouth. The victim was scared, and had again froze because she did not want to be at the park or kissing the offender. After a short time of the offender kissing her, DF began kissing him back as she did not know what else to do.
Whilst kissing DF, the offender moved her down so she was laying more on her back instead of sitting up, with his full body weight laying against her.
Sexual intercourse with a person under 16 years (CAN 2024/ 1543)
In a state of shock and panic, DF walked over to the picnic table and followed the instructions given to her by the offender. He told her to lay down on the table. He then began pulling down her pyjama shorts and underpants. DF froze and did not know what else to do and wanted it to be over.
After the offender had removed her clothing, he inserted his finger into DF’s vagina. DF was telling the offender “stop”, “no” and “I don’t want to do this”. The offender started to tug at his shorts and pulled them down to his mid-thigh with one hand, whilst continuing to insert his fingers into DF’s vagina.
The offender withdrew his fingers from DF’s vagina and inserted his penis. DF felt immediate pain and discomfort. She continued to tell the offender “no”, “I don’t want to do this”, and she began to cry. The offender responded, “shut up” and “lay back”. The offender continued to thrust against DF’s vagina for approximately 10 minutes.
After this time, the offender had not ejaculated and DF had become more upset, she was crying and continued to beg for the offender to stop. The offender withdrew his penis from her vagina, and he pulled his shorts back up.
The offender instructed the victim to sit back up. She moved herself to a seated position on the picnic table with the offender standing in front of her. He told her to move towards him so he was close enough to begin cuddling her as she was crying. While cuddling DF, the offender stated, “you brought that on yourself”, “you deserved it”, “it’s your fault I didn’t cum”, and “don’t be a bitch about it”. The offender became annoyed with the victim as she continued to be upset and asked to go home. The offender said “okay, fine you can go”.
The facts provide that, at the time, DF had no sexual experience, and she thought this is how sex should be.
DF re-dressed herself in her underpants and pyjama shorts and walked to the shared toilet block adjacent to her accommodation. She went into a toilet cubicle and pulled down her clothing. She saw blood staining on the gusset area of her underpants. DF became concerned about pregnancy and sexually transmitted infections as the offender was not wearing a condom during the intercourse.
After cleaning herself up in the toilet, the victim returned to her accommodation and went to bed. The following morning, on 13 January 2023, DF woke and noticed bruising to her wrists and the rear of her upper thighs. She took photographs of these injuries. These photographs were not made available at sentence.
The victim did not initially disclose to anyone what had happened. She came to disclose the incident to her partner about a week after the incident, and then to her mother on 30 March 2023.
On 9 April 2023, DF reported the matter to police in her home state. She provided police with a screenshot of the offender’s Instagram profile. She also attempted a pre-text telephone call with the offender, using the Instagram call function. This call was not answered by the offender. A short time later, DF saw that she was blocked from the offender’s Instagram page.
Nature and circumstances of the offending: DF
The offending comprised serious examples of what are already considerably serious offences. There were aspects of violence in the offending beyond the inherent nature of violence that is involved in such offences. Whilst this was not in the form of direct physical or threatened violence, or the use of weapons, the offender’s size and the positions he utilised, along with verbal responses to the victim that were aggressive in nature, elevate the seriousness of the offending. There are concerning aspects of intimidation and control in the offender’s behaviour, and aspects of the offender having degraded and demeaned the victim.
He initially engaged with the notion of consent to kiss the victim, although not before he cuddled her, and he entirely disregarded her response to his enquiry as to consent to kiss her. It is difficult to decide whether it is worse that he sought consent, and ignored the victim’s response, or that he did not seek consent at all. It matters little either way. The victim was below an age to consent to sexual activity with him, and he completely disregarded any respect for the victim, and the community, in this regard. The victim expressed repeated verbal protests and her demeanour exhibited her distress, yet the offender callously took advantage of her. He did so in a brazen manner, committing the offence in public, for what was a protracted period of time.
The victim was in the vulnerable position of being isolated given the time of night, and was in an unfamiliar environment. It was a place where she was entitled to feel safe and to enjoy her holiday with her family. Instead, she experienced a destruction to her innocence. While the age disparity between the offender and the victim was not significant, it was still a difference of some three years, and the offender was in a position of strength and power in relation to the victim.
There was a level of predation to the offending, with the offender being deceptive as to his age in talking with DF and his pursuit of her. It was mostly opportunistic offending and not premeditated, but this must be considered in the context of the pursuit of the victim throughout the day of the offending. Further, the forensic psychologist finds from the statement of facts that the offending involved “attempts to gain compliance of the victims through the use of coercive physical and psychological behaviours (e.g., arguing and using threats)”. I agree with this finding.
The sexual intercourse offending exposed the victim to the risk of pregnancy and sexually transmitted disease in not using a condom when he penetrated her. While the risk of pregnancy was reduced as he did not ejaculate, despite desiring to do so, this risk was not eliminated. His conduct was entirely directed towards achieving his own sexual gratification with little regard or concern for the bodily autonomy and welfare of the victim. He did so with multiple forms of penetration, the offence being a ‘rolled up’ offence.
Effect on the victim: DF
It is uncontroversial that offending of this type has significant impacts on the individual victims involved and their families. This is borne out in the victim impact statements presented in relation to the offending on DF.
The victim of this offending observes that, while the sexual assault was a physical act, the impact on her has been not only physical, it has also had a social and mental toll. Before the offence, she was a happy and confident person who felt safe in her surroundings. The assault has taken that away from her. It caused her to feel shameful and not feel comfortable in her own skin. DF describes that she has felt like a part of her, her innocence, was taken. She has experienced immense anxiety and panic, and her participation in daily activities has been impacted. She has experienced flashbacks and nightmares.
The victim now struggles to trust others, her perspective of the world having been destroyed. Reflective of the strength the victim-survivor exhibits, DF expresses that she is working through the healing process and attempting to move forward. The assault had a major impact on her teenage years, but she refuses to let it further affect her life. She poignantly reflects on the importance of speaking out.
DF’s mother provided an impact statement detailing her experiences and those of her family. She is left with thoughts and feelings of anger, rage, sadness, and disgust for what happened to their little girl. What was meant to be an enjoyable family holiday has been tainted by the offender’s conduct. DF’s mother describes the unquantifiable impact of the offending on herself, carrying anger and guilt about what happened, causing increased worry, stress and anxiety about keeping her daughter safe. It breaks her heart to see the effect on her daughter, and she describes that her daughter and her family “have been living the nightmare of what blatant, repulsive disrespect to women and girls looks like”.
DF’s father also provided an impact statement in which he expresses the irreparable harm on his daughter and their entire family. It has been devastating and caused psychological impacts and sleepless nights. As parents, they have experienced a feeling of failure to protect their daughter. DF’s father describes that his daughter’s innocence and trust were brutally taken away and that all of their lives will never be the same.
The offending: BA
On 9 January 2023, after arriving at the Tourist Park, BA and her family went to the pool area. Whilst BA was walking towards the pool, she was on the phone to her boyfriend. She remembers seeing the offender riding around on an electric scooter. As she walked past the offender, she saw him stop and stare at her. BA brushed it off at the time and thought that the offender was weird.
BA continued to the pool area and started swimming with her brother and family. After a short while, she noticed that the offender and an unknown male had sat near to where BA and her brothers were playing in the water.
After about 20 minutes, the offender and the unknown male started a conversation with BA and her brother. BA and the offender talked about where they were from, with the offender telling BA that he was from a small town near Sydney. The offender asked BA if she had a boyfriend and if she would like to sneak out and meet him at about 11:00pm or 12:00am that night. BA said that she would not as she did not want to be out that late. After talking for about half an hour, the offender offered BA some alcohol, to which she said no and left the area.
About 7:30pm the same day, BA returned to the pool with her brother and saw the offender and the unknown male. The offender started talking to BA and was being friendly. He added BA as a contact on the Snapchat application. After sitting and talking with the offender for a while, BA entered the pool along with the offender.
Act of indecency without consent (CAN 2024/7426)
The offender and BA were swimming around in the water when the offender swam up behind her. He grabbed her under the arms and used his hands to touch and squeeze her breasts, causing her to feel immediate discomfort. Whilst still holding her under the arms, the offender threw her across the water.
BA asked the offender to stop and said that she did not like it, and she swam away from the offender. The offender said, “if you don’t face me I’ll unclip your bra and take it”. BA said, “don’t do that, I would not enjoy that at all”.
Despite attempting to avoid the offender, the offender continued to touch the breasts of BA and throw her across the water. After becoming increasingly uncomfortable, BA and her brother left the pool area and returned to their accommodation.
BA felt scared of the offender and was not sure what he was going to do to her. She found it difficult to sleep that night as she was thinking about whether the offender meant to hurt or scare her. The following morning, BA saw bruising to her underarms where the offender had been grabbing her the previous evening.
On the following day, BA and her family returned to the pool area late in the afternoon. BA saw that the offender was at the pool area again, but the other male that had been with him was gone.
After swimming for a while, BA’s father and siblings left the pool area, leaving BA with her brother. At this time, the offender swum up to BA and grabbed her by the arm with tight pressure. He held her under the water and again grabbed her under the arms and threw her across the water in the pool.
BA asked the offender to “stop”, however, he ignored her requests and continued to grab her, touch her breasts and her buttocks and threw her across the water by grabbing under her underarms. BA and her brother left the pool area a short time later and returned to their accommodation for the rest of the evening.
The following day, while out sightseeing, BA’s brother was insistent that BA send the offender a message via Snapchat asking him to come for a swim later in the afternoon. BA messaged the offender on her brother’s behalf as she did not want him to become friends with the offender on Snapchat.
At about 3:00pm, BA and her brother arrived at the pool. The offender was already in the bar located in the area and he was drinking a beer. BA and her brother went and sat in the spa and, after a short time, they were joined by the offender.
As the offender started speaking to BA and her brother, BA got up and walked to the bathroom area within the pool complex. On entering the bathrooms, BA began having a panic attack. She did not understand what was going on and has limited memory of events after, including returning to her accommodation.
Nature and circumstances of the offending: BA
The offending against BA also involves aspects of seriousness. It also occurred in public, in a place where the victim was entitled to feel safe with her family. Instead, she was pursued by the offender, being an adult two years older than her. The offender was not deterred by the presence of others.
The prosecution did not press that the “s 10 [of the Crimes (Sentencing) Act 2005 (ACT)] threshold” was crossed in respect of this offence. That is, it was not pressed that the Court would be satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate: s 10(2) Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). On behalf of the offender, it was accepted that the s 10 threshold “is crossed in these matters”, but it was not conceded that only fulltime custody was appropriate, particularly for the act of indecency matters. I disagree with the parties in this regard. A term of imprisonment, with fulltime custody to be served, is the only appropriate sentence for the offending against BA.
The offence against BA was a ‘rolled up’ example of the offence involving touching to the breasts and buttocks over a period of days. The victim sustained bruising from the conduct during the course of the offence. As with the offending against DF, there are aspects of predation in the offender’s pursuit of the victim, offering her alcohol and being persistent in his pursuit of her. The victim verbalised her protests to the offending behaviour, and the offender ignored and disregarded her. There were multiple occasions of touching the victim. While it appears that the victim was clothed, this was in a swimming pool environment such that the victim was more likely to have been in an exposed state of dress from at least the exposure of water to her clothing, and this was taken advantage of.
In imposing the sentence with respect to this offence, the totality principle is of application. In order to give effect to the distinct victim and the offending, I consider an entirely cumulative term of imprisonment is appropriate. I do so conscious that a ‘crushing sentence’ is to be avoided, but nonetheless, sentences that reflect the gravity of the offending are to be imposed.
Effect on the victim: BA
The impact on the victim BA has also been made plain by victim impact statements.
BA describes how, at the time of the offending, she was a child with so much life and freedom. Since the offending, she has struggled with so many different things and she no longer feels joy and happiness in her life. She suffers nightmares and experiences what she describes as the offender’s “disgusting smile” looking back at her every time she closes her eyes. She cannot escape the feeling of the offender’s touch, it being burned into her brain.
BA has had suicidal thoughts, self-harmed, and has been diagnosed with mental health conditions. She no longer wants to talk to people, does not trust people around her, and experiences difficulty eating and getting out of bed. She is socially isolated and angry at the world. BA became unable to handle the stress and pressure of her hairdresser apprenticeship. She came to drop out of school and her apprenticeship. She feels like every dream of her future was leaving her and she is so lost, having lost her identity. BA describes being a shell of the person she was once and wishing that she could go back in time. She wants her childhood back. She carries the pain, fear and emotional scars of the offending. BA describes that she is deeply struggling to find a way to heal, and to rebuild what was taken from her.
Her parents also speak of the impact on the trajectory of their daughter’s life. It has had a devastating impact on their daughter, taken a relentless emotional toll, and shattered them as parents. The entire family has been impacted, including BA’s siblings. Their daughter’s light has been dimmed, and she has become a shell of the person she once was. BA required inpatient treatment, far away from home, and her education suffered immensely. This stripped her of the opportunities she had envisioned for her future. BA struggles to find a path forward and the family are in a constant stage of vigilance to ensure her safety. As parents, they have suffered guilt, helplessness and a feeling of not having protected their daughter. They have felt rage, frustration and heartbreak at both the offender and the delays in the legal process. They express that, no matter how much they love their daughter, they cannot erase what was done to her. It was a crime that did not just take away a moment from their daughter’s life, but it took away her sense of security, her future, and her ability to live freely.
The Court acknowledges this impact, as it does with respect to DF, and can only offer an assurance that these impacts have been heard and understood by the Court. The effect on the victims and their families will be taken into account in sentencing: s 33(1)(f) Sentencing Act.
Arrest of the offender
Subjective circumstances
The offender is now 20 years and 10 months of age. He was aged 18 years and 6 months at the time of the offending. His subjective circumstances are set out in an intensive correction order (ICO) assessment report dated 26 March 2025 and a forensic psychological report of Dr Douglas Boer dated 15 March 2025.
He was born in New South Wales (NSW) and is an Aboriginal man with limited connection to his culture. He was one of four children to his parents’ union, having three sisters, and he experienced a stable upbringing within the family home. His family continue to be close, and he has positive relationships with them. Both his mother and father have provided references on his behalf. His mother speaks of her deep disappointment and upset by her son’s behaviour. She also speaks of his positive qualities, her hope for him to build a life, and confirms their commitment to support him. The offender’s father also speaks as to the positive qualities he sees in his son.
The offender has a partner of five months with whom he is expecting a child. This is his first serious relationship. He spends time at his partner and her parents’ residence, as well as residing with his own parents. His partner has provided a letter to the Court expressing that the offender is one the best people she has ever met, being a person who is giving, kind and open hearted. She says that the offender embodies honesty, responsibility and compassion, and he is dedicated to his family and friends. The offender’s partner expresses her concern as to the difficulty she will experience during her pregnancy if the offender is incarcerated and implores the Court to recognise the offender’s positive qualities and the family they are making, a family that she does not want to do alone. I take this into account in considering the submission made that hardship to the offender’s family arises in this matter: s 33(1)(o) Sentencing Act.
The offender completed his Year 10 certificate through TAFE, having left regular schooling due to bullying. He also reports difficulties in schooling in the context of his diagnoses of dyslexia, attention deficit hyperactivity disorder and oppositional defiance disorder. He completed trade college and worked through a mechanic apprenticeship. He has also worked in roles as a plumbing apprentice, a baker, a cattle worker, and in car detailing. He is currently employed as an apprentice mechanic and has stable finances.
The offender also experiences challenges with anxiety, stress and depression. He reported to Dr Boer, the psychologist, that he was “suicidal due to guilt” regarding the offences. As a result, he was placed on antidepressants for “anxiety and stress”. The psychologist finds that the offender meets the diagnostic criteria for major depressive disorder, although the offender’s self-reporting was such that he was not suffering from this at the time of the offending. The psychologist finds that the offender is a moderate risk for suicide, with situational stressors such as incarceration increasing that risk.
Criminal history
The finding of suitability in the ICO assessment report needs to be understood with reference to its inclusion that the offender has “nil prior documented criminal history”. It does find that “NSW Policing have confirmed prior traffic and transport offences”. This appears to be a misunderstanding, and gives pause as to the conclusions reached in the assessment report.
The information before the court establishes that, while the offender does not have a criminal history in the ACT, he was sentenced in NSW on 16 December 2022 for an offence of ‘drive recklessly/furiously or speed/manner dangerous’ committed on 22 June 2022. The order made was a conditional release order without conviction for a period of 18 months. He was ordered to continue to engage with counselling. The offending here was therefore committed while the offender was on conditional liberty, which is an aggravating factor on sentence. It was not for offending of a similar type to the index offending, but the offending occurred within one month of that order being imposed. This gives pause as to the offender’s prospects of complying with any community-based order. I accept though, as submitted on the offender’s behalf, that the absence of any previous convictions of the type the subject of sentence enables a degree of leniency.
Remorse and insight
As the prosecution submitted, the reason for the offending is somewhat inexplicable. Dr Boer opines that drinking, immaturity, lack of supervision, the offender’s compromised ability to manage his sexual urges and his prior history of sexual assault combined to lead to the offending. As the prosecution also submitted, the combination of many of these factors is not unique to the offender, nor does it typically result in the commission of serious criminal offences. The protracted offending, against two victims over a period of days, is not clearly explained by an inability for a young adult male to suppress sexual urges.
Nonetheless, despite the absence of a clear explanation for the offending, the offender does demonstrate remorse and insight as to the seriousness of the conduct, and the harm that it has caused. This is informative as to the prospects of rehabilitation.
The ICO assessment report records that the offender mostly agreed with the statement of facts but that the offender did not wish to dwell on the events. He is described as acknowledging that there are several parties affected by the events, including the two victims, their families, and his own family.
The forensic psychologist describes the offender as having a considerable amount of remorse for his offending. The offender, to his credit, does not attribute the offending to his alcohol consumption, but describes it as having been “bad judgment”. The psychologist finds that the offender did not attempt to evade responsibility for his offending behaviour, and he did not attempt to minimise his offending behaviour.
Pleas of guilty
Pleas of not guilty were initially entered when the offender first appeared before the Court in April 2024. In September 2024, pleas of guilty were indicated and in October 2024, pleas of guilty were entered and the matters were committed for sentence in the Supreme Court. They were not the earliest pleas of guilty, requiring preparation of a brief of evidence and impacting victims who would have experienced a period of apprehension from the court process.
On behalf of the offender, it was submitted that the Court could consider a reduction of 25 per cent given the early stage in the proceeding when the pleas of guilty were entered. The prosecution submitted that the offender was not entitled to an additional benefit from pleas to negotiated charges (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103), and that s 35(6) of the Sentencing Act dictates that a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. I agree with the prosecution, and assess the appropriate reduction to be in the order of 20 per cent.
Current sentencing practice and patterns
While acknowledging the limitations that authorities said to be comparative provide, both parties assisted with authorities relevant to current sentencing practice and patterns: ss 33(1)(za), 34A Sentencing Act. I have considered the authorities provided, noting that where the prosecution provided the Supreme Court authority, I have preferred the Court of Appeal decision where one is available.
The authorities relied upon by the prosecution involve, in brief: (a) R v Aroub [2017] ACTSC 187, in which a 25 year old offender, who met the victim in a nightclub, digitally penetrated the victim while she was asleep in what was “impulsive, brief” conduct (at [17]). An act of indecency also occurred, involving kissing the victim between the shoulder blades. A maximum penalty of 12 years applied to the offence of sexual intercourse without consent and there was a conviction after a trial. Two years imprisonment, suspended after six months, was imposed for the sexual intercourse without consent. A period of two months imprisonment was imposed, concurrently, for the act of indecency. With respect to the act of indecency, Murrell CJ observed that “an act of kissing or touching a genital area or the breasts generally involves a more significant violation than that which occurred in the present case” (at [18]). (b) R v Buda-Kaa [2013] ACTCA 46 involved acts of digital penetration of the vagina, touching of the right breast, and trying to touch the victim’s genitalia. The offender and the victim were known to each other. There was no physical violence involved. The offender had schizophrenia and a significant criminal history. A Crown appeal against sentence was dismissed for the imposition of 3 years imprisonment for the act of sexual intercourse without consent and 9 months imprisonment for each act of indecency. The Court of Appeal observed that the sentences imposed were “lenient” (at [29]). (c) Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 involved an act of sexual intercourse without consent between an adult victim and offender who were in an intimate relationship. The offender digitally penetrated the victim. A maximum penalty of 12 years imprisonment applied. A head sentence of two years and six months imprisonment was imposed, to be served by way of an ICO. The Court of Appeal found the sentence was not manifestly inadequate, but that “in directing that the sentence be served by way of ICO, the trial judge imposed a lenient sentence” (at [78]). (d) R v Finau (No 2) [2020] ACTSC 193, in which the offender was found guilty after trial for an offence of sexual intercourse without consent, carrying a maximum penalty of 12 years imprisonment. The offender and victim were known to each other as acquaintances and returned to the home of the victim. In a circumstance with physical force and despite repeated protests by the victim, the offender engaged in non-consensual intercourse without a condom for a period of less than a minute. The offender was aged 24 years and was otherwise of “impeccable character” (at [21]). A sentence of two years and six months imprisonment, suspended after nine months, was imposed. (e) DPP v Hudson [2023] ACTSC 333 involved an offender who was found guilty after a trial of nine charges. The offences were a course of conduct committed against a sex worker while the offender was engaging her services at a brothel. There were acts of forced fellatio and digital penetration. A head sentence of 4 years and 9 months imprisonment, with a non parole period of two years and six months, was imposed. The Court found that an ICO was not open to be imposed on the offender, observing that “it is a fundamental principle of sentencing, that the sentences should reflect the objective gravity of an offender’s conduct. Nothing less than a sentence of imprisonment involving actual custody would reflect that fundamental principle in the circumstances of this matter” (at [66]). (f) R v Versteeg (No 2) [2020] ACTSC 273 involved a 27 year old offender who engaged in non-consensual penile–vaginal intercourse with the victim after initial consensual sexual activity. The victim and the offender had known each other a short time. The victim had made clear that she was not willing to engage in sexual activity and there was a “degree of physical forcefulness” (at [14]). The starting point for the offence of sexual intercourse without consent, carrying a maximum penalty of 12 years imprisonment, was two years and six months imprisonment, suspended after eight months.
Child sex offender’s register
The psychologist finds that there would be numerous potential impacts on the offender if he was placed on the child sex offender register. The offences committed by the offender are such that this outcome is inevitable: Crimes (Child Sex Offender) Act 2005 (ACT).
On behalf of the offender, it was submitted that this was a factor of significance in this matter that is capable of amounting to extra-curial punishment: DPP v Timosevski [2024] ACTSC 205 at [23]; R v Ardron [2021] ACTSC 91; R v FI [2017] ACTSC 190. The prosecution accepted that the Court could consider the matter with reference to what was said in those authorities, and in TMTW v The Queen [2008] NSWCCA 50 at [53]. In accordance with these authorities, I accept that the inclusion on the register is capable of being extra-curial punishment, but it remains that each case is to be considered on an individual basis.
As to the potential impacts on this particular offender, it is speculative that his employment prospects will be significantly impacted, although his young age does increase the prospect of this. Dr Boer describes there being a prospect of negative impacts from the requirement to report during working hours, with this being potentially disruptive to the offender’s apprenticeship due to an unacceptable use of working hours leading to losing his position. This potential impact appears to me to be completely speculative. Dr Boer does though further describe a problematic impact being that police are likely to visit his home as part of monitoring, and this has the potential to disrupt his relationships with his partner and family.
I accept that the last of these is informative in assessing the hardship to the offender’s family (s 33(1)(o) Sentencing Act), and I will take into account the inclusion of the register in respect of this.
Consideration
Despite the finding of unsuitability for an ICO, such an order was pressed on the offender’s behalf. I accept that a finding of unsuitability is not an impediment to the Court still making such an order. It was submitted that, in the alternative, the Court impose a fully suspended term given the offender’s prospects of rehabilitation and other mitigating circumstances.
Even though the individual sentences that will be imposed do not preclude the availability of an ICO as a sentencing option, I do not regard an entirely community based form of imprisonment to be appropriate. The seriousness of the offending, particularly that of the sexual intercourse committed on DF, involves a gravity that results in such an order being inappropriate. It would not involve adequate punishment for the offence in a way that is just and appropriate. This was a serious example of intercourse on a young person. Sentences that reflect denunciation, deterrence, and the harm done to the victims requires fulltime imprisonment in this matter.
In so concluding, I have carefully considered whether, when the offending against BA is considered in isolation, a fulltime period of imprisonment is warranted. I have concluded that it is. There are also aggravating features in that offending that warrants this.
Nonetheless, I accept that there are matters in mitigation that reflect a need for the offender’s period in custody to be moderated.
With reference to the offender’s age, and the applicable sentencing principles in this regard (see Azzopardi v R [2011] VSCA 372; 35 VR 43 at [34]; and e.g., DPP v Malibe [2024] ACTSC 43 at [2]; R v Forster-Jones (No 2) [2019] ACTSC 286; R v Collins [2018] ACTSC 127 at [40]; R v Haddara [2018] ACTSC 70 at [46]), it was submitted that the offender is to be regarded as a “youthful offender”. I accept this. It is plain from the age he was at the time of the offending, and additionally, Dr Boer describes the offender as “somewhat immature for a 20-year-old”.
As to hardship to his family, the prosecution accepted that the offender’s partner and their unborn child will experience hardship from the imposition of a custodial term on the offender. In this regard, the prosecution drew the Court’s attention to what was said in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [82]: [I]t seems to me that the approach that should be taken is that the effect of a sentence on the family and dependants of the offender should be taken into account, but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequence of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed.
In summary, the offender’s youth, the hardship to his family, his prospects of rehabilitation (see above at [81], [82], [84], [88]) and his mental health condition (see above at [78]) are particularly informative in the determination as to when, and how, he will be released from custody. The risk of reoffending, however characterised, is manageable with supervision under a good behaviour order that is attached to the deterrent effect of a suspended term of imprisonment. Nonetheless, that period must also still give effect to other sentencing purposes, just as those factors have also informed the head sentences to be imposed.
Orders
I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 10 July 2025
DPP
Marquet [2025] ACTSC 183
At this time, the offender spread open DF’s legs and positioned himself on top of her between her legs. As the offender continued to kiss DF, he began to grind against her vagina. The offender and DF remained clothed at this time. DF told the offender “no” and “stop”, and that she did not want to do this and only wanted to be friends.
DF became more frightened of the offender and felt like he was not listening to her pleas to stop whilst he kept grinding against her vagina. She felt that the offender was so much stronger than her, and after hurting her when he was grabbing her in the pool earlier, she became concerned as to what he would do to her at this time.
The offender continued to kiss and grind against the victim’s vagina for approximately 10 minutes before he stopped as the wood was hurting his knees. At this time, the offender said, “Let’s move over to the picnic table”. DF, being frightened and in a state of panic, followed the instructions given to her by the offender.
Police investigations were conducted. The victim’s mother recalled that, during their stay in Canberra, she had seen two bruises on the front of DF’s legs in the same spot above her knees. DF had told her that they were from climbing out of the pool. Police also spoke to the victim’s partner whom she made a complaint to. She initially described that, whilst she was at the pool, a drunk guy came and started touching her inappropriately and then she later explained that she was raped.
The offender was identified from the information provided by DF and the matter was referred to the ACT Criminal Investigation Sexual Assault and Child Abuse Team.
The act of indecency with respect to DF also involves concerning aspects of seriousness. It was also persistent, protracted, and reflective of aggressive behaviour. The physical force involved in this offending resulted in bruising to the victim. It involved conduct of kissing while the offender had his full bodyweight laying on the victim, as well as grinding against the victim while she protested. While there was not ‘skin to skin’ contact in relation to that act, the offence is also one that is ‘rolled up’, involving touching the victim to her breasts, kissing her and attempting to have the victim place her hands on his penis. It was conduct that commenced during the day, and continued until immediately before the act of sexual intercourse.
I am satisfied that imprisonment is the only appropriate penalty in respect of both offences committed against DF. A level of concurrency is appropriate to reflect that the offending occurred during the course of one incident.
The next day, BA was again at the pool when she saw the offender talking to a female who was later identified as DF. BA and her brother approached the offender and started a conversation.
A short time later, BA’s brother and the offender went in the pool, with BA and DF remaining on the side of the pool talking. BA asked DF if the offender had been doing anything “weird” as he had been making her feel uncomfortable. DF replied that he had been making her feel uncomfortable also. At this time, BA and DF shared Snapchat contact details so they could talk about the offender and what he had been doing to them.
Later in the evening, BA returned to her accommodation and she rang her boyfriend and told him what the offender had done to her. She left the ACT with her family the following day.
In June 2023, BA disclosed to her mother what had occurred. Police spoke to BA on 16 July 2023. Police conducted investigations and obtained evidence as to the complaints made to others by BA. BA’s boyfriend tried to contact the offender after what he was told, but the offender blocked him on social media.
Dr Boer also concludes that the offender would “very likely experience” greater hardship in custody than someone without his mental health issues and history of trauma. He opines that the offender has reached a stable point in his life and that incarceration would be disruptive to the protective and risk-reducing factors available to him.
On the offender’s behalf it was submitted that limbs five and six of Verdins (R v Verdins [2007] VSCA 102; 16 VR 269) are of application in this matter. That is, that the existence of major depressive disorder may mean that a custodial sentence will weigh more heavily and that there is a serious risk of imprisonment having a significant adverse effect on the offender’s health. It was submitted that this was mitigatory as to punishment. The prosecution accepted the finding made by the psychologist in this regard, but submitted that the offender’s present mental health issues are unlikely to be uncommon experiences for others in similar situations. I accept this, but am satisfied that limbs five and six of Verdins are established in circumstances where the offender’s mental health is to be considered in the context of his age and his not having yet experienced any period in a custodial setting. I consider this to be particularly informative as to the appropriate period to be spent in custody, and that it tends towards an order that involves certainty as to a release date.
The offender has received treatment for mental health in the past and is under the care of a general practitioner in this regard. He has voluntarily engaged in online “sexual activities courses” and is willing to do a sex offender treatment program in the future. The offender is described by the psychologist as being aware that he needs ongoing access to mental health services, and he hopes to re-engage with a previous therapist. It appears that the offender has not maintained consistent engagement in mental health supports.
[Redacted]. This is something the offender reported as coming up in counselling when he was previously engaged with mental health support. The offender did not report that his offending was due to this trauma. This information formed part of the information relied upon by the psychologist in conducting an actuarial test for the assessment of sexual violence risk exhibited by the offender. The psychologist also had regard to the offender’s criminal history (see below at [86]).
The psychologist concluded that, having also taken into account protective factors available to the offender, with reference to the Static-99R assessment measure, the offender is a “moderate to high” risk for sexual offending in terms of the level of supervisory effort and intervention needed to prevent further sexual offending. This finding is impacted by the instrument used, which is “somewhat biased” due to the offender’s youth. With reference to the SVR-20 V2 assessment measure, the offender was assessed as being a “low to moderate” risk in terms of his treatment and supervision needs, “low to moderate risk” for serious physical harm to others in the future, and “low risk” of imminent sexual offending against another victim.
Dr Boer concludes that the offender’s overall level of risk for sexual reoffending is best seen as “moderate”, and that his risk of general reoffending is “low”. Dr Boer opines that, “if granted a community disposition, his continued supervision and intervention for relapse prevention and risk management in the community would seem adequate to reduce any risks that remain present for sexual reoffending in his case”. Dr Boer recommends that the offender would benefit by engaging with a sex offender treatment program.
The offender reports limited alcohol use, although acknowledged that he was under the influence of alcohol at the time of the offences. He enjoys car related activities in his spare time, and has a small friendship circle of pro-social peers.
The ICO assessment report finds the offender suitable for an ICO, although finds that he is suitable for a low level of supervision with ACT Corrective Services. He is found by Corrective Services, with reference to a STATIC-99R assessment, to have an above average risk of sexual re-offending. It is concluded though that, given the offender’s residence is over five hours away from the ACT, there would be an inherent difficulty in compliance with the order. Corrective Services find that this circumstance may make the administration of an ICO, or the offender’s compliance with such an order, impracticable. On behalf of the offender, it was submitted that he is willing to engage in the transport required to comply with an ICO.
None of these authorities involve the offence provision under consideration here. Nor do any of the authorities involve a youthful offender. There is also a distinction as to the relationship between the victims and the offenders in those matters, and a distinction as to the age of the victims.
The prosecution also provided Okwechime v The Queen [2023] ACTCA 25 which I consider to be of more comparative assistance, albeit it still involves an offence provision carrying a maximum penalty of 12 years imprisonment and an offender who is not described as “youthful”. The offender was convicted after a trial of two offences of sexual intercourse without consent. One involved an act of cunnilingus and the other penile–vaginal penetration. A sentence of four years was imposed with respect to the penile–vaginal conduct, an act which continued for 15 to 20 minutes. The complainant was protesting. The appeal against sentence was dismissed.
On behalf of the offender, the following authorities were provided: (a) R v Dickerson [2016] ACTSC 337, in which a 25 year old engaged in an act of sexual intercourse with a person under 16 years, carrying a maximum penalty of 14 years imprisonment. The 15 year old victim was digitally penetrated, amongst other sexual acts by her employer. After a reduction of 25 per cent for the plea of guilty, a wholly suspended term of 12 months imprisonment was imposed, with a condition to complete 300 hours of community service. The prosecution drew the Court’s attention to a more recent decision of the Supreme Court that has considered offending by an employer where acts of indecency were committed: Agarwal v Coutts (No 2) [2024] ACTSC 92. (b) R v Atai [2020] ACTSC 335 involved a 14 year old victim and an offence of sexual intercourse with a person under 16 years. The 26 year old offender engaged in an act of penile–vaginal intercourse in circumstances of a “true sense of affection” between the offender and the victim (at [6]). There was not predatory conduct. The starting point for the sentence was 20 months imprisonment, to be suspended after five months. (c) R v ED [2018] ACTSC 366 involved a 13 year old victim who was digitally penetrated, with an act of attempted penile–vaginal intercourse, by an 18 year old offender. The offender was a “brother” figure to the victim. A sentence of imprisonment would cause hardship to the offender’s family. The offender was convicted after a trial, and a sentence of 12 months imprisonment was imposed for an offence of sexual intercourse with a person under 16 years. An act of indecency also occurred, involving grabbing the victim on her bottom and breasts, for which three months imprisonment was imposed. The total sentence was 18 months imprisonment, suspended after six months. (d) DPP v Cook [2024] ACTSC 379 involved a 21 year old offender and a 14 year old victim. There was an act of penile–vaginal intercourse, being an offence of sexual intercourse with a young person under the age of 16 years. The offender suffered severe cognitive impairment and associated disabilities. A sentence of 1 year and 17 days imprisonment was imposed, to be served by way of an ICO. The prosecution had submitted that an ICO was the more appropriate means of sentence in the circumstances of that case.
I found these authorities, generally, of more comparative assistance than those provided by the prosecution, and I observe from them that there are examples of sentences with imprisonment not involving full-time custody for sexual offences involving adolescent victims. This is also borne out by the authority relied upon by the defence of DPP v Ierfone [2025] ACTSC 60 at [64]-[65] and the authorities cited therein. Nonetheless, there are also examples in the authorities where fulltime custody has been imposed. All of these authorities ultimately provide a reminder of the role of individualised justice in the sentencing exercise.
The prosecution initially submitted, with reference to s 65(2) of the Sentencing Act, that the effective term of imprisonment to be imposed meant that a nonparole period was mandatory. As I understood the submissions, it was, however, ultimately submitted that s 65(6) of the Sentencing Act meant there was no such requirement and that a partially suspended sentence was an available sentencing option: s 12 Sentencing Act. The defence submitted that it would be consistent with authority to order release at an early stage given the matters in mitigation.
Further, on behalf of the offender, it was submitted that the Court should consider an element of mercy in the sentencing exercise: DPP v Wade [2024] ACTSC 392 at [115]-[124]. I do not find that this is an occasion for mercy. There is no compelling subjective circumstance, within the context of the gravity of the offending that occurred, that warrants this.
This was considerably serious offending that has caused grave harm to two victims and their families. The denunciation of such conduct, and deterrence and accountability, have prominence in the sentencing exercise. Nothing less than stern head sentences and a not insubstantial period in custody, reflective of the matters in mitigation, is warranted. Thereafter, the offender will be subject to supervision, consistent with the need for promotion of rehabilitation and community protection to be reflected in the sentences imposed.