DPP v Matas [2024] ACTSC 234

Legislation Cited: Crimes Act 1900 (ACT) ss 24(2), 26, 26(2), 28(2)(a), 52(2), 53(2), 54(2), 61B(1)(a), 72C, 160 Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2)(g)(iii), 19(1), 19(3), 19AC(1)(b), 19AC(3), 19AC(4)(b), 19AJ, pt 1B, Criminal Code 1995 (Cth) s 474.17(1) Criminal Code 2002 (ACT) s 44 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) sch 8 item 1 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 33(1)(a), 33(1)(i), 33(1)(j), 34B, 35, 35(2), 35(4), 65, 66 Family Violence Act 2016 (ACT) Prohibited Weapons Act 1996 (ACT) s 5 Cases Cited: Aslan v The Queen [2014] NSWCCA 114 Baumer v The Queen [1988] HCA 67; 166 CLR 51 Brown v The Queen [2020] VSCA 212; 62 VR 491 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 Caristo v The Queen [2011] NSWCCA 7 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 Deakin v The Queen [1984] HCA 31 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Vic) v Mokhatri [2020] VSCA 161 DPP v Ayoub (No 5) [2023] ACTSC 140 DPP v Deighan (No 2) [2023] ACTSC 295 DPP v Doughty [2023] ACTSC 397 DPP v Druett [2024] ACTSC 56 DPP v Gleeson (No 2) [2022] ACTSC 311 DPP v Hudson [2023] ACTSC 333 DPP v Moala (No 3) [2023] ACTSC 306 DPP v Muell [2024] ACTSC 184 DPP v O’Connell (No 5) [2024] ACTSC 17 DPP v Rue [2023] ACTSC 270 DPP v Stewart [2023] ACTSC 252 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Edwin v The Queen [2014] ACTCA 47 Field v The Queen [2020] NSWCCA 105 Fleury v DPP [2023] ACTCA 46 Forster-Jones v The Queen [2020] ACTCA 31 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hudson v The Queen [2020] ACTCA 46 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Jackson v The King [2023] NSWCCA 121 Jurj v The Queen [2016] VSCA 57 Mammoliti v Callaghan [2022] ACTSC 259 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Morrison v Maher [2021] ACTSC 312 Morrison v Maher (No 2) [2022] ACTSC 63 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Mush v The Queen [2019] VSCA 307 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v the Queen [1997] HCA 26; 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Ashton (a pseudonym) [2022] ACTCA 45 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Bandy [2018] ACTSC 261 R v BC (No 4) [2021] ACTSC 119 R v BI (No 4) [2017] ACTSC 71 R v BNS (No 2) [2016] ACTSC 145 R v Bonfield [2021] ACTSC 362 R v Campbell [2017] ACTSC 74 R v Cole [2019] ACTSC 228 R v Cramp [2004] NSWCCA 264 R v Daley [2010] NSWCCA 223 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Engert (1995) 84 A Crim R 67 R v Finau (No 2) [2020] ACTSC 193 R v Fleury [2022] ACTSC 103 R v Fleury (No 2) [2022] ACTSC 293 R v GG [2017] ACTSC 137 R v Hancock [2021] ACTSC 52 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hudson [2019] ACTSC 110 R v Hutchinson [2018] NSWCCA 152 R v Irwin [2019] NSWCCA 133 R v Johnson [2005] NSWCCA 186 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kirkwood [2022] ACTSC 148 R v Knight [2005] NSWCCA 253; 155 A Crim R 252 R v Lindsay [2020] ACTCA 25 R v MA [2004] NSWCCA 92 R v MacDonald [2017] ACTSC 59 R v MAK [2006] NSWCCA 381; 167 A Crim R ·159 R v March [2023] ACTSC 28 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Miller [2015] VSC 180 R v NO (No 2) [2018] ACTSC 37 R v NX [2019] ACTSC 131 R v Ogochukwu [2004] NSWCCA 473 R v Okwechime [2022] ACTSC 233 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Palmer [2017] ACTSC 357 R v Park [2017] ACTSC 26 R v Pham [2015] HCA 39; 256 CLR 550 R v Pickering-Wilson [2022] ACTSC 353 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Redmond (No 2) [2022] ACTSC 295 R v Simpson (2001) 53 NSWLR 704 R v Smith [2021] ACTSC 114 R v Smith (No 2) [2022] ACTSC 246 R v Snowden [2022] ACTSC 186 R v Stanley [2015] ACTSC 322 R v Tonari [2014] NSWCCA 232 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Um (No 2) [2021] ACTSC 115 R v Van Ryn [2016] NSWCCA 1 R v Verdins [2007] VSCA 102; 16 VR 240 R v Wheeler [2000] NSWCCA 34 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Roberts v Smorhun [2013] ACTSC 218 Smith v The Queen [2011] NSWCCA 163 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 Parties: Director of Public Prosecutions A Matas (offender) Representation: Counsel J Melloy (DPP) J Purnell SC (Offender) Solicitors ACT Director of Public Prosecutions Aulich (Offender) File Numbers: SCC 271 of 2023 SCC 313 of 2023 Index Introduction ................................................................................................................................................................. 7 Agreed facts ................................................................................................................................................................ 8 Video 1 – 1 minute and 5 seconds - three charges of sexual intercourse without consent ....................................... 9 Video 2 – 1 minute and 43 seconds - two charges of sexual intercourse without consent and one charge of attempted sexual intercourse without consent .......................................................................................................... 9 Video 3 – 36 seconds - one charge of sexual assault in the third degree ............................................................... 10 Video 4 – four minutes and five seconds - one charge of sexual assault in the second degree and one charge of sexual intercourse without consent......................................................................................................................... 10 Video 5 – 17 minutes and 5 seconds - five charges of sexual intercourse without consent, two charges of sexual assault in the third degree, one charge of act endangering health (choking) and one charge of common assault .. 11 Video 6 - two minutes and 16 seconds – no charges ............................................................................................. 13 Common assault – 6 May 2023 – not on video....................................................................................................... 14 Assault occasioning actual bodily harm – 6 May 2023 – not on video .................................................................... 15 Capture intimate data – 6 May 2023....................................................................................................................... 15 Menace, harass or cause offence – 13 May 2023 .................................................................................................. 15 Distribution of intimate images – 14 May 2023 ....................................................................................................... 16 Arrest of offender – 16 May 2023 ........................................................................................................................... 16 Victim attends police station – 12 May 2023........................................................................................................... 17 Search of offender’s residence – 19 May 2023 ...................................................................................................... 17 Interviews ............................................................................................................................................................... 17 Escape arrest – 7 May 2023................................................................................................................................... 17 Possess prohibited weapon – 16 May 2023 ........................................................................................................... 18 Victim Impact Statement .......................................................................................................................................... 18 Objective seriousness .............................................................................................................................................. 23 Objective seriousness submissions ....................................................................................................................... 26 Conclusions as to objective seriousness ............................................................................................................... 38 Subjective matters .................................................................................................................................................... 45 Oral evidence of the offender .................................................................................................................................. 49 Remorse .................................................................................................................................................................... 53 Conditional liberty .................................................................................................................................................... 54 Reference from the offender’s sister....................................................................................................................... 54 Criminal History ........................................................................................................................................................ 55 Pleas of guilty ........................................................................................................................................................... 55 Time in custody ........................................................................................................................................................ 58 Hardship in custody ................................................................................................................................................. 59 Comparable cases .................................................................................................................................................... 60 Application of Bugmy principles ............................................................................................................................. 60 Mental condition / Application of the Verdins principle ......................................................................................... 64 Conclusion in relation to the application of Bugmy and Verdins principles........................................................ 71 Statutory and other relevant considerations .......................................................................................................... 72 Cth and ACT Offences: Recognizance Release Order/Non-Parole Period ........................................................... 76 Totality ....................................................................................................................................................................... 77 Sentence.................................................................................................................................................................... 79 Orders ........................................................................................................................................................................ 83 LOUKAS-KARLSSON J: Introduction

1. On 13 October 2023, Mr Matas (the offender) pleaded guilty to 23 offences in the ACT Magistrates Court. Overall, the offender stands to be sentenced for 25 offences. In light of the number of charges, and the extensive written and oral submissions to be considered, the judgment perforce will be relatively lengthy. Relevantly, as can be seen below, most but not all of the offences were committed on 6 May 2023: (a) 11 charges of aggravated sexual intercourse without consent, contrary to s 54(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 15 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/4896; CC2023/4897; CC2023/5848; CC2023/5849; CC2023/5850; CC2023/4898; CC2023/5860; CC2023/5861; CC2023/5869; CC2023/5870; CC2023/5872). (b) An offence of attempted aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 15 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5851). (c) An offence of aggravated sexual assault in second degree contrary to s 52(2) of the Crimes Act. The maximum penalty for this offence is 18 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/4900). (d) 3 charges of aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act. The maximum penalty for this offence is 15 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/5852; CC2023/5863; CC2023/5868). (e) An offence of aggravated act endangering health, being choking, contrary to s 28(2)(a) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5876). (f) 2 charges of aggravated common assault contrary to s 26(2) of the Crimes Act. The maximum penalty for this offence is 3 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/5873; CC2023/5877). (g) An offence of aggravated assault occasioning actual bodily harm contrary to s 24(2) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5879). (h) An offence of aggravated capture intimate data contrary to s 61B(1)(a) of the Crimes Act. The maximum penalty for this offence is 250 penalty units, 3 years’ imprisonment or both. The date of this offence was 6 May 2023 (CC2023/5880). (i) An offence of using a carriage service to menace, harass, or cause offence contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (Cth Criminal Code). The maximum penalty for this offence is 5 years’ imprisonment. This offence took place on 13 May 2023 (CC2023/5881). (j) An offence of aggravated non-consensual distribution of intimate images contrary to s 72C of the Crimes Act. The maximum penalty for this offence is 400 penalty units, 4 years’ imprisonment or both. The date of this offence was 14 May 2023 (CC2023/5885).

2. On 23 November 2023, the offender also pleaded guilty to the following two offences in the ACT Magistrates Court: (a) An offence of escaping arrest, contrary to s 160 of the Crimes Act. The maximum penalty for this offence is 100 penalty units, 5 years’ imprisonment or both. The date of this offence was 7 May 2023 (CC2023/8575). (b) An offence of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (PWA). The maximum penalty for this offence is 500 penalty units, 5 years’ imprisonment or both. The date of this offence was 16 May 2023 (CC2023/4959).

Agreed facts

3. The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.

4. Since 2015, the victim had been in an intimate relationship intermittently with the offender and, for the purposes of the Family Violence Act 2016 (ACT), are family members.

5. On 11 May 2023, a friend of the victim attended Tuggeranong Police Station to report a sexual assault against the victim. The friend provided police with six videos which recorded the offender sexually assaulting the victim while under the influence of the drug, GHB (gamma hydroxybutyrate). The assault was recorded by the offender on the victim’s mobile phone, in a bedroom at his residence on 6 May 2023. The first video was recorded at 1:11am and the last video was recorded at 1:44am on the same day. All videos were recorded from a drawer facing the bed. Video 1 – 1 minute and 5 seconds - three charges of sexual intercourse without consent

6. The first video (Video 1) has a duration of one minute and five seconds. The conduct in the video is the subject of three charges of sexual intercourse without consent, contrary to s 54(2) of the Crimes Act (CC2023/4896, CC2023/4897 and CC2023/5848). The Statement of Facts describes the content of the video as follows: (a) The victim is lying on her left-hand side on a bed sleeping when the offender removes her pants leaving her naked from waist down. The offender digitally penetrates the victim’s vagina whilst the victim is unresponsive and not moving (CC2023/4896 - sexual intercourse without consent contrary to s54(2) Crimes Act). (b) The offender then performs cunnilingus on the victim whilst she continues to lay unresponsive and not moving (CC2023/4897 - sexual intercourse without consent contrary to s54(2) Crimes Act). (c) The offender then digitally penetrates the victim’s vagina with two fingers whilst she is unresponsive and not moving (CC2023/5848 - sexual intercourse without consent contrary to s54(2) Crimes Act). (d) The offender then stops recording the video.

Video 2 – 1 minute and 43 seconds - two charges of sexual intercourse without consent and one charge of attempted sexual intercourse without consent

7. The second video (Video 2) has a duration of one minute and 43 seconds. The conduct depicted in the video is the subject of two charges of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5849 and CC2023/5850) and one charge of attempted sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5851). The Statement of Facts describes the content of the video as follows: (a) The offender performs cunnilingus on the victim whilst she is unresponsive and not moving (CC2023/5849 - sexual intercourse without consent contrary to s54(2) Crimes Act). (b) The offender then again digitally penetrates the victim’s vagina, and the victim jerks her body away (CC2023/5850 - sexual intercourse without consent contrary to s54(2) Crimes Act). The offender then removes his erect penis from his underwear and attempts to insert his penis into the victim’s mouth. (c) The victim groans and tries to move away from the offender. The offender states, “Open your mouth” and the victim pushes against the offender and says, somewhat dazed, “Ow. What are you doing?” The offender responds, “Fuck Off” and then stops the recording (CC2023/5851 - attempted sexual intercourse without consent contrary to s54(2) Crimes Act).

Video 3 – 36 seconds - one charge of sexual assault in the third degree

8. The third video (Video 3) has a duration of 36 seconds. The conduct depicted in the video is the subject of one charge of sexual assault in the third degree contrary to s53(2) Crimes Act (CC2023/5852). The Statement of Facts describes the content of the video as follows: (a) The victim groans as the offender lifts her off the side of the bed by the jumper. He then grabs the victim by the back of the head whilst telling her to open her mouth. The victim groans and tries to move away from the offender. (b) The offender says, “What the fuck are you doing” and the victim replies, “What are you doing?” (c) The offender states, “Open your mouth” and the victim replies, “You’re hurting me.” (d) The offender then grabs the back of the victim’s neck and slaps her on the left side of her face with his right hand three times. (e) The offender then stops the recording (CC2023/5852 - sexual assault in third degree contrary to s53(2) Crimes Act).

Video 4 – four minutes and five seconds - one charge of sexual assault in the second degree and one charge of sexual intercourse without consent

9. The fourth video (Video 4) has a duration of four minutes and five seconds. The conduct depicted in the video is the subject of one charge of sexual assault in the second degree contrary to s52(2) Crimes Act (CC2023/4900) and one charge of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/4898). The Statement of Facts describes the content of the video as follows: (a) The offender tells the victim “Open your mouth” and tries to force his penis into her mouth. The victim groans in response and said, “I don’t have it in me.” (b) The offender holds the victim down by holding her shoulder and slaps away her hand whilst continuing to tell her to open her mouth. (c) The offender slaps the victim’s face six times and then grabs her by her hair and slaps her face whilst telling her to move her hands. (d) The offender slaps the victim with audible force with one of his hands on the left side of her buttocks. This resulted in an immediate red handprint. He repeatedly demands that she open her mouth. The victim cried in distress and kicks her legs (CC2023/4900 - sexual assault in second degree contrary to s52(2) Crimes Act). (e) The offender slaps the victim’s face and she said, “you’re hurting me.” He then continues to demand that she open her mouth. She kicks her legs to get away from the offender. He then laid over the top of the victim who is on the bed. The offender forces his penis into mouth saying, “That’s better… Open it. Open your mouth cunt”. The victim makes a choking noise (CC2023/4898 - sexual intercourse without consent contrary to s54(2) Crimes Act). (f) The offender then slaps the victim’s left buttocks causing her to jump and scream, “Ow”. She lies on the bed groaning and the offender stops the recording.

Video 5 – 17 minutes and 5 seconds - five charges of sexual intercourse without consent, two charges of sexual assault in the third degree, one charge of act endangering health (choking) and one charge of common assault

10. The fifth video (Video 5) has a duration of 17 minutes and five seconds. The conduct depicted in the video is the subject of five charges of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5860, CC2023/5861, CC2023/5869 and CC2023/5870, CC2023/5872), two charges of sexual assault in the third degree contrary to s53(2) Crimes Act (CC2023/5863 and CC2023/5868), one charge of act endangering health (choking) contrary to s 28(2)(a) Crimes Act (CC2023/5876) and one charge of common assault contrary to s26 Crimes Act (CC2023/5873). The Statement of Facts describes the video as follows: (a) The offender grabs the victim’s right arm, puts it behind her back and puts handcuffs on her. The Statement of Facts states this was painful for the victim, and it felt like they were cutting into the victim’s wrists. The offender then forces his penis into her mouth whilst holding the victim’s hair (CC2023/5860 - sexual intercourse without consent contrary to s54(2) Crimes Act). (b) The offender uses his right hand to grab the offender’s face and cover her mouth whilst telling her to “shut up”. The offender then forces his penis into her mouth whilst holding her hair and telling her to “put it in your mouth”. The victim remained handcuffed and groans in discomfort. (c) The offender then slaps the victim’s face while still having his penis in the victim’s mouth and telling the victim to “fucking open it”. (d) The victim attempts to move by wriggling her body as she is lying on the bed on her stomach with her hands handcuffed behind her back and her head over the side of the bed (CC2023/5861 - sexual intercourse without consent contrary to s54(2) Crimes Act). (e) The offender says, “Don’t use your teeth” and slaps the victim’s face twice, telling her again, “open your mouth wider. Breathe through your nose cunt”. (f) The victim says, “My arms are breaking”. The offender then slaps the victim six times to her face, and again says to the victim, “Why you using your teeth,” “Breathe through your mouth,” “Put it all the way down,” “Put it in your mouth cunt,” and “Open your fucking mouth.” (g) The victim is gasping for air, and physically resists the offender by thrashing her body, resulting in the victim falling off the bed (CC2023/5863 - sexual assault in the third degree contrary to s53(2) Crimes Act). (h) The offender slaps the victim to her face and throws her body back onto the bed, causing the victim to scream and say, “It’s hurting”. The offender then removes one of the handcuffs. (i) The offender slaps the victim on her left buttocks with one of his hands and tells her to “shut up” while the victim is crying. (j) The offender slaps the victim twice to her face and tells her to “Open your fuckin mouth or I’ll put them back on”, referring to the handcuffs. The victim continues to cry and tries to get away from the offender (CC2023/5868 - sexual assault in the third degree contrary to s53(2) Crimes Act). (k) The offender forces his penis into the victim’s mouth whilst holding her down on the bed by the shoulders, and again tells her to not use her teeth, and to open her mouth (CC2023/5869 - sexual intercourse without consent contrary to s54(2) Crimes Act). (l) The offender digitally penetrates the victim’s vagina with his fingers whilst still inserting his penis into the victim’s mouth, causing the victim to breathe rapidly (CC2023/5870 - sexual intercourse without consent contrary to s54(2) Crimes Act). (m) The offender continues to say to the victim “Open your mouth,” “Fuck me cunt, just open your mouth,” “Don’t bite my fuckin dick cunt,” “I’m going to tie your fucking hands up again”. (n) The offender proceeds to reapply the second handcuff to the victim’s wrist, but she actively resists by kicking and saying “No, please, I’m sorry”. The offender tells the victim to “Put it in your fuckin mouth” and the victim makes a choking and coughing noise. (o) The offender tells the victim, “In two seconds I’m going to tie you back, open your fuckin mouth”. (p) The offender forces his penis into the victim’s mouth whilst saying “Use your teeth again cunt,” “Open your mouth,” and “Breathe through your nose cunt.” (q) The offender tells the victim, “You don’t need your nose,” “Why do you care if I block your nose.” The victim makes a gasping noise and attempts to wriggle away from the offender. The offender’s penis was so far down her throat that it blocked the victim’s airway, and she was unable to breathe. (r) The offender says “Oh god cunt,” “Use your teeth again,” and “Stop biting my fucking dick cunt”. The victim tries to get away from the offender and falls off the bed (CC2023/5872 - sexual intercourse without consent contrary to s54(2) Crimes Act; CC2023/5876 – act endangering health (choking) contrary to s 28(2)(a) Crimes Act). (s) The offender throws the victim back onto the bed. (t) The victim cries in distress while the offender tells her to “hurry the fuck up cunt,” “don’t bite my fucking dick”. The victim tries to kick her legs to get away from the offender, but he says, “Don’t move or I’ll tie your hands up”. The victim kicks her legs while the offender holds her down by her head. The victim is gasping for air as she tries to cover her face with her arms. (u) The offender slaps the victim with force to her left buttock, causing her to scream out and cry (CC2023/5873 - common assault contrary to s26 Crimes Act). (v) The offender then stops the recording.

Video 6 - two minutes and 16 seconds – no charges

11. The sixth video (Video 6) has a duration of two minutes and 16 seconds. This video is not the subject of any charges. The Statement of Facts describes the video as follows: (a) The victim is in the foetal position on the bed with her hands covering her face and one handcuff still applied to her left wrist. (b) The offender pulls down his pants while the victim continues to cry. (c) The offender says “Do you want some more G, will that make you better,” “What the fuck is wrong with you,” “Why are you crying,” and “What the fuck are you doing”. (d) The offender then stops the recording.

12. The reference to “G” is a reference to the illicit drug, GHB. The Statements of Facts states that the victim does not remember how she came to be on the bed. The Statement of Facts further states the victim had taken some “G” earlier with the offender, which often caused her to pass out. The first thing the victim remembers was waking up to find that she had no pants on, and that the offender was slapping the victim in the face and putting his penis in the victim’s face, and that the offender was angry. The Statement of Facts states the victim was confused and didn’t know where she was or what was going on.

13. At some point following the incidents captured in the videos, the victim left the bedroom and went out to the garage to have a cigarette. The offender was also in the garage and kept asking “What’s wrong with you.” The offender asked the victim for the passcode to her phone, but she refused.

14. The offender told the victim he was going out with his friend and offered her some more “G.” She accepted, and then went back to bed.

Common assault – 6 May 2023 – not on video

15. As the victim was starting to fall asleep, the offender entered the bedroom and grabbed her and lifted her up by her hair and started hitting her. The victim was unable to move due to the effects of the “G” and was unable to sit up properly, which made the offender angrier. The victim fell off the bed and was unable to get up, so the offender grabbed a bottle of lemon juice and sprayed it in her face and said, “Get the fuck up.” The victim began to cry and pleaded with the offender to “please stop”. The offender told her to be quiet so that his mother would not hear and said, “If you’re gonna do this to me I might as well go out and fuck all these bitches.” This conduct is the subject of one charge of common assault contrary to s26 Crimes Act (CC2023/5877). Assault occasioning actual bodily harm – 6 May 2023 – not on video

16. The offender then put the victim back onto the bed and continued to yell at her. He then punched her in the ribs, which caused a sharp pain and took the breath out of the victim’s lungs. The victim had pain in her ribs for several days after this incident. This conduct is the subject of one charge of assault occasioning actual bodily harm, contrary to s24 Crimes Act (CC2023/5879).

17. The offender then said, “Fuck this, I’ll just go out and get some bitch to suck my dick” and left the bedroom.

18. At around 7:00am, the victim woke up and contacted the offender, and the offender returned home shortly after. At this time, they had consensual sexual intercourse, which the victim described as wanting to take away the bad things that happened before it.

19. Shortly after this, the victim left the house. She did not hear from the offender for a few days.

Capture intimate data – 6 May 2023

20. Over the following days the victim was unable to move without pain. At some point during this period, the victim located the abovementioned videos in her ‘recently deleted’ folder on her phone. She sent the videos to her friend so that a copy of the videos would exist. The victim did not consent to the offender taking the six videos of this incident. This conduct was charged as one charge of capture intimate data contrary to s61B(1)(a)(a) Crimes Act (CC2023/5880).

Menace, harass or cause offence – 13 May 2023

21. A few days after the incident the offender began to message the victim over Facebook Messenger and repeatedly threatened her that if she didn’t answer his calls, he would do something to her house or contact her child’s father, and that if she went anywhere, he was waiting out the front and would run her off the road. At one point the offender sent the victim his location which was a street away from her house and told her to share her location to prove she was at home, or he would do something else. He demanded that she leave her phone location on. The victim felt like she was unable to leave her house. Other messages sent by the offender included: (a) “I’m sending these videos of you on the gee right now to [child’s] dad good luck.” (b) A screenshot of his location which was a street away from her house, followed by messages saying “wru”, “hurry up”, “hurry up and come see me.” (c) “If you go see them or tell them your coming to see me I promise on my life you will regret it for the rest of your life.” (d) “Watch, I’ll be waiting and I got another meeting of the car and when someone pulls up for leaves your house.... the cars at the front you lose [child] for making it unsafe do you understand what your doing I told you no listen to me cont [sic].”

22. The victim also had around 112 missed calls from the offender over this period. This is the subject of one count of use carriage service to menace, harass or cause offence contrary to s 474.17(1) Criminal Code 1995 (Cth) (CC2023/5881).

Distribution of intimate images – 14 May 2023

23. On 14 May 2023, the victim became aware that the offender had distributed a video of the offender and the victim engaging in consensual sexual intercourse, to two of the victim’s friends. The victim confronted the offender about it over text message and said, “ALAN WTF” and “WHO DID YOU SEND THIS TO”. The offender replied, “Should I keep sending”, “How do you like it”, and “Its to your friends”. The victim replied, “You sent a video of you fucking [me] to a bunch of people I don’t even know just for a laugh”. This conduct is the subject of one count of non-consensual distribution of intimate images contrary to s72C Crimes Act (CC2023/5885).

Arrest of offender – 16 May 2023

24. On 17 May 2023, the day after the offender was arrested, the offender called a family friend from the AMC, and asked that person to speak with the victim. The offender provided her with the victim’s mobile number.

25. The following day the victim received a text message from an unknown number saying, “Hey babe, I know Alan loves you… if you love him you need to make it right”. That same number later called the victim. The caller stated she was a family friend of the offender, and that the offender had not been in a good place. The victim provided police with a copy of this text message and her phone call log.

26. The next day the victim received a call from the offender. During this phone call the offender said to the victim “can you fucking go and do something about all this shit please”, “go and tell the truth please”, and “with your ex…if it goes to court, either if its true or not true…. This gives him power, just fucking stop it, stop it.” Victim attends police station – 12 May 2023

27. On 12 May 2023, the victim attended the Tuggeranong Police Station with her friend and disclosed the sexual assault to police. She did not wish to provide a formal statement at that time.

Search of offender’s residence – 19 May 2023

28. On 19 May 2023, police executed a warrant at the offender’s residence. During the search, police located a blue fitted sheet, a blue flat sheet, and a grey and white blanket consistent with the bedding observed in the videos of the incident. Police also located a black Tommy Hilfiger jumper consistent with the jumper the offender was wearing in the videos of the incident.

Interviews

29. On 20 May 2023, the victim participated in an Evidence-in-Chief Interview with police and disclosed the abovementioned events.

30. On 7 June 2023 the offender participated in a record of interview with police. During the interview the accused stated the following: (a) The incident was consensual. (b) The victim’s friend obtained the videos without the permission of the victim. (c) He was on GHB at the time. (d) He “sort of” remembers recording the incident, but then also doesn’t remember. (e) The victim reporting the incident will “fuck my life” because “she’s being angry and spiteful.”

Escape arrest – 7 May 2023

31. The Statement of Facts also states that on 3 May 2023, the offender entered into bail with conditions in the ACT Magistrates Court, including a condition to be present at his place of residence from 10:00pm to 7:00am each day.

32. At around 3:26am on Sunday 7 May 2023, police were on a routine patrol and observed a vehicle.

33. Detective Sergeant (D/Sgt) Lester approached the vehicle and observed the offender standing at the open driver’s side door, and two other males seated in the front passenger seat and rear back seat of the vehicle respectively.

34. D/Sgt Lester requested the offender identify himself. The offender gave the name ‘Mitchell Daley’ and stated that he was not the driver of the vehicle, and that he was waiting for a friend.

35. D/Sgt Lester used police indices to confirm the identity of the offender. Having done so, D/Sgt Lester approached the offender, placed his hand on his left arm, and advised him that he was under arrest for breaching his bail conditions.

36. D/Sgt Lester requested the offender place his hands behind his back, however the offender did not comply. D/Sgt Lester had to repeat this demand several times.

37. The offender did not comply with any of these requests and reached for a “manbag” underneath his jacket on the right-hand side. At this time, D/Sgt Lester discharged his taser, however the first shot was ineffective. The offender turned away. D/Sgt Lester discharged his taser again, however the second shot was also ineffective. The offender then fled the area. D/Sgt Lester did not pursue the offender (CC2023/8575 – escape arrest contrary to s160 Crimes Act).

Possess prohibited weapon – 16 May 2023

38. On 16 May 2023, police attended the offender’s residence to execute an arrest warrant. Police located the offender standing inside his garage and observed the offender to be holding a 60ml canister of oleoresin (capsicum) spray in his hand. The offender was directed to place this item on the ground, to which he complied. He was placed under arrest and taken into custody.

39. Oleoresin (capsicum) spray is a prohibited weapon under Schedule 1, Part 1.4, Item 6 of the PWA: PWA sch 1, pt 1.4, item 6. The offender is not authorised to possess this weapon (CC2023/4959 – possess prohibited weapon contrary to s5 Prohibited Weapons Act 1996).

Victim Impact Statement

40. A Victim Impact Statement was tendered by the prosecution. This dignified and eloquent statement from the victim includes the following: Since this has happened to me I feel completely broken. My anxiety is worse than ever, I suffer from depressive moods, and it has caused a rift within my family. I can’t and I don’t want to talk about what’s happened with anyone, I’m embarrassed and ashamed for letting this happen, I regret giving you so many chances to keep hurting me when I knew I should have walked away. I get so depressed that some days I just start crying because of the thoughts in my head, every day I am stuck in my own head and am overcome with complete and heartache over the memories I have of you. I try to distract myself to stop thinking at all, because you are always on my mind and it is the most painful thing in the world to feel the way it makes me feel. You destroyed my self-worth and any self-love I had left. I feel like I am not good enough for anyone. You constantly told me I was dumb and pointed out everything that was wrong with me and these things have stuck with me. I have extreme trust issues. I do not even trust my own judgement and I second-guess every decision I make, big or small. You made me feel guilty for being mad at you because I wanted you to do better. You made me feel guilty for being upset, because you were lying to me and hurting me. I feel like you broke my heart intentionally because I somehow deserved it. I feel guilty for being here, and saying these things today because I know you think this is all my fault. You knew the consequences but you still did what you did without any hesitation or guilt. I am so confused about so many things. I do not understand how someone who was supposed to love you can do such evil things to you. I do not understand why I loved someone so much who did not actually make me feel like I was loved. I feel like I will never move past this, no matter how hard I try. I do not know how I will ever feel better or forget what has happened. I do not even want an apology from you, because it will not mean a thing anymore and it will not change what you have done. It will not fix the damage you have caused or take away the pain I am feeling. I do not want anything from you, I just hope one day you actually understand what you have done and exactly how much you have hurt me. This pain and heartbreak is not something I would wish upon anyone. Not even you. (emphasis added)

41. The Court recognises the serious impacts of these crimes on the victim. It is clear from the Victim Impact Statement that these appalling crimes had an understandably significant impact on the victim. The Court further acknowledges the importance of what the victim has expressed in her Victim Impact Statement. No one deserves to be treated this way. No woman deserves to be the subject of such appalling, criminal treatment. The serious victim impact may be expected from the serious nature of the sexual offending.

42. The prosecution properly submitted it is clear that this offending has had a profound effect on the victim. In her words, the offending has left her “completely broken,” and the victim speaks of the embarrassment and shame that the offending has caused her. The Court makes it clear in this context that the shame belongs to the offender. The shame does not and cannot belong to the victim. The question of the viewing of video footage

43. I note that having considered the submissions of both prosecution and counsel for the offender, I have come to the conclusion that this Court is duty bound to view the video footage (exhibit 3) as it is the direct evidence of the actual offending. I have considered the submissions of the prosecution and counsel for the offender below in coming to my conclusion.

44. The prosecution referred to Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 (Calatzis), at [24], R v Porte [2015] NSWCCA 174 at [76] and DPP (Cth) v Garside [2016] VSCA 74 at [70].

45. The prosecution properly relied on R v Ashton (a pseudonym) [2022] ACTCA 45 (Ashton) where McCallum CJ relevantly stated at [2]: As necessarily occurs in the event of a plea of guilty, the offender was sentenced on the strength of a statement of agreed facts (summarised in detail in the judgment at first instance: R v Ashton [2022] ACTSC 27 at [6]–[25]). Statements of agreed facts serve an important function and are of considerable assistance to sentencing courts. However, being generally (appropriately) couched in neutral terms, they can serve to sanitise the offence in question and mask the true degree of an offender’s moral turpitude. (emphasis added)

46. I agree, as submitted by the prosecution, that the footage is the best evidence of the offending, and is directly relevant to at least two relevant factors under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): (a) s 33(1)(a) – nature and circumstances of the offending. (b) s 33(1)(i) – degree of responsibility of the offender for the commission of the offence.

47. I note for completeness, that the prosecution sought the views of the victim. The victim has advised that there is no objection on her part to the court viewing the videos.

48. Relevantly, counsel for the offender submitted the following evidence is not contentious: (a) The victim had a 7-year sexual relationship with the offender. (b) The 7-year sexual relationship was in the context of sharing drugs before sex. (c) It was not uncommon for the physical sexual interaction to be audio/visually recorded. (d) In the months of March and April and up to 6 May 2023 the offender was living in the home of his mother. (e) The victim was living in a nearby suburb. (f) Normally the victim would contact the offender and come over to his mother’s house for drugs and sex. (g) On 6 May 2023, the victim came over to the offender’s residence for drugs and sex. There was an agreement that the victim would take GBH and after that have sex with offender. (h) The victim took GBH on 6 May 2023 and then went “out to it”. (i) The offender took GBH, Ice, Heroin and drank a substantial amount of alcohol. (j) The offender “decided” he would commence sexual activity when the victim was still out to it. (k) This meant that the victim could not consent, and the offender accepts the victim could not, and did not, consent. I note that this, in my view, is an important concession and is clear from the court’s subsequent viewing of the footage. (l) What followed was the offender engaging in sexual activity with the victim in a selfish, uncaring and physically ruthless fashion. The victim was treated badly by the offender who, in this behaviour, was clearly trying to only satisfy his own sexual desires. (m) The offender recorded the sexual offending against the victim using her phone. (n) After the sixth recording, the offender left his residence for some hours and then returned. The victim was still at his residence. (o) On his return the offender and victim had consensual sex. (p) When the offender was arrested by police on 16 May 2023 he showed surprise at being arrested. (q) On or around 20 May 2023, the offender called the victim from the AMC and says: “can you fucking go and do something about all this shit please” and “go and tell the truth please.” Counsel for the offender submitted this clearly shows that the offender had not seen the videos on the victim’s phone and erroneously thought, at this stage, that what had occurred was consensual and wanted the victim to ‘right’ the ‘wrong’ about his arrest and charges. (r) The offender has still not seen the videos. He has, however, now read the Statement of Facts and has been advised that the Statement of Facts is accurate, which led his solicitor to give the inevitable advice to the offender to plead guilty. The offender has accepted that advice. Again, the Court having subsequently viewed the footage, it can be stated that this advice was not without foundation. (s) The offender has given evidence that he accepts his actions as shown in the recordings cause him great shame and embarrassment. He describes his actions as being that of a “pig”. He has apologised to the victim and counsel for the offender submitted the offender has clearly shown remorse, which the offender spoke of in his 90-minute interview with Dr Lennings.

49. Counsel for the offender submitted it is a matter for the Court as to whether the recordings are to be viewed and further submitted that the agreed Statement of Facts provides an accurate description of the offending. Conclusion as to consideration of submissions relating to video footage

50. By way of brief summary, the prosecution submits this court should view the actual footage as it is the best evidence of the actual offending. As such, the court will therefore be in the best position to assess the nature and circumstances of the offending. As I indicated earlier, there is force to this submission and I have concluded that the Court is duty bound to view the video footage.

51. Counsel for the offender does not in terms oppose the viewing of the footage. Nevertheless, emphasised that the Statement of Facts was accurate.

52. In my view, the comments made in Hutchinson [2018] NSWCCA 152 (Hutchinson) at [48] – [50] by the NSWCCA are germane. That is, in particular that viewing of footage is not essential in every case. Courts are reluctant to view such material in every case for the reasons elucidated in Hutchinson at [48] – [50] and summarised below: (a) First, there is no binding authority that viewing is essential in every case. (b) Second, it is the duty of the prosecution authorities to provide an adequate written description of the material in question. (c) Third, in the majority of cases, a written description will be sufficient for a court to appreciate the level of depravity. (d) Fourth, it is not necessarily ideal for victims to know that lawyers and judges will be viewing the material.

53. Nevertheless, in this case, on the particular facts before the court, I have concluded that it is important, as a matter of law, to view the offending material. Regrettably, it is the best and most direct evidence of the offending. Self-evidently this is because the video footage records the actual offending. In these circumstances, the court is therefore placed in the forensically relevant position of viewing the actual offending. This is important in assessing the respective submissions regarding the offending from both prosecution and counsel for the offender: see s 33(1)(a) and 33(1)(i) Sentencing Act.

54. This conclusion does not perforce entail that in every case of this nature any material must be viewed. Nevertheless, it is clear it must be done in this case. The legal duty to view such degrading material is one of the more unsatisfactory aspects of a judge’s duties.

Objective seriousness

55. As I stated in DPP v Druett [2024] ACTSC 56 at [19], an assessment of the objective gravity of the offending is a fundamental part of determining the appropriate sentence for the offences: see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]; see also R v Van Ryn [2016] NSWCCA 1 at [135].

56. It may be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction in and of themselves. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

57. Nevertheless, an assessment of the objective gravity of an offence has always been an essential part of the sentencing process. Categories as to range may be opaque and lack clarity. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29] (Muldrock); see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I will both identify relevant features in relation to the objective seriousness and identify the range: see summary of findings at the table set out at paragraph [139]. “Rolled up” charges

58. A number of the offences are “rolled-up” counts. The approach to be adopted is well established and was usefully, in relation to rolled up counts, summarised by Refshauge AJ in R v Hancock [2021] ACTSC 52 at [28]: • for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged; • nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence; • the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and • the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency. Sexual intercourse without consent – Videos one, two four and five

59. As stated above and in the Statement of Facts, the conduct contained in Videos 1, 2, 4 and 5 is the subject of 11 offences of sexual intercourse without consent contrary to s 54(2) of the Crimes Act.

60. In R v Palmer [2017] ACTSC 357, Mossop J (citing Jurj v The Queen [2016] VSCA 57) identified the following factors that inform the objective seriousness of an offence of sexual intercourse without consent at [22]: 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

61. Uncontroversially, the following unifying principles concerning sentencing for sexual offences were stated 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.

62. The prosecution correctly submitted that as sexual offending can vary widely in its nature and the circumstances in which it is committed, it is particularly importantly to identify the objective features of the offending that impacts upon its seriousness. In Ibbs v The Queen (1987) 163 CLR 447 at [452], the High Court stated the following: The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. (emphasis added)

63. The question of objective seriousness is to be determined by an examination of the facts of each case. In R v Miller [2019] ACTCA 25 at [29] (Miller CA), the Court held that digital penetration is not to be generally regarded as less serious than penile sexual intercourse: Sexual penetration for the purposes of the offence of sexual intercourse without consent may take different forms, but there is no presumption that any one form is more or less serious than another: Ibbs v The Queen (1987) 163 CLR 447 at 452. In particular, digital penetration is not to be generally regarded as less serious than penile sexual intercourse: R v Hibberd [2009] NSWCCA 20; A Crim R 1 at [21].

64. Relevantly concerning duration, in R v Daley (2010) NSWCCA 223 at [48], Price J stated the following: …the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. (emphasis added)

65. In relation to the significance of multiple rapes comprising a single incident or episode, the prosecution referred to Mush v The Queen [2019] VSCA 307 (Mush), the Victorian Supreme Court of Appeal considered the effect of multiple discrete rapes within the one incident or episode of offending. The Court observed at [72] – [73] that: Although all of the offences occurred in one episode, nevertheless each successive act that was the subject of a charge was a separate crime committed by the applicant against [a victim]. The fact that they occurred in the course of one continuous incident must not obscure the gravity of the applicant's offending, and of each individual offence that he committed. On each occasion upon which the applicant, in that event, committed an offence, he did so by way of a conscious, deliberate choice to violate the person of his victim… In addition, each successive offence committed by the applicant took place in the context in which, in the same incident, he had committed the acts and offending that preceded that offence. In particular, the offences that were the subject of charges 5, 6 and 7 were committed after, and in the context of, the assaults and offending that immediately preceded those offences. As the Court pointed out in Director of Public Prosecutions v DDJ [2019] VSCA; 22 VR 444], repetition of sexual abuse is likely to make the victim more fearful each time that it will happen again. It also makes the offender progressively more aware of the victim's suffering. In both respects, the offender's culpability is heightened. (emphasis added)

66. In DPP (Vic) v Mokhatri [2020] VSCA 161 (Mokhatri), the Victorian Supreme Court of Appeal observed at [43] that: ... the prolongation and repetition make the offending especially serious. For the reasons given in DDJ, AM's culpability in relation to the later rapes should be seen as greater than in relation to the earlier rapes, given his clear awareness of [the victim]’s ongoing desperation and her horror at the prospect of further sexual abuse. (emphasis added)

67. I will take the principles that can be distilled from the foregoing cases into account in assessing objective seriousness.

Objective seriousness submissions

Sexual intercourse without consent

68. I note at the outset that the prosecution made the following submissions concerning the sexual intercourse offences captured in each of the Videos 1, 2, 4 and 5.

69. Before proceeding to the prosecution submissions, I note in this regard that counsel for the offender addressed each video separately. I will outline counsel for the offender’s submissions after the prosecution submissions.

70. The prosecution made the following submissions with respect to the assessment of the objective seriousness of the offences of engaging in sexual intercourse without consent. I note for completeness that the prosecution made these submissions for all of the offences of sexual intercourse without consent, whereas counsel for the offender split his submissions on the offences of sexual intercourse without consent by video. Videos 1, 2, 4 and 5 include counts of sexual intercourse without consent. (a) The offending commenced when the victim was unconscious. In these circumstances the victim was self-evidently vulnerable. (b) Each individual act of intercourse was relatively brief but was part of a larger episode of offending that spanned approximately 25 minutes. (c) The offender continued in the face of repeated pleas from the victim to stop, and in the face of physical resistance from the victim. On a number of occasions, the victim attempted to get away, however the offender prevented her from doing so, including by applying handcuffs to her wrists. (d) The offending involved physical violence and threats. At various points the offender used force or threats to facilitate the offending. As a matter of law, the court must be careful not to double punish the offender for acts the subject of separate charges. (e) The offences were committed in circumstances of degradation. The offender treated the victim as if she were an object rather than a human being. It involved the destruction of her dignity. (f) The videos of the incident make plain the significant suffering and humiliation of the victim at the hands of the offender.

71. Having regard to the above matters, the prosecution submitted that these counts commence at the mid-point on the spectrum of objective seriousness for such offending. Consistent with the observations made in Mush and Mokhatri extracted above, it was submitted that the offender’s culpability increases as the offending progresses. I agree in accordance with the authorities.

72. Counsel for the offender submitted that it is not possible to establish a hierarchy of the seriousness of the various types of sexual intercourse and that the courts should consider the types of intercourse “in all the circumstances surrounding the offending” noting that “the type of penetration is simply one factor and by itself does not indicate how serious the particular offence is” (R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v BNS (No 2) [2016] ACTSC 145). I take that principle into account.

73. Counsel for the offender further submitted that the proper approach in this matter would be for this court to assess the offending in all the circumstances, including factors such as the degree of violence, the duration of the offence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise. That is correct in accordance with the authorities.

74. Counsel for the offender conceded that, when assessed as a course of conduct, the offending is objectively serious, despite there being no penile-vaginal intercourse. This submission accords with my view of the facts.

75. In relation to Video 1 (three offences of sexual intercourse without consent (CC2023/4896, CC2023/4897 and CC2023/5848)), counsel for the offender submitted that each offence was fleeting in duration, which limits the seriousness of these offences. As stated above, the video has a duration of 1 minute and 5 seconds. Two of these offences took the form of digital penetration, while the third was cunnilingus. Counsel for the offender conceded these forms of forced intercourse do not mitigate the seriousness of the offences. Counsel for the offender further submitted there is no evidence that violence or physical hurt was inflicted on the victim throughout Video 1, however conceded the victim’s unconsciousness aggravates the offending. It was submitted by counsel for the offender that the offending captured by Video 1 is below the mid-range of objective seriousness.

76. In relation to Video 2 (two offences of sexual intercourse without consent (CC2023/5849 and CC2023/5850)), counsel for the offender submitted that, as with Video 1, each of these offences were limited in duration and there was no evidence that violence or physical hurt was inflicted on the victim. Counsel for the offender submitted the offending captured by Video 2 falls at or below the mid-range of objective seriousness.

77. In relation to Video 4 (one offence of sexual intercourse without consent (CC2023/4898)), counsel for the offender submitted that the offender exercised significant levels of violence and the victim was clearly in pain. Counsel for the offender conceded the offending captured by Video 4, which includes this offence of sexual intercourse without consent, was above the mid-range of objective seriousness.

78. In relation to Video 5 (five offences of sexual intercourse without consent (CC2023/5860, CC2023/5861, CC2023/5869, CC2023/5870 and CC2023/5872)), counsel for the offender conceded that this conduct, which includes the five offences of sexual intercourse without consent, is objectively the most serious of each of the videos. As stated above, the video is 17 minutes and 5 seconds. It captures increased levels of violence by the offender.

79. I summarise my findings concerning these matters in a table at paragraph 139․ Attempted sexual intercourse without consent – Video 2

80. As stated above and in the Statement of Facts, the conduct in Video 2 is the subject of one offence of attempted aggravated sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5851). In Video 2, as stated in the Statement of Facts, the offender “removes his erect penis from his underwear” and “attempted to insert his penis into the victim’s mouth.”

81. In R v BI (No 4) [2017] ACTSC 71 (BI), Refshauge J usefully summarised at [40] a number of principles concerning the assessment of objective seriousness of an offence involving an ‘attempt,’ and I apply those principles in this case.

82. The prosecution submitted that the same considerations that inform the objective seriousness of the three counts of sexual intercourse without consent will inform the assessment of the objective seriousness of this offence.

83. The prosecution submitted that this charge relates to the offender attempting to insert his erect penis into the victim’s mouth, and submitted it is this act that pulled the victim from unconsciousness, and it was only by virtue of her pushing away from the offender that the substantive offence was not completed. The prosecution correctly submitted it occurred in the context of the offender having just repeatedly violated her whilst she was unconscious. The prosecution submitted the offending represents a complete disregard for the victim’s body and her autonomy. I agree. This is clear from the evidence.

84. The prosecution submitted that, given the circumstances in which the attempt occurred and how close it came to completion, there is little, if any, difference in the moral culpability of the attempted offence and the substantive offence had it been completed. Having regard to these matters, it was submitted the offending falls at or above the mid-range on the spectrum of objective seriousness.

85. Counsel for the offender submitted that this offence was limited in duration and there was no evidence that violence or physical hurt was inflicted on the victim. Counsel for the offender further submitted that the offending captured by Video 2 falls at or below the mid-range of objective seriousness.

86. I summarise my findings concerning this matter in the table at paragraph 139․ Sexual assault third degree – Videos 3 and 5

87. As stated above and in the Statement of Facts, the conduct in Videos Three and Five is the subject of three offences of aggravated sexual assault in the third-degree contrary to s 53(2) Crimes Act (CC2023/5852, CC2023/5863 and CC2023/5868).

88. Relevantly, in R v GG [2017] ACTSC 137 (GG) Mossop J observed at [26]: It is important to note the relationship between s 53 and ss 51 and 52 of the Crimes Act. Those latter sections provide for increased penalties where the assault occasions actual or grievous bodily harm. It is also notable that the principal feature of the offence which distinguishes it from a common assault is the association between the assault and the intention to engage in sexual intercourse. It is the intention which the legislature has fixed upon to dramatically increase the penalty. That reflects the gravity with which violence in aid of sexual coercion is treated.

89. His Honour considered at [27] that the offence in that matter, which involved the offender striking the victim twice then making some kind of attempt to engage in sexual intercourse while the victim was naked on the bed which was interrupted (see [15]-[17), fell within the upper range of objective seriousness notwithstanding the fact that the intention was not carried through.

90. The prosecution submitted there is scant judicial guidance on the considerations that inform the assessment of the objective seriousness of this offence. The prosecution submitted the following (non- exhaustive) considerations would, as a matter of common sense, inform such an assessment: (a) Whether the offending involved a threat to cause injury, or an actual assault; (b) The nature of the threat made; and (c) The nature of the intercourse the offender intended to engage in.

91. The prosecution further submitted that in the present matter, the offending involved actual assaults rather than a threat to cause injury. The prosecution submitted that each offence was accompanied by an intent to engage in penile-oral intercourse.

92. In relation to CC2023/5852, the offender grabbed the victim by the back of the head, demanded she open her mouth, and when she did not comply, slapped her to the side of the face three times.

93. In relation to CC2023/5863, the offender slapped the victim on eight occasions to the face whilst making derogatory comments. The offending occurred in the context of the victim being restrained by handcuffs and unable to move. The offender continued despite the victim pleading that her “arms are breaking,” and audibly gasping for air. The offending only ceased as the victim thrashed her body to such an extent that she fell off the bed.

94. In relation to CC2023/5868, the offender threw the victim back onto the bed and slapped her on three occasions to the face, once to her left buttocks, and threatened her that he would reapply the handcuffs unless she complied with his demands. The offending occurred whilst the complainant was crying and trying to get away from the offender.

95. The prosecution submitted that each offence falls towards the upper end of objective seriousness for this type of offence.

96. Counsel for the offender conceded that the conduct captured by Video 3, which includes one charge of sexual assault in the third degree (CC2023/5852), captured an increased level of violence by the offender. Counsel for the offender submitted the offending captured by video 3 is within the mid-range of objective seriousness.

97. Counsel for the offender conceded that the conduct captured by Video 5, which includes two charges of sexual assault in the third degree (CC2023/5863 and CC2023/5868), is objectively the most serious of each of the videos and captures increased levels of violence by the offender.

98. Again, I summarise my findings concerning these matters in the table at paragraph 139 below. Sexual assault second degree – Video 4

99. As stated above and in the Statement of Facts, the conduct in Video 4 is the subject of one offence of aggravated sexual assault in the second degree, contrary to s52(2) Crimes Act (CC2023/4900).

100. In DPP v Ayoub (No 5) [2023] ACTSC 140 (Ayoub), Mossop J at [8] considered the following matters as relevant to an assessment of the objective seriousness of this type of offence: the nature of the assault itself, the injuries sustained, the vulnerability of the victim, whether any weapon was used and whether there was any premeditation.

101. The prosecution made the following submissions with respect to this offence: (a) The charge is a rolled-up count, comprising multiple assaults. (b) The nature of the assault involved the offender holding the victim down and slapping her in the face six times, grabbing her hair, slapping her in the face again, and then slapping her left buttocks. The conduct was humiliating and degrading. (c) The offending represented an escalation of the offender’s physical assaults, whereby he had been unable to achieve his intention through the earlier assault the subject of the charge of sexual assault in the third degree (CC23023/5852). (d) The injury sustained was a red handprint to the victim’s left buttocks. (e) The victim was vulnerable. She had only just regained consciousness. (f) The offending occurs after the victim has made clear she does not consent. (g) The offender’s intention was ultimately completed, although it is noted this is the subject of another count.

102. The prosecution submitted that in Ayoub, the assault involved choking causing the victim to gasp for air and resulting in bruising to her neck. The victim was a sex worker and was thus in a vulnerable position. No weapon was used and there was no premeditation. It was assessed as falling at the low end of the mid-range of objective seriousness: see Ayoub at [8].

103. The prosecution submitted that the present offending is more serious than that in Ayoub, noting it involved multiple assaults and occurred in the face of clear non-consent.

104. In relation to Video 4, counsel for the offender submitted that the offender exercised significant levels of violence in the video and the victim was clearly in pain. Counsel for the offender conceded the offending captured by Video 4, which includes the offence of aggravated sexual assault in the second degree, is above the mid-range of objective seriousness.

105. My findings concerning this matter are summarised in the table at paragraph 139 below. Act endangering health (suffocate) – Video 5

106. As stated above and in the Statement of Facts, the conduct in Video 5 is the subject of one charge of aggravated act endangering health – choking, contrary to s 28(2)(a) Crimes Act (CC2023/5876).

107. The considerations informing the objective seriousness of the offence of choking, suffocating or strangling a person were relevantly discussed by Refshauge AJ in R v Bonfield [2021] ACTSC 362 at [68] - [69] as follows: (a) The length of time during which the "choking" persisted; (b) The amount of force used; (c) Whether the offending resulted in the victim's breath being restricted; (d) Whether verbal threats were made at the time of the choking; (e) Whether the victim sustained any injuries as a result of the choking; (f) Whether any aids like rope or cable were used; (g) The circumstances in which the offender released the victim from the choke; (h) The vulnerabilities of the victim; (i) Whether the offence was deliberate and a sustained course of conduct designed to threaten and inflict harm; and (j) Whether the conduct occurred in the context of family violence.

108. In relation to the circumstances of this matter, the prosecution correctly noted the following: (a) The length of time for which the act continued was relatively short. (b) The force used was such that the offender’s penis was so far down the victim’s throat that it blocked her airway. It goes without saying this would have been extremely traumatising. (c) The victim was unable to breathe during the incident. (d) The offender made derogatory comments during the offending, including “Breathe through your nose cunt”, “You don’t need your nose”, and Stop biting my dick cunt.” (e) The offending occurred under the threat of the offender re-applying the handcuffs to the victim if she did not comply. (f) The offending only ceases by virtue of the victim managing to get away from the offender and falling off the bed. (g) The victim was particularly vulnerable. (h) The offending was part of a deliberate and sustained course of conduct. (i) The offending occurred in the context of family violence.

109. The prosecution correctly submitted that the offending falls at or above the mid-range on the spectrum of objective seriousness. It was noted by the prosecution that the offender is separately charged with engaging in sexual intercourse without consent for this conduct (CC2023/5872), relevant to matters of totality.

110. Counsel for the offender conceded that the conduct captured by Video 5, which includes this offence of aggravated act endangering health (choking), is objectively the most serious of each of the videos and captures increased levels of violence by the offender. I agree. My findings concerning this matter are summarised in the table at paragraph 139 below. Assault occasioning actual bodily harm – same day as the videos

111. As stated above and in the Statement of Facts, there is one charge of aggravated assault occasioning actual bodily harm contrary to s24(2) Crimes Act (CC2023/5879).

112. As submitted by the prosecution, the objective seriousness of assault occasioning actual bodily harm is informed by the conduct of the offender, including the degree of violence used, the circumstances surrounding the offending and the nature of the injury caused by the offender: see R v Redmond (No 2) [2022] ACTSC 295 at [12].

113. In the present matter, the prosecution submitted that the assault involved a single punch to the ribs. It occurred against the background of the significant sexual violence that had just been perpetrated by the offender. The assault caused pain to the victim’s ribs for several days after the incident.

114. Counsel for the offender submitted this offence sits towards the low range of objective seriousness. Counsel for the offender submitted there is no evidence the injury was anything more significant than pain. My findings concerning this matter are summarised in the table at paragraph 139 below.

Common assault – same day as the videos - CC2023/5873 (Video 5)

CC2023/5877 (not in video)

115. As stated above and in the Statement of Facts, there are two charges of aggravated common assault contrary to s 26(2) of the Crimes Act (CC2023/5873 and CC2023/5877).

116. As submitted by the prosecution, CC2023/5873 is a rolled-up count, involving multiple assaults and threats. The offender continued the assault despite the victim crying in distress and attempting to physically protect herself.

117. The prosecution further submitted that CC2023/5877 is a rolled-up count, involving the offender grabbing the victim by the hair, hitting her, and spraying a bottle of lemon juice in her face. The prosecution submitted that it occurred in circumstances where the victim was particularly vulnerable due to her intoxication, a fact that was apparent to the offender, yet he continued his assault regardless. Counsel for the offender submitted that this offence sits slightly below the mid-range of objective seriousness. Counsel for the offender submitted there were three applications of force involved, each was quite unpleasant and degrading to the victim. My findings concerning this matter are summarised in the table at paragraph 139 below. Use carriage service to harass/menace – from 6 May 2023 to 14 May 2023

118. As stated above and in the Statement of Facts, there is one charge of using a carriage service to menace, harass, intimidate contrary to s 474.17(1) Criminal Code 1995 (Cth) (CC2023/5881).

119. Relevantly, in R v Hudson [2019] ACTSC 110 (Hudson), Murrell CJ considered at [44] that matters to be considered in an assessment of the objective seriousness of this offence include the period of time for which the harassment extended, the nature of the communications, and the fear felt by the victims. I note that while an appeal against the sentence imposed by Murrell CJ in Hudson was successful, the Court of Appeal accepted Murrell CJ’s assessment of the seriousness of the offending in question: Hudson v The Queen [2020] ACTCA 46 at [45]-[49].

120. The prosecution correctly made the following submissions with respect to this charge. I note that the prosecution submissions set out below accord with my view of the facts. (a) It is a rolled-up count. (b) The offending commenced a few days after the sexual assault (being 6 May 2023) and continued up to around 14 May 2023. (c) The nature of the communications involved threats to harm the victim. These were not idle threats when considered against the background of the recent violent and prolonged sexual assault. The victim plainly was terrified, and felt she was unable to leave her house. (d) The message showing his location to be around the corner from the victim’s house is particularly insidious. (e) The offending involved the offender making 112 calls to the victim.

121. Counsel for the offender submitted that this offence was around the mid-range of objective seriousness, noting the offending occurred over an 8-day period and involved threats of violence to the victim.

122. My findings concerning this matter are summarised in the table at paragraph 139 below. Non-consensual distribution of intimate images (s 72C) – 14 May 2023

123. As stated above and in the Statement of Facts, there is one charge of aggravated non-consensual distribution of intimate images contrary to s 72C Crimes Act (CC2023/5885).

124. The prosecution submitted that in Morrison v Maher (No 2) [2022] ACTSC 63 (Maher No 2) at [117] Mossop J considered the below factors as relevant to an assessment of the objective seriousness of this type of offending: (a) the number of images distributed. (b) The nature of the content. (c) The mechanism by which they were distributed. (d) The extent of the distribution. (e) The knowledge of the offender as to the impact of the distribution on the victim. (f) The motivation of the offender. (g) Whether the offending occurred in the family violence context.

125. In the present matter, the prosecution correctly submitted that the offending involved the distribution of one video. It was further submitted that the nature of the content was of the highest level of intimacy and was a severe infraction of the victim’s rights. It was distributed to a least two persons, and when confronted by the victim the offender threatened to distribute the video further. The prosecution submitted that the offender’s motivation was unclear, although he told the author of the forensic psychological report that he would use these recordings to masturbate.

126. Counsel for the offender submitted the offending falls below the mid-range of objective seriousness noting the extent of the distribution was limited, being two people, and involved one video. Counsel for the offender conceded however, that the video was distributed in the context of family violence, however, the motivation of the offender is unknown. My findings concerning this matter are summarised in the table at paragraph 139 below. Capture intimate data (s61B) – filming the offences

127. As stated above and in the Statement of Facts, there is one charge of aggravated capture intimate data contrary to s 61B(1)(a) Crimes Act (CC2023/5880).

128. The prosecution submitted that in R v NX [2019] ACTSC 131 Mossop J observed at [15](f) that “the objective seriousness [of this offence] is significantly influenced by the nature of the activity which is being filmed.” The purpose for which it was captured will also be relevant.

129. The prosecution correctly submitted that in the present matter the activity being filmed was a violent and prolonged sexual assault perpetrated by the offender. It involved the capturing of six separate videos. The prosecution submitted that this offending falls at the upper end of objective seriousness for offences of this type.

130. Counsel for the offender accepted that the objective seriousness of such an offence is informed by the nature of that activity being filmed, as noted in the prosecution submissions. Counsel for the offender conceded the objective seriousness for this offence must then be above the mid-range. My findings concerning this matter are summarised in the table at paragraph 139 below. Escape arrest – 7 May 2023

131. As stated above and in the Statement of Facts, there is one charge of escaping arrest, contrary to s 160 of the Crimes Act (CC2023/8575).

132. The prosecution submitted that in R v MacDonald [2017] ACTSC 59 at [22], Burns J considered that the most important matter in considering the objective seriousness of this offence is the period of time during which the offender was at large. The prosecution submitted that His Honour considered that other matters relevant to the assessment included whether the offence involved any planning or premeditation, whether the offender committed any further offences during the time at which they were at large, and the resources directed towards recapturing the offender.

133. In the present matter the prosecution noted the following: (a) The offender was at large for 9 days. (b) There was no premeditation or planning. (c) There is no evidence the offender committed any further offences whilst he was at large, although it is noted that he is to be sentenced for possessing a prohibited weapon at the time of his arrest.

134. Counsel for the offender submitted that this offence was of relatively low objective seriousness. My findings concerning this matter are summarised in the table at paragraph 139 below. Possess prohibited weapon – 16 May 2023

135. As stated above and in the Statement of Facts, there is one charge of possessing a prohibited weapon contrary to s 5 of the PWA (CC 2023/4959).

136. I note that in R v Fleury [2022] ACTSC 103 McWilliam AJ observed at [47]: In the present case, the prohibited weapon was a cannister of OC spray. Absent any evidence concerning the weapon's past or intended future use, viewed in isolation the possession of the cannister could be assessed as a relatively minor offence: see R v Cole [2019] ACTSC 228 at [6]. However, it was nonetheless a dangerous weapon and posed a risk if used, particularly given the circumstances of the possession. It was located in an unsecured way, on top of a bedside table in the offender's bedroom. Additionally, it was found in close proximity to several stores of cannabis (in clip seal bags and otherwise).

137. The prosecution submitted that these observations are apposite to the present matter. The prosecution further submitted that the factors identified above will be considered in the context of the s 33 matters. I note that an appeal against this sentence was successful, but not on the grounds of error in her Honour’s assessment of objective seriousness: Fleury v DPP [2023] ACTCA 46; R v Fleury (No 2) [2022] ACTSC 293 at [13] (McWilliam AJ).

138. Counsel for the offender submitted that this offence was of relatively low objective seriousness. My findings concerning this matter are summarised in the table at paragraph 139 below.

Conclusions as to objective seriousness

139. In the table below, the Court relevantly sets out a summary of the extensive submissions on the many counts and my assessment of objective seriousness concerning each count.

Charge Prosecution and counsel for the Assessment of objective offender submissions seriousness by this court 1. Overall I accept the 11 charges Prosecution: The prosecution prosecution submission aggravated sexual submitted these counts commence at that these counts intercourse without the mid-point on the spectrum of commenced at the mid-consent - s 54(2) objective seriousness for such range. This is taking into Crimes Act 1900 offending (see [70] – [71] of this account the matters (ACT) (Crimes Act) judgment). outlined at [70] in this judgment, which I accept (CC2023/4896; Counsel for the offender: on the basis of the CC2023/4897; agreed facts and viewing CC2023/5848; Video 1 (3 charges sexual intercourse of the footage. CC2023/5849; without consent (CC2023/4896, 2. The repeated nature of CC2023/5850; CC2023/4897 and CC2023/5848)): the offending is relevant CC2023/4898; Counsel for the offender submitted to increasing CC2023/5860; the offending is below the mid-range seriousness. CC2023/5861; of objective seriousness (see [75] of 3. I observe the injunction CC2023/5869; this judgment). against double CC2023/5870; punishment in light of Video 2 (2 charges sexual intercourse the number of separate CC2023/5872). without consent (CC2023/5849 and charges over a period of CC2023/5850)),: Counsel for the approximately 25 offender submitted the offending is at minutes of video footage or below the mid-range of objective (submissions by both seriousness (see [76] of this prosecution and counsel judgment). for the offender were based on the offending Video 4 (1 charge sexual intercourse being approximately 25 without consent (CC2023/4898)): minutes). I note that the Counsel for the offender submitted first video was recorded the offending is above the mid-range at 1:11am and the last of objective seriousness (see [77] of video was recorded at this judgment). 1:44am on the same day, 33 minutes apart. Video 5 (5 charges sexual intercourse 4. CC2023/4898 (Video 4): without consent (CC2023/5860, In my view the offending CC2023/5861, CC2023/5869, is above mid-range for CC2023/5870 and CC2023/5872)): the matters outlined at Counsel for the offender submitted the offending is objectively the most [77] in this judgment, serious of each of the videos. It which I accept. captures increased levels of violence 5. CC2023/5860, by the offender (see [78] of this CC2023/5861, judgment). CC2023/5869, CC2023/5870, CC2023/5872 (Video 5): The offending in my view approaches high range. This is the most serious of the offending. This offending is captured by Video 5, there increased levels of violence (see [78] of this judgment). An offence of Prosecution: The prosecution The offending in my view is attempted submitted the offending falls at or mid-range. I note the aggravated sexual above the mid-range on the spectrum submissions of the intercourse without of objective seriousness (see [84] of prosecution and the offender consent - s 54(2) this judgment). do not reveal any significant and s 44 Crimes distinction and I accept the Act Counsel for the offender: matters outlined at [84] and [85] of this judgment, which (CC2023/5851). Video 2 (1 charge attempted sexual in my view are not intercourse without consent inconsistent. (CC2023/5851)): Counsel for the offender submitted the offending is at or below the mid-range of objective seriousness (see [85] of this judgment).

An offence of Prosecution: The prosecution The offending in my view is aggravated sexual submitted the present offending is above the mid-range. I assault in second more serious than that in Ayoub, accept the matters set out at degree - s 52(2) noting it involved multiple assaults [103] and [104]. That is Crimes Act and occurred in the face of clear non- consistent with my viewing consent (see [103] of this judgment). of the footage. (CC2023/4900). Counsel for the offender: Video 4 (1 charge sexual assault second degree (CC2023/4900)): Counsel for the offender submitted the offending is above the mid-range of objective seriousness (see [104] of this judgment).

3 charges Prosecution: The prosecution The offending concerning aggravated sexual submitted each offence falls towards (CC2023/5863 and assault in third the upper end of objective CC2023/5868) falls towards degree - s 53(2) seriousness for this type of offence the high range as it captures Crimes Act (see [95] of this judgment). increasing levels of violence. I take into account the matters properly outlined at (CC2023/5852; Counsel for the offender: [93] and [94]. CC2023/5863; CC2023/5868). Video 3 (1 charge sexual assault in Additionally, the offending third degree (CC2023/5852): Counsel concerning (CC2023/5852) for the offender submitted the is above mid-range. I note at offending is the mid-range of [96] that counsel for the objective seriousness (see [96] of this offender concedes it judgment). captures an increased level of violence at that point. Video 5 (2 charges sexual assault in third degree (CC2023/5863 and CC2023/5868): Counsel for the offender submitted the offending is objectively the most serious of each of the videos. Counsel for the offender submitted it captures increased levels of violence by the offender (see [97] of this judgment).

An offence of Prosecution: The prosecution In my view the offending is aggravated act submitted the offending falls at or above mid-range, taking into endangering above the mid-range on the spectrum account the matters outlined health, being of objective seriousness (see [109] of at [110] of this judgment choking, - s this judgment). which I accept on my 28(2)(a) Crimes viewing of the footage. Act Counsel for the offender: (CC2023/5876). Video 5 (one charge act endangering health (choking)): Counsel for the offender submitted the offending is objectively the most serious of each of the videos. Counsel for the offender submitted video 5 captures increased levels of violence by the offender (see [110] of this judgment).

2 charges Prosecution: The prosecution In my view these offences aggravated submitted the following (see [116] – are clearly serious. It is also common assault - [117] of this judgment): clear that I must avoid s 26(2) Crimes Act double punishment. 1. CC2023/5873 is a rolled-up count, CC2023/5873; involving multiple assaults and threats. The offender continued CC2023/5877). the assault despite the victim crying in distress and attempting to physically protect herself. 2. CC2023/5877 is a rolled-up count, involving the offender grabbing the victim by the hair, hitting her, and spraying a bottle of lemon juice in her face. It occurred in circumstances where the victim was particularly vulnerable due to her intoxication, a fact that was apparent to the offender, yet he continued his assault regardless. Counsel for the offender: Video 5 (1 charge common assault (CC2023/5873)): Counsel for the offender submitted the offending is objectively the most serious of each of the videos. Counsel for the offender submitted video 5 captures increased levels of violence by the offender. After the videos, on the same day (1 charge common assault (CC2023/5877)): Counsel for the offender submitted that this offence sits slightly below the mid-range of objective seriousness. Counsel for the offender submitted there were three applications of force involved, each was quite unpleasant and degrading to the victim (see [117] of this judgment).

An offence of Prosecution: The prosecution In my view this was a aggravated assault submitted that in the present matter, serious offence as it occasioning actual the assault involved a single punch to involved significant pain bodily harm - s the ribs. It occurred against the resulting from a punch to the 24(2) Crimes Act background of the significant sexual ribs. violence that had just been (CC2023/5879). perpetrated by the offender. The assault caused pain to the victim’s ribs for several days after the incident (see [112] – [113] of this judgment). Counsel for the offender: Counsel for the offender submitted this offence sits towards the low range of objective seriousness (see [114] of this judgment). Counsel for the offender submitted there is no evidence the injury was anything more significant than pain.

An offence of Prosecution: The prosecution In my view this matter aggravated capture submitted the offending falls at the approaches the upper end intimate data - s upper end of objective seriousness of seriousness. The 61B(1)(a) Crimes for offences of this type (see [129] of seriousness is increased by Act this judgment). the nature of the offences being filmed, being a violent (CC2023/5880). Counsel for the offender: Counsel sexual assault. for the offender accepted that the objective seriousness of such an I accept the identifying offence is informed by the nature of features outlined at [129] that activity being filmed, as noted in and [130]. the prosecution submissions. Counsel for the offender conceded the objective seriousness for this offence must then be above the mid-range (see [130] of this judgment).

An offence of using Prosecution: The prosecution made This is a serious matter. I a carriage service submissions including the following take into account the to menace, harass, (see [120] of this judgment): number of calls, the location intimidate - s message and the nature of 474.17(1) Criminal a. It is a rolled-up count. the threats. Code 1995 (Cth) For these reasons my (Cth Criminal b. The offending commenced a few assessment is at or above Code) days after the sexual assault mid-range. (being 6 May 2023) and continued (CC2023/5881). up to around 14 May 2023. c. The nature of the communications involved threats to harm the victim. d. The message showing his location to be around the corner from the victim’s house increases the seriousness. e. The offending also involved the offender making 112 calls to the victim Counsel for the offender: Counsel for the offender submitted that the offending is at around the mid-range of objective seriousness (see [121] of this judgment). In my view this was a An offence of Prosecution: The prosecution serious matter. Although the aggravated non- submitted that in the present matter distribution was limited, on consensual the offending involved the distribution the evidence, to two people, distribution of of one video. The nature of the it is nevertheless a serious intimate images - s content was of the highest level of matter and a violation of the 72C Crimes Act intimacy and was a severe infraction dignity of the victim. In my of the victim’s rights. It was assessment the offence (CC2023/5885). distributed to a least two persons, approaches mid-range. In and when confronted by the victim accordance with the matters the offender threatened to distribute outlined at [125] and [126] the video further. His motivation is which I accept on the unclear, although he told the author evidence. of the forensic psychological report that he would use these recordings to masturbate (see [124] – [125] of this judgment). Counsel for the offender: Counsel for the offender submitted the offending falls below the mid-range of objective seriousness (see [126] of this judgment).

1 charge of Prosecution: In the present matter This in my view was a escaping arrest, - s the prosecution notes the following serious matter. It involved 160 - Crimes Act (see [133] of this judgment): an escape by the offender 1900 (7 May 2023) after being seen near a car a. The offender was at large for by police and told he was (CC2023/8575). 9 days. under arrest. In my b. There was no premeditation assessment it is between or planning. low and mid-range. c. There is no evidence the offender committed any further offences whilst he was at large, although it is noted that he is to be sentenced for possessing a prohibited weapon at the time of his arrest. Counsel for the offender: Counsel for the offender submitted that each offence is relatively low objective seriousness (see [134] of this judgment).

1 charge Prosecution: This was a serious matter possessing a involving the possession of prohibited weapon The prosecution relied on R v Fleury capsicum spray (oleoresin) - s 5 Prohibited [2022] ACTSC 103 McWilliam AJ by the offender upon his Weapons Act 1996 observed at [47]: arrest. (ACT) (16 May 2023) In the present case, the The offender was holding prohibited weapon was a the prohibited weapon in his (CC2023/4959). cannister of OC spray. Absent hand prior to arrest. any evidence concerning the weapon's past or intended This matter tends toward future use, viewed in isolation lower objective seriousness the possession of the in the circumstances cannister could be assessed discussed at [137] – [138]. as a relatively minor offence: see R v Cole [2019] ACTSC 228 at [6]. However, it was nonetheless a dangerous weapon and posed a risk if used, particularly given the circumstances of the possession. It was located in an unsecured way, on top of a bedside table in the offender's bedroom. Additionally, it was found in close proximity to several stores of cannabis (in clip seal bags and otherwise). The prosecution submitted that these observations are apposite to the present matter. The prosecution further submitted the factors identified above will be considered in the context of the mandatory s 33 matters (see [136] – [137] of this judgment). Counsel for the offender: Counsel for the offender submitted that each offence is relatively low objective seriousness (see [138] of this judgment).

Family violence –aggravated offences by virtue of family violence

140. The prosecution submitted that in this matter the offender and the victim were in an intermittent intimate relationship since 2015, and thus the offending before the court involved family violence. The prosecution submitted that there was therefore statutory aggravation concerning all but three offences (the three excluded offences being, first the offence of using a carriage service to menace, harass, intimidate, the second being escaping arrest and the third being possessing a prohibited weapon). I underline the fact that most charges before me are aggravated charges by virtue of family violence. As a matter of law, double punishment must therefore be avoided.

141. I note the prosecution were not referring to s 34B of the Sentencing Act in this context: see R v Smith (No 2) [2022] ACTSC 246 (Smith (No 2)) at [107] and DPP v O’Connell (No 5) [2024] ACTSC 17 (DPP v O’Connell (No 5)) at [54].

142. Cases such as Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [54] have highlighted the importance of vindicating the dignity of the victim of such violence and also emphasised the importance of expressing the disapproval of the community of such offences.

143. R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 (Edigarov), the NSW Court of Criminal Appeal at [41] underlined that violent attacks in domestic settings are serious and involve aggressive acts by men who are often physically stronger. Such conduct and specifically the conduct of the offender in this case is “brutal, cowardly and inexcusable.”

144. Counsel for the offender correctly and properly submitted that the Court should be careful not to double count the family violence context as an aggravating factor (see Mammoliti v Callaghan [2022] ACTSC 259; Roberts v Smorhun [2013] ACTSC 218 [133]; R v Johnson [2005] NSWCCA 186 at [22]). I will of course take into account that double punishment must be avoided as a matter of law in light of the aggravated charges as referred to at [140]. The offender’s state of mind

145. The prosecution submitted that the Court should sentence the offender on the basis that he knew the victim did not consent to any of the acts. On my viewing of the footage, it is clear the victim was unconscious when the offending began and on becoming aware of the offending, the victim begged the offender to stop and attempted to escape. Again, on my viewing of the footage, the offences proceeded over some time and were accompanied by repeated assaults. There was no respect by the offender in any way for the victim’s personal autonomy and personal dignity. Finally, on my viewing of the video footage, it is clear that the offender was aware of the state of the victim at the time of the offending. This is a matter relevant to the moral culpability of the offender at the time of the offending. I note that the offender in evidence before me indicated that he now has a limited memory of what occurred. Nevertheless, as to the offender’s state of mind at the time, on my viewing of the footage, he was aware of the victim’s state at the time of the offending. That is a distinct and separate question as opposed to the question of subsequent memory.

Subjective matters

146. In evidence before me is a pre-sentence report (PSR) of February 2024 prepared for the offender who is now 37 years of age and was 36 years old at the time of the offending. Prior contact with corrections

147. The offender has been known to the ACT Corrections Service since 2013 when he was held in remand for previous domestic violence offences. The offender’s offences predominately reflect domestic violence or driving violations. The offender has been the subject of several community-based orders. His compliance was considered unsatisfactory, with the offender reoffending during the order period. During custodial periods the offender has been subject to several disciplinary procedures. No incidents have been reported during this remand period. The offender’s family / marital status

148. The offender is one of two children born to his parent’s union in Canberra. The offender described exposure to family violence due to his father’s alcohol use prior to his parents’ separation when he was eight years old. The offender advised that following their separation his father continued to harass the family unit. The offender reported when he last resided with his father, they were both engaging in illicit substance use which led to his eviction from his father’s home.

149. The offender has consistently reported his father as a negative role model. The offender noted that his mother was strict during his upbringing and that his mother has high expectations which he cannot meet which has led to frequent disagreements. The offenders’ relationship with his parents is strained and he has not had contact since entering custody. The offender reported a supportive relationship with his sister who corroborated the nature of her ongoing relationship and that he is estranged from his parents.

150. The offender is the father of four children to his former partner against whom he has committed family violence offences. The offender’s former partner confirmed they now hold a civil relationship regarding their children and that she is willing to support ongoing contact.

151. The offender reported he was in an on again off again relationship with the victim of his current offences for seven years. He described the relationship as being characterised by drug co-dependency, toxic communication, and family violence. Accommodation

152. Prior to his arrest the offender was residing with his mother. Education/employment

153. The offender completed year 12 at mainstream schooling in the ACT. Service records indicate that he has worked in the construction industry, although he has not worked for several years due to substance misuse and was in receipt of Commonwealth Income assistance prior to this remand period. The offender’s sister confirmed when he is substance free, he has a positive experience of employment. Financial situation

154. The offender acknowledged problematic gambling which is compounded by a desire to gamble whilst under the influence of illicit substances. The offender’s sister confirmed he is known to gamble at problematic levels. The offender disclosed that he has a debt relating to his substance use of $30,000 which he is incapable of paying. Companions

155. The offender advised he had distanced himself from his pro social companions as he was embarrassed by his substance misuse. Drug use

156. The offender advised he commenced smoking cannabis at the age of 19 before progressing to smoking methamphetamine and heroin following the breakup of his relationship with his children’s mother ten years ago. The offender advised he has not attempted treatment in the past although he stated he applied to access treatment prior to his arrest as he was concerned about his escalating drug use.

157. The offender stated the victim routinely attended his residential address in the months preceding the offences and they were sharing GHB which was a new substance to him at the time. Service records indicate that the offender has been supported to apply to an ACT based recovery hub and an interstate rehabilitation service although he was not aware of the status of the applications.

158. On 29 January 2024, the Drug Abuse Screening Test (DAST-10) was applied to assess the offender’s drug use. This is a self-report questionnaire intended to gather information about the respondent’s drug use over the past 12 months. The offender’s responses suggest his drug use over the past 12 months to be at a severe risk level.

159. On 29 January 2024, the Alcohol Use Identification Tool (AUDIT) was applied to assess the offender’s alcohol use. This is a self-report questionnaire intended to gather information about the respondent’s alcohol use over the past 12 months. The offender’s responses suggest his alcohol use to be at a high-risk level. This self-assessment reflects an increase in the offender’s consumption in alcohol since he last completed self-assessments with this Service. Medical and mental health

160. ACT Health services confirmed the offender is receiving treatment and further assessment for schizophrenia and depression. At times the offender has refused to meet with Health professionals due to apprehension regarding fellow detainee interactions. The offender agrees with the diagnosis of schizophrenia acknowledging that auditory hallucinations relating to his deceased grandmother and his self-worth were present since he was aged in his mid-twenties. The offender confirmed that while he was under the influence of substances his hallucinations were not evident. The offender did not identify any links between his mental health and his offending. I deal with the application of the Verdins principles later in this judgment at [251] to [280] in light of subsequent submissions on this issue. Attitude to offences

161. The offender agreed with the Police Statement of Facts regarding the offences. He spoke positively regarding the victim and expressed his desire for her to be able to recover from his offences and raise her child. The offender downplayed the physical and psychological impact of his behaviour. Despite the nature of the offences the offender advised he considers choking and hair pulling as the worst criminal acts he has perpetrated.

162. With regards to the escape from custody offence, the offender also agreed with the Police Statement of Facts, advising at the time he had a negative relationship with his father and a heightened sense of paranoia. Remorse

163. The offender expressed remorse for his actions and considered he has responded positively to anti-psychotic medication which he commenced during this custodial period. The offender tried to place the blame on the victim for him having access to GHB and that this specific drug impaired his decision making at the time of the Index offences. His sister confirmed that whilst she is aware of the offences, she has not observed her brother portraying negative attitudes to females.

164. The offender did express the desire to complete in custody or community-based interventions recommended by this Service once he is sentence or released, however, his commitment is untested and may be motivated by the pending Court matters. Limited insight

165. The offender demonstrated limited insight into his offending pattern having acknowledged the use of family violence in three intimate partner relationships. The offender expressed that some of his thoughts may have been informed by witnessing family violence perpetrated by his father towards his mother. PSR conclusion

166. The PSR concludes that the offender appears to have experienced a traumatic upbringing due to family violence. The severity of the offender’s offending has escalated as has his reliance on illicit substances. It is of concern that the offender undertook a healthy relationships course while in custody on a previous occasion and that he did not apply those lessons when he returned to a relationship which he identified as unhealthy. The offender placed a high emphasis on the role that substance misuse played within his offending, despite a prolonged period of abstinence within custody the offender minimised the impact of his offending on multiple victims.

167. On 17 November 2023, a Community Operations Psychologist assessed the offender using the STATIC-99R risk assessment tool, resulting in the offender being assessed as an Above Average Risk of sexual re-offending.

168. According to an actuarial risk assessment, the offender has been assessed as a high risk of general re-offending. His main risk factors, according to this assessment, was his substance misuse, lack of accommodation or employment, mental health, and attitudes.

169. At this time the offender is a sexual offender who has not participated in treatment and there is little to suggest his risk of re-offending has been lowered (the PSR concluded that). The offender’s risk of re-offending may be lowered by meaningful participation in courses regarding his specific criminogenic risks of substance misuse, aggression, and sexual offending. Further reports

170. As part of the prosecution tender bundle, I was also taken to a Forensic Mental Health report by Dr Sivanathan, dated June 2023 (the Watt Report) and Intensive Correction Order Assessment reports (ICOs) from 2020 and 2023.

171. Counsel for the offender relied on a Forensic Psychological Report by Dr Christopher Lennings, dated 22 December 2023. This will be referred to in more detail later in this judgment at [178] – [179], [186] – [193], [237] – [249], [256] – [265], [270] – [279, and [300] - [303].

Oral evidence of the offender

172. In evidence in chief, the offender gave evidence concerning the following matters: (a) The offender’s relationship with the victim; (b) The offender’s rehabilitative efforts; (c) The offender’s alcohol and drug use; (d) The offender’s recollection of the offences; (e) The offender’s medication; and (f) The offender’s childhood and upbringing.

173. An issue arises as to the weight that should be given to the oral evidence of the offender. I deal with the submissions from both parties below. Submissions

174. At the outset I note that it is uncontroversial to observe that a matter of mitigation must be proven on the balance of probabilities and an aggravating matter on sentence must be proven beyond reasonable doubt by the prosecution: R v Olbrich [1999] HCA 54; 199 CLR 270.

175. In further written submissions to the Court, following the sentencing hearing, the prosecution submitted that the inconsistencies in portions of the offender’s evidence, in addition to his unsatisfactory answers on various topics, should lead the Court to reject his evidence. I do not accept the prosecution submission that the offender’s evidence should be rejected in total. I will deal with each submission.

176. The prosecution relied on a transcript of the Magistrate’s decision following the hearing of family violence offences. In that matter, the prosecution submitted the court made significant adverse findings in relation to the offender’s credibility. It is self-evident that my credibility findings must be based on the evidence given before me.

177. The prosecution submitted that the offender was given the opportunity in evidence-in-chief to explain the lies the prosecution asserted he told in his evidence during the Magistrates Court sentence proceeding on 28 April 2023. The prosecution submitted the offender resiled from his previous evidence and made vague and general assertions that ‘nothing was set in stone’ with respect to his rehabilitative efforts.

178. In relation to the present sentence proceeding, the prosecution submitted that during the interview for the preparation of Dr Lennings’ report the offender told Dr Lennings that “he was exposed from a young age to his father’s sexual activity with his mother… his dad would come home drunk and force sex with his mother, with he a witness to this.” The prosecution submitted that the offender has never reported this history to any previous author of a court sentencing report.

179. The prosecution further submitted that within the same report the offender denied ever hitting his domestic partners and denied being physically violent. I note Dr Leeming’s report states the following: “Mr Matas said he is not typically aggressive or hostile but seems to have problems in managing his emotions and behaviours in relationships. When discussing his domestic related assault charges, he denied hitting, but seems he used restraints (squeezing and grabbing to prevent partners leaving).” The prosecution submitted that the facts of the sentence for his most recent family violence convictions reveal this assertion to be untruthful. Further, the prosecution submitted that the offender’s explanation at the sentencing hearing for why he told Dr Lennings that he had never previously hit a domestic partner (because he thought that hitting meant “with a closed fist”) was “truly beggars” belief”. A review of the transcript relevantly includes the following: And now on paragraph 69, apparently you have denied hitting your domestic partner. Do you recall saying that?---Yes. I was - yes, I - I recall saying that. I've - I've never hit a partner with a closed fist before. But, yes, I've pulled hair, maybe slapped them, like, a slap. I believe that's, yes, now I believe that's hitting but before I thought with a closed fist, I've never hurt no one, no partner. So where did you get the idea that you needed a closed fist before there was physical violence on a partner. Where do you get that from?---I don't know. I don't - I don't know.

180. In my view, clearly the offender has sought to minimise his offending by drawing a somewhat deluded and self-justifying distinction.

181. The offender also reported that his mother was emotionally cruel and physically abusive towards him. The prosecution submitted that in previous reports the offender has stated that he had a “prosocial upbringing in his mother’s care.” I note in dealing with that prosecution submission that such matters concerning upbringing are not necessarily binary. Regrettably, an analysis of human behaviour and literature reveals that there can be prosocial values ostensibly taught in the home alongside the use of physical violence on children.

182. The prosecution further submitted that when asked about the inconsistencies in his self-reported alcohol use, the offender stated that he did not consider drinking one-to-two six packs of rum and coke every day as “drinking regularly.” The prosecution submitted that this is yet another example where the offender was prepared to say anything to explain away inconsistencies in his evidence. I do not accept this submission. Human beings are known to have self-induced delusions about their alcohol use. It struck me listening to the evidence in court, as more in the nature of lying to oneself, rather than lying to the court on this topic, in the case of the offender. This aligns with the offender’s lack of insight.

183. The prosecution submitted that the offender, in evidence-in-chief, stated he was unable to remember engaging in sexual activities with the victim. In cross-examination he gave evidence that he remembered “bits and pieces” of having sex with the victim. When asked to tell the Court specifically what he remembered, the prosecution submitted he was unable to give any cogent response, and the extent of his answer was that he remembered “me licking her out… and she maybe gave me head… That’s all I remember.” Having observed the offender giving this evidence it struck me that this portion of his evidence was difficult to accept. I do not accept this portion of the evidence.

184. The prosecution submitted that in both evidence-in-chief and cross-examination the offender stated that he was able to remember videoing the sexual activity. The prosecution submitted that despite this, he denied being able to remember what he was actually doing. In my view, having viewed the video footage, this evidence is difficult to accept. And consequently, I do not accept this portion of the evidence.

185. The prosecution submitted it is highly curious to say the least that the offender had a good memory of the lead up to the offending, and then his recollection failed. There is some force to this submission.

186. The prosecution submitted that when given the opportunity to say something to the victim of the offending, the extent of what the offender could manage was “I feel ashamed, disgraceful, unfair to [complainant]. Yes, just feel like a piece of shit.” The prosecution submitted that this is not a display of remorse. Additionally, I note that the offender also stated, “I acted like a pig.” To this end, Dr Lennings stated in his report that the offender’s avoidance of reminders of the incident indicated a meaningful sense of remorse. In my view, the offender has what can be described as limited self-insight. Nevertheless, within his limited perspective he has attempted to express real remorse. I do not accept the prosecution submission as to remorse.

187. Counsel for the offender submitted that the offender has a self-interested interpretation of the facts that remain in his memory just as he has a self-interested interpretation as to his attempts to carry out and engage in the past in rehabilitation. That is clear on the evidence of the offender. I agree. That is different to a finding that all the offender’s evidence was dishonest. A nuanced analysis rather than a sledge-hammer analysis is required for the purposes of individualised justice. The experience of the courts demonstrates that, human beings can be deluded rather than deliberately untruthful in assessing themselves.

188. Counsel for the offender submitted that the prosecution “cherry picked” the evidence to attempt to support their initial submissions. In my view, there is some force to that submission made by Counsel for the offender. (a) In response to the prosecution’s submission that the offender resiled from his previous evidence and made vague and general assertions that “nothing was set in stone” with respect to his rehabilitative efforts, counsel for the offender submitted that the “nothing was set in stone” evidence is accurate. Counsel for the offender submitted that the offender’s interpretation of that was selective in his self-interest. I agree with this submission on the evidence before me. (b) In relation to the offender’s evidence on “hitting with a closed fist,” counsel for the offender submitted the offender had selectively interpreted those events in an attempt to explain and minimize his culpability. My conclusion concerning this aspect of the offender’s evidence is at [180]. (c) Counsel for the offender submitted the evidence on “drinking regularly” is simply the offenders view and is clearly his explanation of this matter. Counsel for the offender submitted this does not amount to being untruthful. I note in this regard the transcript states: Now I'm just reading from the doctor's report at paragraph 31. You told Dr Lennings that you do not drink regularly and you limit your alcohol use because you're not a big fan of alcohol. Do you recall telling the doctor that?---Yes, I do. Can you explain the difference in those two things that you told the two different authors?---I drank nearly every day but not – not too – too much. Again, maybe two six-packs a day but not – if I was on ice or heroin, yes, I wouldn't drink as much but I'd still drink, I'd have a drink. You would drink one to two six-packs of rum a day?---Yes. About - approximately, yes, one to two. But you don't consider that as drinking regularly?---It's like I didn't because I was using drugs more. Remorse

189. The forensic report of psychologist Dr Lennings states that the offender “expressed profound shame and remorse for his behaviour. His avoidance of reading the police facts indicates his shame… his avoidance of reminders of that incident indicate a meaningful sense of remorse and guilt about what he has done.”

190. Counsel for the offender submitted that the offender’s remorse was reflected in Dr Lennings’ report. Additionally, counsel for the offender submitted that the pleas of guilty and early acceptance of responsibility provide some evidence of remorse.

191. The offender’s sister, in her letter to the Court dated 5 February 2024, states the offender has shown her that he is remorseful and ashamed of what he has done.

192. At the sentencing hearing, the offender expressed remorse stating, “I feel ashamed, disgraceful, unfair to [complainant]. Yes, just feel like a piece of shit really.”

193. In my view, there is evidence before me of both limited insight and of remorse on the part of the offender. It is appropriate to apportion some weight to the remorse expressed. Conditional liberty

194. At the time of the offending, the offender was subject to bail conditions while he was awaiting sentence for charges of assault, possessing a weapon, property damage, choking and making a demand accompanied by threats, all in a family violence context. Being subject to conditional liberty is an aggravating matter on sentence. See Field v The Queen [2020] NSWCCA 105 at [85] – [87]; see also R v Tran [1999] NSWCCA 109 at [15]; see also R v Bandy [2018] ACTSC 261 at [29].

195. I take this into account as an aggravating factor on sentence in accordance with the authorities.

Reference from the offender’s sister

196. A letter of support under the hand of the offender’s sister referred to above dated 5 February 2024 was tendered in support of the offender and includes the following: I am aware of the charges that Alan has pleaded guilty to. I have read the statement of facts. I understand how serious these charges are and I utterly condemn Alan’s actions towards his former partner… Nevertheless, I am still here in support of my brother. That is because I know the type of person he can be. There is good in him, particularly when he is clean and not using drugs. I am Alan’s only support at the moment, as my mother and father refuse to see him while he is incarcerated. I know that Alan is going to be sentenced to a lengthy sentence of imprisonment for these charges. I will continue to be there where needed to support him in improving himself to be a better person. I am willing to do that because I know Alan will benefit from that, so will our family and so will the greater community… …Alan has been through a lot, which has negatively impacted his mental state. Shortly after his relationship broke down with the mother of his children, he started abusing drugs and since then his life spiralled out of control. He exhibited unpredictable behaviour and suffered from severe depression. Alan has never really been the same for any long period of time since. He has had brief periods of abstinence over the years and when he has been clean, he has been like his old self. Unfortunately, his sobriety has been short-lived and each time he falls off the wagon he tends to commit serious offences… …The last few visits I’ve had with Alan at the Alexander Maconochie Centre have shown me that he is remorseful and ashamed of what he has done. I have seen this not only through words but also in his actual persona. He seems to be clean, and he is a blank canvas and looks to be in a dark place, struggling to come to terms with the horrendous things he has done. Whilst it will be no easy feat, I believe with the right direction, conditions and mental clarity, he can go back to being the hard-working community member he once was. I will continue to support him and encourage him to head in the right direction. (emphasis added)

197. I take this positive reference into account on sentence. Criminal History

198. The offender has a significant criminal history, including previous convictions for family violence for which he has served full-time imprisonment. However, as noted by counsel for the offender, he does not have any history of sexual offending.

199. The prosecution properly submitted the offender’s criminal history emphasises the need for specific deterrence and is relevant to assessing the offender’s likely prospects of rehabilitation.

200. It is well established that a prior criminal record cannot lead a sentencing court to increase a sentence beyond what is an appropriate and just sentence for the instant offence (Baumer v The Queen [1988] HCA 67; 166 CLR 51) as an offender must not be sentenced twice for past offending (Veen v The Queen (No 2) 164 CLR 465 (Veen (No 2)). I take these principles into account in sentencing the offender.

Pleas of guilty

201. On 13 October 2023, the offender entered pleas of guilty to the sexual offences before this court in the ACT Magistrates Court. The brief had been disclosed and the pleas were entered following a negotiation on the charges between the parties.

202. On 23 November 2023, the offender entered pleas of guilty to the charges of escaping arrest and possessing a prohibited weapon in the ACT Magistrates Court. The brief had been disclosed and the plea was entered following a negotiation on the charges between the parties.

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

204. Murrell CJ noted in Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [44] that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [50].

205. In accordance with s 35 I would allow a 25% mathematical discount for the plea of guilty. In this case, I take the early plea into account in consideration of the matters under ss 33. I note that this 25% discount is subject to a decision concerning 35(4) in relation to the ACT offences which I discuss below.

206. There is one Commonwealth charge; an offence of using a carriage service to menace, harass, intimidate contrary to s 474.17(1) of the Criminal Code 1995 (Cth). In 2020, s 16A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) was amended with effect for any sentence imposed on or after 20 July 2020: see Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) sch 8 item 1. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (Harrington) prohibited a court from taking into account the utilitarian value of a plea. A 25% discount is appropriate.

207. The prosecution submitted that the court must not make any significant reduction based on the offender’s plea of guilty concerning ACT offences if the court considers the prosecution case was overwhelmingly strong (s 35(4) of the Sentencing Act).

208. The prosecution further submitted that, in the present matter, in relation to the sexual offending caught on video footage, the case was overwhelmingly strong. In those circumstances, the prosecution submitted that s 35(4) of the Sentencing Act is engaged and the court should not afford any significant reduction on account of the plea of guilty.

209. Counsel for the offender submitted that the offender’s pleas of guilty were entered at an early stage and warrant some discount.

210. Counsel for the offender further submitted, as the offender will inevitably be sentenced to a term of imprisonment, s 35 of the Sentencing Act applies, and provides at sub-section (2) that the Court must consider: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and counsel for the offender about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement.

211. While counsel for the offender conceded that the video evidence of the offending entails that the case against the offender was strong, nevertheless it was submitted that is not necessarily the end of the matter, and it does not make it overwhelmingly so. Counsel for the offender further submitted that in sexual assault matters (particularly when there is a longstanding sexual relationship between the parties) where consent or the ability to consent is an issue (as opposed to whether or not the acts occurred), it could not be described as ‘overwhelming’. It was submitted s 35(4) of the Sentencing Act is not enlivened so as to preclude any significant discount.

212. I note that in supplementary submissions following the sentencing hearing, the prosecution replied to counsel for the offender’s submission in this regard, stating insofar as this is a suggestion that the prosecution may not have been able to prove a lack of consent, or that the accused was reckless as to the complainant’s consent at trial, the prosecution noted matters including the following: (a) The offending was video recorded. (b) The complainant was unconscious when the offending began. (c) The complainant repeatedly voiced her non-consent throughout the entire incident.

213. The prosecution referred to Mossop J’s discussion of s 35(4) in R v Snowden [2022] ACTSC 186 at [47].

214. Counsel for the offender referred to R v Campbell [2017] ACTSC 74 (R v Campbell), Murrell CJ at [6] on the question of discount.

215. Counsel for the offender properly submitted that the offender entered pleas of guilty prior to committal, saving significant resources which would have been required to try the offender for all 25 offences, as well as the very considerable distress that would be caused to the complainant should the matter have proceeded to trial.

216. Counsel for the offender submitted in the circumstances the offender is entitled to a substantial discount for his plea, of at least 15%. In my view, on the unusual facts of this case there is some force to this submission.

217. Taking into account the relevant matters discussed above, in my view, a discount of approximately 15% rather than 25% is appropriate for the ACT offences that were video recorded and the related ACT technology-based offences where the cases can be said to be overwhelmingly strong in light of s 35(4), for the following reasons: (a) As stated in Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 (Loukas-Karlsson J and Mossop J agreeing), the strength of the prosecution case is only relevant to the guilty plea discount if s 35(4) is enlivened. In the case of the offences which the offender actually filmed himself committing, the case cannot be said to be anything other than overwhelmingly strong. Similarly, that is the case for the ACT technology-based offending (CC2023/5880 aggravated capture intimate data and CC2023/5885 aggravated non-consensual distribution of intimate images) where the relevant technology unequivocally captures the offending. In these circumstances, the significant reduction of 25% will be reduced to approximately 15% for these offences. (b) It is clear that what is a significant reduction in sentence may vary from case to case, taking into account the percentage discount and/or the various sentences: see Snowden at [47]; DPP v Stewart [2023] ACTSC 252 at [90]. (c) In my view, in this case, taking into account the percentage reduction from 25% to approximately 15% and the length of the relevant sentences for the offending, 15% is the appropriate discount applying the principles articulated in the authorities discussed above.

Escape arrest and possessing prohibited weapon matters

218. On 23 November 2023 the offender pleaded guilty to the charges of escaping arrest and possessing a prohibited weapon in the ACT Magistrates Court. The brief had been disclosed and the pleas were entered following a negotiation on the charges between the parties. In this matter, it was anticipated that further charges may be proffered, and the matter was adjourned on a number of occasions for that reason.

219. Counsel for the offender submitted the offender is also entitled to a significant discount for his plea of guilty in respect of these matters.

220. Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate.

Time in custody

221. There has been 136 days from the date the offender’s previous full sentence ended (6 March 2024) to the date of this decision.

222. On 1 December 2021, the offender was refused bail in relation to unrelated family violence offences. He remained in custody until 5 September 2022 (minus one day of day bail).

223. The offender was brought into custody again on 28 April 2023 and remained there until 3 May 2023 at which time he was released to bail.

224. On 16 May 2023 the offender was refused bail in relation to the present offences.

225. On 8 December 2023 the offender was sentenced in the ACT Magistrates Court to 19 months imprisonment from 7 August 2022 to 6 March 2024 (backdated to take into account all pre-sentence custody), with a non-parole period of 12 months, expiring on 6 August 2023.

Hardship in custody

226. Counsel for the offender submitted the offender has been the victim of two prior serious assaults while incarcerated at the Alexander Machonchie Centre (AMC). In July 2023, the offender was subject to another further assault by an inmate who ‘partly chewed off’ the offender’s right ear. The offender gave evidence that the assault has led to the perpetrator being charged. Given the offender’s vulnerabilities in custody, he is housed as a protected inmate.

227. Counsel for the offender further submitted that every year in protective custody is equivalent to a longer loss of liberty under the ordinary conditions of imprisonment and further submitted that the hardship suffered by the offender, because he will be in protective custody, is a matter to be taken into account in sentencing. Counsel referred to Davidson v Director General Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 and the preliminary findings of an investigation into conditions at the AMC reported in the Canberra Times on 1 March 2024.

228. Relevantly, in R v Kirkwood [2022] ACTSC 148, Kennett J stated the following at [108] – [112]: 108. It is well recognised in the Australian authorities (see, eg, R v Cartwright (1989) 17 NSWLR 243) that, ordinarily, time spent in protective custody is more onerous than time under ordinary conditions of imprisonment. 109. However, this Court cannot take a general mathematical approach to the issue of protective custody by equating time spent in protection to an equivalent period spend under ordinary conditions. Nor can the Court assume that, in the specific matter before it, protective custody is more onerous than custody under ordinary conditions. 110. Rather, the Court must consider, on the basis of evidence before it about the actual or likely custodial conditions of the offender, whether the conditions are such that the offender will face additional hardship. … 112. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47, [64], [66].

229. The prosecution, in my view, properly submitted that in the present matter there is limited evidence as to the actual conditions of the offender’s incarceration in protection, and whether this amounts to additional hardship for the purposes of sentencing. Comparable cases

230. It is well established that bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Broadly that is, statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences that can be referred to on this question of comparable cases. Additionally, it should be noted that, as the High Court stated in DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] (Dalgliesh): [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

231. Attached as an annexure to this judgment is a table of cases from this jurisdiction that provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

232. It is well established, as stated in Dalgleish at [2], that while sentencing patterns in a jurisdiction should be considered as part of the sentencing exercise, they should not be elevated to be a primary or determinative consideration, and that the sentence is to be "proportionate to the objective gravity of the offending and the moral culpability of the offender".

233. I note that case summaries were provided by the prosecution. Regrettably, I must note that the summaries provided by the prosecution included some significant errors. As for example, indicating the wrong sentence and not naming the correct sentencing judge. Corrections where relevant have been made to the annexure attached to this judgment.

Application of Bugmy principles

234. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), the High Court stated that where an offender has been raised in a community surrounded by alcohol abuse and violence that circumstance may mitigate the sentence because moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy at [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [44]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]: An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (emphasis added)

235. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that: (a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44]; (b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [43] - [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and (c) the application of the Bugmy principles is not discretionary: Irwin at [3].

236. Originally, in written submissions, counsel for the offender did not submit that the offender’s circumstances enliven the Bugmy principles. Nevertheless, counsel for the offender submitted that it is still relevant to the offender’s background and moral culpability. In further submissions provided after the sentencing hearing, counsel for the offender submitted that the offender’s circumstances are sufficient to engage the Bugmy principles.

237. Counsel for the offender submitted that the offender grew up in a dysfunctional and abusive family environment, exposing him to both violence and sexual violence within relationships. The report of Dr Lennings states the offender was subject to emotional and physical abuse by his mother and father while growing up. The report states the offender referred to his father as “drunk and sexually aggressive and forcing sex on his wife,” and “a violent man” who would “be cruel” to the offender. Paragraph 16 of the report further states: He says he was not sexually abused but his dad would come home drunk and force sex with his mother, with he a witness to this. Although Mr Matas did not consider he had been sexually abused, being forced to watch non-consensual sex at a young age does constitute sexual abuse, especially as such behaviour was often associated with violence. Such behaviour occurred when he was still a child and before his father left the home when Mr Matas was aged 7 years.

238. The report of Dr Lennings further states that the offender referred to his mother as “”old school”, strict and physically aggressive” to him. At the sentencing hearing the offender stated his mother would hit them, not let them go out, not let them bring friends over and make them sit and watch TV and not move. The offender also recalled being punished for “little things” such as touching the table with dirty hands. The offender stated this occurred close to every week. When asked in cross-examination why the offender didn’t tell the authors of the PSR or ICO assessment reports about this, the offender stated “I’m not sure if I was ever asked… If they asked me, I would have.”

239. The report of Dr Lennings further states that the offender “developed a dysfunctional attachment system and the combination of chaotic attachments, and the role of modelling of violence within relationships he experienced as a child seems to have established adult behaviours that reflect this early dysfunction.”

240. The prosecution submitted that the offender had never reported that “his dad would come home drunk and force sex with his mother, with himself a witness to this” to any previous author of a court sentencing report. The prosecution submitted that the Court should reject the explanation that this was simply because he was never asked about it. Further, the prosecution suggested that the Court ought to view the evidence that the offender was a witness to his father ‘forcing sex’ on his mother with a degree of circumspection. The prosecution submitted that the offender’s evidence on this was somewhat unclear in court, however the prosecution submitted that in oral evidence Dr Lennings clarified that the offender did not say he was forced to watch non-consensual sex.

241. In my view, the prosecution submission concerning this evidence is not entirely accurate. Further, the prosecution slant on this evidence is somewhat tendentious. This is reflected in the transcript extracted and set out below.

242. I note that the oral evidence of Dr Lennings was that the words “being forced to watch non-consensual sex,” were Dr Lennings’ opinion as to what the offender had told him, as opposed to the exact words of the offender. However, although these words were Dr Lennings’ summary of what the offender had said as opposed to the verbatim words of the offender, this does not mean that the offender did not describe, in other words to Dr Lennings, a situation where this occurred. Dr Lennings’ report states the following: He says he was not sexually abused but his dad would come home drunk and force sex with his mother, with he a witness to this. Although Mr Matas did not consider he had been sexually abused, being forced to watch non-consensual sex at a young age does constitute sexual abuse

243. At the sentencing hearing, Dr Lennings stated the offender further reported: He was exposed to watching his father act in a sexually aggressive way towards his mother. In evidence, I heard him say that he would then insert himself between them in order to try and protect his mother. That's what I was talking to him about was the fact that there was this combination of sexual violence and aggression on the part of his father when his father was inebriated.

244. I note the transcript of the sentencing hearing further states: He says he was not sexually abused but his dad would come home drunk and force sex with his mother, with he a witness to this.?---M'mm. Yes. Although Mr Matas did not consider he had been sexually abused, being forced to watch non-consensual sex at a young age does constitute sexual abuse.?---Yes.

245. The transcript further states: Yes. So in relation to Mr Matas reporting that he was forced to watch non- consensual sex, is that something that he reported?---He was exposed to watching his father act in a sexually aggressive way towards his mother. In evidence, I heard him say that he would then insert himself between them in order to try and protect his mother. That's what I was talking to him about was the fact that there was this combination of sexual violence and aggression on the part of his father when his father was inebriated. You used the term 'sexual violence'?---Yes. I just want to understand, did Mr Matas say to you during your interview that he was forced to watch non-consensual sex?---Okay. So what he told me was his dad would come home. His dad would be angry. His dad would then try and force sex with his mum and that he would be there, present watching it, wasn't able to get away. I didn't ask him why wasn't able to get away and I'm sorry about that. Later, I gather, that from the evidence that he gave is that he would, in fact, try and protect his mother. It's not unusual in situations like that that young children try sometimes to protect the parent they see being abused. From that answer, what I understand then is that he did not say he was forced to watch non-consensual sex. That his answers on this topic related to his father coming home drunk and him having to insert himself between his father and his mother where both parties were angry?---Okay. So what we're talking about is the sentence where I have written, 'Being forced to watch non-consensual sex at a young age does constitute sexual abuse.' That is my opinion. Okay. So he doesn’t say that he is forced. What he says is that his dad would come home drunk and would force sex with his mum and he would be a witness to it. That's what he told me. But within an understanding of what actually happens in families, the situation arises that that, being a young boy so aged between 5, 6 or 7, in that engagement he is unable to exercise agency or independence. He has to basically be there, put up with it, in this case, try and intervene if he possibly can. It is my opinion that that implies an element of force. (emphasis added)

246. Thus, it is simply not correct for the prosecution to submit that “in oral evidence Dr Lennings clarified that the offender did not say he was forced to watch non-consensual sex.” That is not a proper summary of the evidence as set out above. I reject that prosecution submission as oversimplifying the evidence.

247. The prosecution ultimately submitted that given the offender’s lack of credibility, the Court could not make any finding on the balance of probabilities as to the nature and extent of any childhood disadvantage suffered by the offender, which is ultimately relevant to the Court’s assessment of the opinion of Dr Lennings.

248. The prosecution further submitted that even if the offender’s evidence were accepted, it simply does not amount to what Dr Lennings refers to as a “harsh and dysfunctional childhood exposing him to both violence and sexual violence” which caused a “severe attachment disturbance” that was subsequently relied on to make his diagnoses.

249. Having had the opportunity of seeing both the offender and Dr Lennings give evidence, I disagree with the prosecution submission concerning the credibility of the offender’s evidence in this specific regard. The evidence of both the offender and Dr Lennings had the benefit of verisimilitude in the context of the other evidence in this case. To my mind it was not illogical evidence when analysed in context and with the history of the offences committed by the offender. The question is one of weight to be attributed and the consideration of the countervailing factor of specific deterrence.

250. In any event, this aspect of the case overlaps to a significant extent with the next topic concerning the application of the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) in relation to mental health.

Mental condition / Application of the Verdins principle

251. The Victorian Court of Appeal in the case Verdins set out the relevance of mental health to sentencing at [32]: Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways: 1․ The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2․ The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3․ Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4․ Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5․ The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6․ Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. (emphasis added)

252. Relevantly, the importance of the countervailing factor was referred to by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 (Engert) at [71]: In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. (emphasis added)

253. Subsequently, the countervailing factor was also referred to by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [45] – [47]: [45] The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing: “A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.” … [47] The appellant's case also relies on the evidence of his mental illness. As noted, the significance of a mental disorder to sentencing was the issue in Engert. Gleeson CJ observed that the existence of a causal relationship between an offender's mental condition and the offence does not automatically operate to reduce the sentence and that the absence of such a connection does not automatically mean that the sentence will not be reduced. The appellant relies on the latter statement. He submits that Hoeben JA wrongly held that evidence of an offender's mental illness or disorder may only be taken into account when it has contributed (directly or indirectly) to the commission of the offence. Hoeben JA's conclusion that Judge Lerve erred in taking the evidence of the appellant's mental condition into account did not depend on the absence of a causal connection with the offence. His Honour accepted the prosecution submission that the general terms of Dr Westmore's diagnosis were an inadequate foundation on which to give lesser weight to the consideration of deterrence.

254. The offender has a lengthy history of mental conditions. Previously, the offender has been diagnosed with depression and presented with suicidal ideation.

255. The Forensic Mental Health Report by Dr Sivanathan, dated 16 June 2023, states that in 2023, the offender was assessed by psychiatrist Dr Chan in custody who reported the offender demonstrated early symptoms of schizophrenia. The offender then began anti-psychotic medication.

256. On 21 December 2023, Dr Chris Lennings conducted a psychological assessment of the offender which outlines the offender’s numerous diagnoses.

257. Dr Lennings outlines the offender’s diagnosis as follows: (a) Pervasive Depressive Disorder (Dysthymia) DSM 5 Code 300.4 (F34.1) with recurrent episodes of Major Depression (DSM 5 Code 296.33); (b) Generalised Anxiety disorder (but with panic features) DSM5 Code 300.02; (c) Stimulant Abuse disorder DSM 5 Code 304.4 (Severe); (d) Sedative, Hypnotic or Anxiolytic Related Disorder (GHB) DSM 5 Code 304.1 Severe; (e) Opiate Abuse Disorder DSM 5 Code 304; and (f) Gambling disorder DSM 5 Code 312.31

258. Dr Lennings also listed two further diagnoses that require further investigation but do seemingly cause significant impairment for the offender being: (a) Complex Posttraumatic Stress Disorder (ICD 11 diagnosis Code 6B41) (b) Cluster A Personality disorder (especially Schizotypal PD DSM 5 Code 301.22) as alternative to emerging Schizophrenia (DSM5 Code 295.9) or Schizophreniform Disorder (DSM 5 Code 295.4)

259. Dr Lennings stated: There is some concern he may be developing a psychotic illness although at this stage I am not sure that the residual psychotic symptoms he appears to have (hearing voices and paranoia) are psychotic in origin or may be explained by his level of trauma and anxiety (i.e. dissociative phenomena). On my assessment Mr Matas does not seemingly meet full criteria for schizophrenia but may have suffered from a time limited schizophreniform disorder or may have more enduring disturbances deriving from Cluster A personality disorders such as paranoid personality disorder or schizotypal personality disorder (or a mix of symptoms within cluster A).

260. Dr Lennings also stated that given the substances the offender has used in excessive quantities over the years, a drug induced psychotic illness cannot be disregarded.

261. In relation to the nature and severity of the offender’s symptoms, and the likely effect of his condition on his mental capacity at the time of the offending and at the time of the assessment, Dr Lennings stated the following: …[T]he severe attachment disturbance developed from his childhood, and exposure to domestic violence and sexualisation of his behaviour encouraged by his father laid the foundations for his ongoing psychological disturbance. His disturbance was present prior to his mid-20’s in that he was unable to remain faithful in his relationships but until then he had maintained attendance at school to a reasonable degree and a stable work history and remained (albeit with infidelities) within a committed relationship. However, once that relationship broke down his impairments magnified greatly. Since then his diagnostic conditions have strengthened, his impairments as a result have deepened and effectively, he became incapable of developing stability in his adult life. He developed impairments in cognition (mental confusion, lack of awareness of his surroundings and behaviour) and in affect regulation (high emotional dysregulation, volatility, and unable to maintain intimacy for a focus on sexual gratification). (emphasis added)

262. Dr Lennings stated that the offender’s history is directly responsible for his diagnostic conditions. In Dr Lennings’ opinion, these conditions drive the offender’s severe substance abuse which he uses as a maladaptive coping behaviour. Dr Lennings stated that “these conditions are causative to the offences and were present at the time of the offences.”

263. Dr Lennings further states in his view “the impairments arising from his history and as manifested in his diagnostic conditions are primarily responsible for his offending behaviour.”

264. In written submissions, the prosecution correctly submitted that the focus should not be on the diagnostic labels, but the nature, extent, and effect of the relevant condition on the offender: R v Pickering-Wilson [2022] ACTSC 353 and Brown v The Queen [2020] VSCA 212; 62 VR 91 at [21].

265. The prosecution referred to R v Miller [2015] VSC 180 (Miller) at [33] where King J expressed concern about the overuse of reports as a basis for invoking the Verdins principles. Nevertheless, I underline in the context of determining the case before me that, of course, every case must be assessed individually on the evidence.

266. The prosecution noted there was only a 90-minute consultation with the psychologist and the prosecution submitted the doctor’s opinion is entirely based on the offender's self-reporting in circumstances where this Court would afford little weight to the offender’s word (see [172] - [186] above).

267. The prosecution correctly noted that in any event, the mere presence of a mental impairment does not automatically engage the Verdins principles and mitigate the sentence, relying on Aslan v The Queen [2014] NSWCCA 114 where Simpson J stated at [34]: It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. (emphasis added)

268. Thus, the prosecution submitted that mental illness did not lead to the consequences contended for. I deal with my conclusion concerning this at [280].

269. Furthermore, the prosecution submitted that the effects of the use of methamphetamine were well known to the offender at the time of the present offending. In my view, there is clearly force to this submission on the evidence before me.

Prosecution submissions relating to the evidence of Dr Christopher Lennings

270. In further written submissions following the sentencing hearing, the prosecution made the following points in relation to the evidence of Dr Lennings’ evidence: (a) The prosecution took issue with Dr Lennings’ opinion that the offender’s diagnostic conditions are “causative to the offences” and are “primarily responsible for his offending behaviour.” (b) The prosecution submitted that the oral evidence in relation to the causative effect of his mental state was, in summary, that the accused’s childhood set up vulnerabilities, and those became activated by later events, namely the breakup with his serious partner which was the “trigger event” and was the catalyst to drug use, which then “further erodes his functional capacity.” The prosecution stated that Dr Lennings in his written report stated that “the vulnerability of his abusive childhood” lead to a “severe disturbance of attachment.” I note that the report states: “The vulnerability his abusive childhood created, the re-emergence of his father and his father’s noxious influence on him in his mid-twenties, and the onset of self-destructive poly-substance abuse following the breakdown of his relationship coalesced. Mr Matas’ primary difficulties remain his problems in maintaining abstinence and negotiating relationships. These two elements are linked through the severe disturbance of attachment that has dogged his life since. His early exposure to domestic and sexual violence and his father’s influence in that regard appears to have led to a sexualisation of his relationships, and his volatility within them.” (c) The prosecution submitted that in oral evidence Dr Lennings accepted that if the self-reported events about the offender’s childhood were not true that might impact on his diagnosis, in particular the issue around attachment disorder.

271. The prosecution then correctly made the following submissions with respect to the limitations of Dr Lennings’ report: (a) The doctor accepted that a longer interview period is “always better.” (b) The doctor accepted that he did not corroborate the offender’s answers in the interview with other relevant people and accepted that this would have been of “great assistance” with reference to the offender’s early childhood. (c) The doctor told the court that his diagnoses were “provisional,” and that there were a couple of diagnostic issues that required further investigation through a detailed inpatient process.

272. In relation to the psychological evidence itself, the prosecution further submitted that the opinions of Dr Lennings should be afforded limited weight taking into account the offender’s self-reporting. In my view, some weight is appropriate: see [280].

273. Further, the prosecution submitted that even on the basis that the report and opinions of Dr Lennings were accepted, that there is an insufficient causal connection such as to reduce the offender’s moral culpability. The prosecution relied on R v Lindsay [2020] ACTCA 25 (Lindsay) the court considered the approach to causal connection and moral culpability at [35]-[36]: [35] Adopting the approach to causal connection and moral culpability in Muldrock at [54], in Ngata v The Queen [2020] ACTCA 18 at [21], this Court said: In order to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending. It may be made out by evidence which establishes that the offender’s mental impairment affected his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, impaired his ability to make calm and rational choices or to think clearly at the relevant time. (citations omitted) [36] The import of these decisions is that, generally, where an offender’s mental impairment has had a causative influence on offending behaviour, the offender’s moral culpability and hence the objective seriousness of the offence are moderated. An obvious exception to this general proposition is self-induced mental impairment, e.g. through the voluntary ingestion of drugs. At the same time, mental impairment may inform other matters relevant to fixing an appropriate sentence, such as the offender’s ability to cope with imprisonment and the sentencing purposes that are invoked in the particular sentencing exercise.

274. Based on this, the prosecution therefore submitted that the explanation is that it was the offender’s intoxication alone, through the voluntary ingestion of drugs and alcohol, that lead to the offending. The offender stated in evidence that “it was mostly the combined use of drugs and alcohol that I acted like a pig.” The prosecution submitted that any link to an underlying matter is remote.

275. Finally, and in my view more relevantly, the prosecution properly submitted that the offender’s diagnoses, if accepted, would not exclude or reduce the need for specific deterrence or the need to protect the community as relevant sentencing factors, for the following reasons: (a) The offender has been assessed as a high-risk of general re-offending. (b) The offender has been assessed as in the top quartile of offenders for risk of recidivism generally, and in the second highest risk category for domestic violence. (c) The offender has been assessed as an average or above average risk of sexual re-offending. (d) The offender has no insight into his offending and limited prospects of rehabilitation. (e) The objective seriousness of the offending. Counsel for the offender submissions

276. Counsel for the offender submitted that in light of the findings by Dr Lennings in relation to the offender’s mental conditions, his moral culpability is reduced.

277. Further, counsel for the offender submitted that the Verdins’ principles are enlivened and relevant in all six ways. Counsel for the offender relied on R v Park [2017] ACTSC 26.

278. Counsel for the offender further submitted that while Dr Lennings’ time face-to-face time with the offender was limited, that does not undermine his findings. Counsel for the offender submitted that the Court must consider Dr Lennings had access to substantial briefing material, including prior mental health assessments of the offender and two psychometric measures (the Paulhus Deception Scale and the Personality Assessment Inventory) completed by the offender prior to their interview. Counsel for the offender further submitted that Dr Lennings, (a highly experienced forensic psychologist in the area of sexual offending) asked questions that were geared towards the offender’s sexual experiences and it is therefore unsurprising that information not previously divulged was provided to Dr Lennings, in light of the offender’s previous lack of sexual offending (and therefore lack of questioning about the offender’s sexual experience) and noting Dr Lennings’ professional speciality in sexual offending. In my view, there is clearly force to this submission on the evidence before me.

279. Counsel for the offender submitted that Dr Lennings’ report stated the history of the offender (both his drug and alcohol taking and his personal history dating back to his early childhood experiences), played a role in the 6 DSM disorders he assessed that the offender has. Counsel for the offender submitted that Dr Lennings’ opinion is that these conditions are causative to the offences the offender has pleaded guilty to and these conditions were present at the time. Again, in my view, there is force to this submission on the evidence before me.

Conclusion in relation to the application of Bugmy and Verdins principles

280. In respect of the application of the overlapping Bugmy and Verdins principles in this case, there is a countervailing issue as to specific deterrence and the sentencing factor of protection of the community (that is, protection of the community as opposed to preventive detention): see Veen (No 2) at [472] – [473]; see DPP v Muell [2024] ACTSC 184 at [198] – [199]; R v March [2023] ACTSC 28 at [126]. In my view, some relevant weight may be accorded to the Bugmy and Verdins factors discussed above. Nevertheless, regrettably in this case, the countervailing issue of specific deterrence is important in the sentencing exercise concerning this offender. On the specific facts of this case, the weight of the Bugmy and Verdins factors are rendered somewhat nugatory in light of the countervailing factors: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] and see Engert; also see Jackson v The King [2023] NSWCCA 121 at [46] and [56]; see also DPP v Muell [2024] ACTSC 184 at [135] and [146]. Consequently, the weight that can be attributed on the facts of this case, to the Bugmy and Verdins factors (taking into account all relevant factors in the process of instinctive synthesis), is counterbalanced by the significance of the countervailing matters concerning the issue of specific deterrence relevant to this offender.

Statutory and other relevant considerations

281. Different statutory regimes apply to the sentencing of the offender, as he has pleaded guilty to both Commonwealth offences and territory offences.

282. The principles of sentencing for Commonwealth offences are contained in Part 1B of the Commonwealth Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).

283. Sentencing for the Territory offences is determined in accordance with the Sentencing Act.

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

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

286. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

287. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Pearce v The Queen (Pearce) [1998] HCA 57; 194 CLR 610; R v XX [2009] NSWCCA 115; 195 A Crim R 38. See also: Mill v The Queen (1988) 166 CLR 59 (Mill) at [63]: The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.” See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. (emphasis added)

288. In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 (O’Brien) at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 (Cahyadi) at [27]: [W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.

289. In relation to sentencing for sexual offences, in Miller CA [2019] ACTCA 25 the Court of Appeal (Burns and Loukas-Karlsson JJ) stated at [44]: The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim….[g]eneral 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. (emphasis added) Was offender affected by alcohol/drugs

290. The prosecution submitted that s 33(1)(p) of the CSA provides that the court must consider whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected. In the present matter the offender had been using GHB, ice, heroin, and alcohol at the time of the offending.

291. I note that in DPP v Rue [2023] ACTSC 270 (Rue) Taylor J considered the relevance of the offender’s intoxication at the time of the offending on sentence at [69]-[71]: [69] I accept that the offender was affected to some degree by self-administered GBL when the offence was committed. Sentencing courts across the country have consistently rejected the proposition that intoxication operates to mitigate the seriousness of an offence or to reduce an offender’s moral culpability. The offender submitted that his moral culpability is “somewhat reduced” by the “significant” effect upon him of the use of drugs. The offender cites R v Naing [2023] ACTSC 210 (Naing) in support of the submission. I do not accept that submission. I do not consider the circumstances in Naing to be analogous to the circumstances in this matter. Nor do I consider that the principles carefully articulated in Naing and elsewhere in relation to the limited circumstances in which the effect of intoxication can be taken into account on sentence as mitigation have application in this matter. [70] The Victorian Court of Appeal in Hasan v R [2010] VSCA 352; 31 VR 28 (Hasan) at [33] stated “that the circumstances must be quite exceptional before intoxication at the time of the offending can mitigate the offender’s moral culpability”. [71] Hasan at [21] referred to the “out of character” exception in the context of summarising the state of the law as it relates to intoxication and moral culpability: In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australian have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s moral culpability. An “out of character” exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol. No issue of that kind arises here.

292. Her Honour continued at [73]: the NSW Court of Criminal Appeal in R v Coleman (1990) 47 A Crim R 306 at [327] (per Hunt J with whom Finlay and Allen JJ agreed) observed “where the reason for the offender’s intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than mitigate”.

293. The prosecution correctly submitted that in the present matter the offender was on bail awaiting sentence for violent offending committed against his then-partner while he was heavily intoxicated by methamphetamine. The prosecution further correctly in my view submitted the offender well knew the impact this substance has upon his behaviour. In my view intoxication in this case cannot be mitigating.

294. The offender has a long history of drug addiction and self-reported daily use of methamphetamines, GHB and heroin, as well as irregular use of cannabis prior to being remanded in custody.

295. The offender reports his longest period of abstinence was about 6 months. At the time of Dr Lennings’ report, the offender was on the Buprenorphine program.

296. The offender correctly accepts that his use of illicit substances at the time of the offences does not mitigate his offending, however the counsel for the offender submitted it remains a relevant statutory sentencing consideration and submitted that the offender’s long history of drug addiction (which correlates with his criminal history), and his intertwined mental health conditions may provide a cogent explanation for his offending on this occasion.

297. In my view, the use of illicit substances at the time of the offences does not mitigate the offending. I agree that it provides an explanation. The explanation is no excuse. I note that the drug addiction and mental health issues are relevant to specific deterrence and rehabilitation.

Guarded prospects of rehabilitation

298. Rehabilitation is a sentencing consideration in this case.

299. Counsel for the offender submitted it is uncontroversial the offender’s prospects of rehabilitation would be assessed as guarded; however, he should not be written off as having no prosects of rehabilitation. I agree that the offender’s prospects of rehabilitation are clearly guarded at best, nevertheless rehabilitation must be considered.

300. Dr Lennings assessed the offender’s recidivism using STATIC-99R, the actuarial risk assessment device for sexual recidivism. According to this device, the offender falls within the average or above average range for a further sexual offence, depending on his release date. In Dr Lennings’ opinion, the offender’s risk is higher for a non-sexual (domestic violence) offence than for a further sexual offence.

301. Dr Lennings suggests the best path of rehabilitation is to benefit from feeling connected to people who care for him, namely his sister, children and former partner. Dr Lennings also notes the offender’s complex treatment needs in the report.

302. In cross-examination at the sentencing hearing the offender accepted that all his previous convictions for family violence offending involved the use of illicit drugs. These offences spanned 7 years, from 2014-2021. The prosecution submitted that the offender was asked about his rehabilitative attempts in that period, and he stated that he had “tried to do programs that I could,” and “I’ve never actually been to a rehab or got proper treatment. I’ve asked for help, but I’ve never got help.” The rehabilitation the offender had undertaken in the community was part of his parole conditions, but he didn’t complete that program.

303. The prosecution noted that Dr Lennings gave evidence that the offender’s rehabilitative treatment will be a “matter of motivation.”

304. As I stated earlier, on the evidence, the offender’s prospects for rehabilitation are guarded at best. I underline in the context of the offender’s evidence concerning rehabilitation that motivation in the moment is one thing and consistent effort to rehabilitate is another. The offender will have to prove himself both in gaol and on parole.

Cth and ACT Offences: Recognizance Release Order/Non-Parole Period

305. The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.

306. In relation to Commonwealth offences, the Court must fix a single recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: Commonwealth Crimes Act ss 19AC(1)(b), 19AC(3).

307. In accordance with s 19(3) of the Commonwealth Crimes Act, where an offender is sentenced to a term of imprisonment for Commonwealth and Territory offences, the Court is required to direct when the Commonwealth sentence commences, but so that: (a) No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (b) If a non-parole period applies in respect of a Territory sentence, the first federal sentence is to commence after the end of that non-parole period commences immediately after the end of that period.

308. As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing in the context of both Commonwealth and Territory offences, “a sentencing judge must accommodate the two distinct regimes.” Necessarily, the structure of the sentences imposed must accord with these two regimes. It is therefore appropriate to commence with the Territory offence and accumulate the Commonwealth offence upon this sentence in order to encompass the entire criminality associated with both the Territory and Commonwealth offences.

309. When considering how to structure the sentence, the prosecution noted the Court must sentence the offender for one Commonwealth offence (CC2023/5881) and thus must have regard to s 19(1) of the Commonwealth Crimes Act which relevantly states: (1) Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that: (a) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (b) if a non - parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non - parole period commences immediately after the end of the period. (2) … (3) Where: (a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that: (c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (d) if a non - parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non - parole period commences immediately after the end of the period.

310. In Morrison v Maher [2021] ACTSC 312 Mossop J referred to this matter at [30]: Section 19 of the Crimes Act 1914 (Cth) requires that when sentencing for both a federal and a Territory offence, the court has to direct when the federal sentence commences and the first federal sentence to commence must commence after the end of the Territory non-parole period immediately after the end of that period.

311. To this end, the prosecution noted that the sentencing regime provided for in the Commonwealth Crimes Act will apply to the sentencing task in relation to CC2023/5881, and it is important for the court to accommodate the two distinct sentencing regimes. I will take the two distinct sentencing regimes into account.

Totality

312. The principles concerning totality are well established. In O'Brien the Court of Appeal summarised the totality principles as follows: (a) When sentencing for multiple offences, a sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is "just and appropriate" for all the offences: Mill at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R ·159 at [18]. (d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi at [27].

313. Relevantly, in R v Tonari [2014] NSWCCA 232 the NSW Court of Appeal considered an appeal involving an offender convicted of multiple sex offences arising from the one episode on the same victim, which lasted a matter of minutes. The Court of Appeal observed that: It is always necessary, and the Crown so submitted, that when sentencing, the sentencing Judge recognises the need to acknowledge and have regard to the separate harm done by the different criminal acts of the offender. It is necessary when a court is sentencing for multiple offences for the sentencing court to have regard to the fact that there are multiple episodes of criminality. Often, but not always, total concurrency obscures the fact that different offences have been committed, and it does not necessarily recognise the total criminality involved. Thus, total or near total concurrency can often result in an overly lenient sentence.

314. Counsel for the offender properly conceded that the offending warrants a term of full-time imprisonment and any period imposed by the Court is likely to be lengthy.

315. Counsel for the offender correctly accepted that there must be some degree of accumulation to take account of the different offences in this matter. However, in circumstances where the vast majority of the offending effectively forms part of a course of conduct (noting the video footage of the incident is approximately 25 minutes), and is intrinsically connected, counsel for the offender submitted that to appropriately give effect to the consideration of totality, it would be appropriate for a significant degree of concurrency. I agree there must be a degree of concurrency.

316. Counsel for the offender submitted that the imposition of a sentence with a large degree of accumulation would be crushing and could fail to give appropriate effect to the principle of totality. Counsel for the offender referred to the risk of institutionalisation. I take the risk of institutionalisation into account.

317. Counsel for the offender submitted that there are considerations that are relevant as to the structure of the offender’s sentence for the Court including that while the offender is serving a sentence imposed in the ACT Magistrate’s Court on 8 December 2023, which expired on 6 March 2024, the offender was eligible for parole on 6 August 2023, but for the offender being bail refused on the matters currently before the Court. It is submitted the pre-sentence custody should be taken into consideration from at the latest, 6 August 2023, totalling 206 days. I agree and will backdate accordingly.

318. Relevantly concerning totality, I must deal with the interaction of s19(3) of the Commonwealth Crimes Act as discussed by Mossop J in Maher (No 2) [2022] ACTSC 63 at [176] and the application of s 65 and s 66 of the Crimes Act, in circumstances where the offender is no longer serving a sentence but is now currently being held on remand. Further, s 19AJ of the Commonwealth Crimes Act provides that a court cannot fix a single non-parole period, or make a recognisance release order, in respect of both federal sentences of imprisonment and State or Territory sentences of imprisonment. It was agreed between the parties that s 66 of the Sentencing Act has no application as the offender is not currently serving an existing sentence, and the Court is not required to re-set any non-parole period. However, the Court will still be required to set a non-parole period pursuant to s 65 of the Sentencing Act. It was further submitted by the parties that it is open to the Court to decline to make a recognisance release order for the Commonwealth offence pursuant to s 19AC(4)(b) of the Commonwealth Crimes Act, and commence the sentence for the ACT offences at the end of the sentence for the Commonwealth offence: see DPP v Gleeson (No 2) [2022] ACTSC 311 at [4] – [5]; DPP v Doughty [2023] ACTSC 397 at [125].

Sentence

319. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. Both the short and long-term consequences of being a victim of the offences must be acknowledged. The Court does so.

320. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender.

321. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/4896) is 10 months of imprisonment, reduced to 8 Months 15 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 16 December 2028 to account for the time already spent in custody.

322. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/4897) is 11 months of imprisonment, reduced to 9 months 10 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 15 February 2029 to account for the time already spent in custody.

323. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5848) is 12 months of imprisonment, reduced to 10 months 5 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 14 April 2029 to account for the time already spent in custody.

324. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5849) is 13 months of imprisonment, reduced to 11 months 1 day imprisonment on account of the plea of guilty. The offence will be backdated to commence on 13 June 2029 to account for the time already spent in custody.

325. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5850) is 14 months of imprisonment, reduced to 11 months and 27 days on account of the plea of guilty. The offence will be backdated to commence on 12 August 2029 to account for the time already spent in custody.

326. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/4898) is 15 months of imprisonment, reduced to 1 year 23 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 11 October 2029 to account for the time already spent in custody.

327. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5860) is 16 months of imprisonment, reduced to 1 year 1 month 18 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 10 December 2029 to account for the time already spent in custody.

328. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5861) is 17 months of imprisonment, reduced to 1 year 2 months 13 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 9 February 2030 to account for the time already spent in custody.

329. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5869) is 18 months of imprisonment, reduced to 1 year 3 months 9 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 8 April 2030 to account for the time already spent in custody.

330. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5870) is 19 months of imprisonment, reduced to 1 year 4 months 4 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 7 June 2030 to account for the time already spent in custody.

331. The appropriate sentence for aggravated sexual intercourse without consent (CC2023/5872) is 20 months of imprisonment, reduced to 1 year 5 months imprisonment on account of the plea of guilty. The offence will be backdated to commence on 0 August 2030 to account for the time already spent in custody.

332. The appropriate sentence for attempted aggravated sexual intercourse without consent (CC2023/5851) is 13 months of imprisonment, reduced to 11 month 1 day imprisonment on account of the plea of guilty. The offence will be backdated to commence on 6 November 2031 to account for the time already spent in custody.

333. The appropriate sentence for aggravated sexual assault in second degree (CC2023/4900) is 18 months of imprisonment, reduced to 1 year 3 months 8 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 8 November 2027 to account for the time already spent in custody.

334. The appropriate sentence for aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act (CC2023/5852) is 2 years imprisonment, reduced to 1 year 8 months 12 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 1 May 2024 to account for the time already spent in custody.

335. The appropriate sentence for aggravated sexual assault in third degree (CC2023/5863) is 2 years 2 months imprisonment, reduced to 1 year 10 months and 2 day imprisonment on account of the plea of guilty. The offence will be backdated to commence on 13 April 2025 to account for the time already spent in custody.

336. The appropriate sentence for aggravated sexual assault in third degree (CC2023/5868) is 2 years 4 months of imprisonment, reduced to 1 year 11 months 24 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 15 June 2026 to account for the time already spent in custody.

337. The appropriate sentence for aggravated act endangering health, being choking (CC2023/5876) is 16 months of imprisonment, reduced to 1 year 1 month 18 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 7 July 2032 to account for the time already spent in custody.

338. The appropriate sentence for aggravated common assault (CC2023/5873) is 7 months of imprisonment, reduced to 5 months 28 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 13 April 2025 to account for the time already spent in custody.

339. The appropriate sentence for aggravated common assault (CC2023/5877) is 7 months of imprisonment, reduced to 5 months 7 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 25 May 2033 to account for the time already spent in custody.

340. The appropriate sentence for aggravated assault occasioning actual bodily harm (CC2023/5879) is 12 months of imprisonment, reduced to 9 months imprisonment on account of the plea of guilty. The offence will be backdated to commence on 1 August 2033 to account for the time already spent in custody.

341. The appropriate sentence for aggravated capture intimate data contrary to s 61B(1)(a) of the Crimes Act (CC2023/5880) is 12 months of imprisonment, reduced to 10 months 6 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 31 October 2033 to account for the time already spent in custody.

342. The appropriate sentence for using a carriage service to menace, harass, or cause offence (CC2023/5881) is 12 months of imprisonment, reduced to 9 months on account of the plea of guilty. The offence will be backdated to commence on 1 August 2023 to account for the time already spent in custody.

343. The appropriate sentence for aggravated non-consensual distribution of intimate images (CC2023/5885) is 18 months of imprisonment, reduced to 1 year 3 months 8 days imprisonment on account of the plea of guilty. The offence will be backdated to commence on 6 June 2034 to account for the time already spent in custody.

344. The appropriate sentence for escaping arrest (CC2023/8575) is 20 months of imprisonment, reduced to 1 year 1 month 15 days imprisonment, on account of the plea of guilty. The offence will be backdated to commence on 14 June 2035 to account for the time already spent in custody.

345. The appropriate sentence for possessing a prohibited weapon (CC2023/4959) is 8 months of imprisonment, reduced to 6 months imprisonment, on account of the plea of guilty. The offence will be backdated to commence on 30 April 2036 to account for the time already spent in custody.

346. The overall aggregate Commonwealth and ACT sentence is 13 Years 2 months 29 days, beginning 1 August 2023 and ending 29 October 2036. The non-parole period is 7 years 6 months from the commencement of the sentence for the ACT offending; that is, 8 years 3 months from the beginning of the Commonwealth sentence. Thus, the non-parole period will be 60% in relation to and commencing from the ACT offences. Additionally, because the ACT sentences are accumulated on the Commonwealth offence; if one notionally includes the beginning of the Commonwealth sentence that constitutes a notional non-parole period of 62%. The offender will therefore be eligible for parole as at 31 October 2031.

347. In the offender’s case the non-parole period I impose is because I have formed the view that justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen (1974) 131 CLR 623 at [628] – [629] applied in Deakin v The Queen [1984] HCA 31; R v Simpson (2001) 53 NSWLR 704 at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v The Queen [2011] NSWCCA 7 at [27]; R v MA [2004] NSWCCA 92 at [33]-[34]; Hili at [40]. See R v BC (No 4) [2021] ACTSC 119 at [141].

348. Finally, I note the following. While the nature of charging is exclusively a matter for the prosecution, charging this number of offences does tend to engender a more complex and lengthy sentencing exercise. Nevertheless, I repeat the number of charges is a matter in the discretion of the prosecution.

Orders

349. For these reasons, I make the following orders: (1) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2023/4896) the offender is convicted and sentenced to 8 Months 15 days imprisonment that will commence on 16 December 2028 and expire on 30 August 2029. (2) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/4897) the offender is convicted and sentenced to 9 months 10 days imprisonment that will commence on 15 February 2029 and expire on 24 November 2029. (3) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5848) the offender is convicted and sentenced to 10 months 5 days imprisonment that will commence on 14 April 2029 and expire on 18 February 2030. (4) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5849) the offender is convicted and sentenced to 11 months 1 day imprisonment that will commence on 13 June 2029 and expire on 13 May 2030. (5) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5850) the offender is convicted and sentenced to 11 months and 27 days imprisonment that will commence on 12 August 2029 and expire on 7 August 2030. (6) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/4898) the offender is convicted and sentenced to 1 year 23 days imprisonment that will commence on 11 October 2029 and expire on 2 November 2030. (7) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5860) the offender is convicted and sentenced to 1 year 1 month 18 Days imprisonment that will commence on 10 December 2029 and expire on 27 January 2031. (8) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5861) the offender is convicted and sentenced to 1 year 2 months 13 days imprisonment that will commence on 9 February 2030 and expire on 21 April 2031. (9) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5869) the offender is convicted and sentenced to 1 year 3 months 9 days imprisonment that will commence on 8 April 2030 and expire on 16 July 2031. (10) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5870) the offender is convicted and sentenced to 1 year 4 months 4 day imprisonment that will commence on 7 June 2030 and expire on 10 October 2031 (11) On the charge of aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5872) the offender is convicted and sentenced to 1 year 5 months imprisonment that will commence on 06 August 2030 and expire on 05 January 2032 (12) On the charge of attempted aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act (CC2023/5851) the offender is convicted and sentenced to 11 month 1 day imprisonment that will commence on 6 November 2031 and expire on 6 October 2032 (13) On the charge of aggravated sexual assault in second degree contrary to s 52(2) of the Crimes Act (CC2023/4900) the offender is convicted and sentenced to 1 year 3 months 8 days imprisonment that will commence on 8 November 2027 and expire on 15 February 2029 (14) On the charge of aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act (CC2023/5852) the offender is convicted and sentenced to 1 year 8 months 12 days imprisonment that will commence on 1 May 2024 and expire on 12 January 2026 (15) On the charge of aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act (CC2023/5863) the offender is convicted and sentenced to 1 year 10 months and 2 day imprisonment that will commence on 13 April 2025 and expire on 14 February 2027 (16) On the charge of aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act (CC2023/5868) the offender is convicted and sentenced to 1 year 11 months 24 days imprisonment that will commence on 15 June 2026 and expire on 7 June 2028. (17) On the charge of aggravated act endangering health, being choking contrary to s 28(2)(a) of the Crimes Act (CC2023/5876) the offender is convicted and sentenced to 1 year 1 month 18 days imprisonment that will commence on 7 July 2032 and expire on 24 August 2033 (18) On the charge of aggravated common assault contrary to s 26(2) of the Crimes Act (CC2023/5873) the offender is convicted and sentenced to 5 months 28 days imprisonment that will commence on 13 April 2025 and expire on 10 October 2025. (19) On the charge of aggravated common assault contrary to s 26(2) of the Crimes Act (CC2023/5877) the offender is convicted and sentenced to 5 months 7 days imprisonment that will commence on 25 May 2033 and expire on 31 October 2033 (20) On the charge of aggravated assault occasioning actual bodily harm contrary to s 24(2) of the Crimes Act (CC2023/5879) the offender is convicted and sentenced to 9 months imprisonment that will commence on 1 August 2033 and expire on 30 April 2034 (21) On the charge of aggravated capture intimate data contrary to s 61B(1)(a) of the Crimes Act (CC2023/5880) the offender is convicted and sentenced to 10 months 6 days imprisonment that will commence on 31 October 2033 and expire on 5 September 2034. (22) On the charge of using a carriage service to menace, harass, or cause offence contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (Cth Criminal Code) (CC2023/5881) the offender is convicted and sentenced to 9 months imprisonment that will commence on 1 August 2023 and expire on 30 April 2024 (23) On the charge of aggravated non-consensual distribution of intimate images contrary to s 72C of the Crimes Act (CC2023/5885) the offender is convicted and sentenced to 1 year 3 months 8 days imprisonment that will commence on 6 June 2034 and expire on 13 September 2035. (24) On the charge of escaping arrest, contrary to s 160 of the Crimes Act (CC2023/8575) the offender is convicted and sentenced to 1 year 1 month 15 days imprisonment that will commence on 14 June 2035 and expire on 28 July 2036. (25) On the charge of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2023/4959) the offender is convicted and sentenced to 6 months imprisonment that will commence on 30 April 2036 and expire on 29 October 2036. (26) In relation the ACT offences, I impose a non-parole period of 7 years 6 months commencing on 1 May 2024 to end on 31 October 2031. (27) I decline to order a recognizance release order for the Commonwealth offence (CC2023/5881) under s 19AC(4)(b) under the Crimes Act 1914 (Cth).

I certify that the preceding three-hundred and forty-nine [349] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson .................. Associate: Date: 31 July 2024 ANNEXURE OF COMPARABLE CASES DPP v Deighan (No 2) [2023] ACTSC 295 (Deighan) 1. In Deighan, the offender was sentenced to 13 years 5 months imprisonment, with a non-parole period of 6 years 4 months imprisonment: Deighan at [103](2). 2. This case involved nine charges of sexual intercourse without consent, two charges of sexual assault in the third degree, one charge of sexual assault in the second degree, four charges of act endangering health (choke), act of indecency in the third degree, two charges of act of indecency, six charges of common assault and stalking: Deighan at [2]. The offender was 19 years old at the time of the offences and relative youthfulness was a matter of mitigation: Deighan at [10], [87]. 3. The offender was found guilty at a jury trial: Deighan at [1]. 4. In relation to the subjective features of the offence, the offender in Deighan had no criminal history. The offender had a diagnosis of schizophrenia but this was found to have no causal connection to offending and no reduction in moral culpability: Deighan at [68]-[69]. The offender was also diagnosed with cannabis use disorder. The offender had a positive response to treatment for mental health relevant to prospects of rehabilitation: Deighan at [71], [92]. The offender had no remorse or acceptance of responsibility. 5. As stated above, the offender received a total sentence of 13 years and 5 months imprisonment. The offender received a non-parole period of 6 years 4 months imprisonment. For the charges of sexual assault in the third degree, the offender received a total of 2 years and 2 years 6 months respectively: Deighan at [103](6), [103](16). For the charges of sexual intercourse without consent, the offender received sentences of imprisonment for 3 years, 3 years 6 months, 4 years, 3 years 6 months, 4 years 6 months, 2 years 6 months, 4 years 6 months and 4 years respectively: Deighan at [103](8), [103](10), [103](17), [103](20), [103](23)-(27). For the charge of sexual assault in the second degree, the offender received 5 years imprisonment: Deighan at [103](21).

R v Okwechime [2022] ACTSC 233 (Okwechime) 6. In Okwechime, the offender was sentenced to 5 years 3 months’ imprisonment, with a non-parole period of 3 years imprisonment: Okwechime at [142](v)-(vi). The offender was found guilty at trial. 7. This case concerned one act of endangering health (choke) (count 5) and two charges of sexual intercourse without consent (counts 2 and 4): Okwechime at [2]. The offender was found guilty by a jury of these counts: Okwechime at [2]. 8. The offender was 33 years old at the time of the offending: Okwechime at [77]. 9. The victim met the offender at a nightclub, Kokomo’s, in the early hours of the morning. The victim had consumed alcohol, MDMA and cocaine: Okwechime at [26]-[27]. The offender, his friends, and the victim went to another nightclub, Fiction, and stayed there for approximately 2 hours: Okwechime at [27], [36]. During that time the offender and the victim were often seen close together talking and dancing: Okwechime at [33]. 10. The victim left Fiction with the offender, the offender’s friend, and the friend’s girlfriend. They travelled to the offender’s friend’s residence: Okwechime at [38]. The victim sat on a couch with the offender where he proceeded to commit various non-consensual sexual acts upon the victim: Okwechime at [48], [50]. The offender grabbed the victim’s neck and choked her at one point in response to her telling him to stop: Okwechime at [50]- [51]. The victim stated that she could not breathe, her vision became blurry, and she felt nauseous and sick. The offender ordered an Uber for the victim to return home. 11. Norrish AJ found the offending was opportunistic and neither planned nor premeditated: Okwechime at [97]. Norrish AJ further found that the bodily harm committed was not significant, and much of it was incidental to the commission of the offences for which the offender was found guilty: Okwechime at [109]. 12. The offender had prior convictions for traffic, drug, firearms and weapons offences, including imprisonment. He was subject to conditional liberty (on parole in New South Wales) at the time of the offences in that case: Okwechime at [80]-[81]. 13. The offender had a supportive family. The offender had an 8-year-old child from a previous relationship, and was previously employed as a carpenter prior to being taken into custody: Okwechime at [82]-[83]. The offender had a history of drug use. 14. Community Corrections Service assessed the offender to be at “medium to low risk” of general re-offending with some protective factors in place. He was regarded, however, as being at “well above average risk” of sexual re-offending by reference to the actuarial incident Static-99R: Okwechime at [85]). 15. As earlier stated, the offender was sentenced to a total of 5 years 3 months imprisonment, with a non-parole period of 3 years. The offender received 1 year 3 months’ imprisonment for the act endangering health (choke) offence, and a total of 6 years 6 months’ imprisonment for the 2 offences of sexual intercourse without consent: Okwechime at [142](ii)-(iv). DPP v Ayoub (No 5) [2023] ACTSC 140 (Ayoub (No 5)) 16. In Ayoub (No 5), the offender was sentenced to a 30-month aggregate sentence, with the sentence to be suspended after 18 months and 22 days in custody: Ayoub (No 5) at [26], [28](4). The offender was convicted after a jury trial: Ayoub (No 5) at [1]. 17. The case concerned a charge of sexual assault in the second degree (choke), a charge of sexual intercourse without consent and a charge of common assault: Ayoub (No 5) at [1](a)-(c). 18. The offender attended a brothel with an acquaintance under the influence of methamphetamine and paid for a “standard service”, being a massage, protected oral sex performed on him, and protected penile-vaginal sexual intercourse : Ayoub (No 5) at [2]-[3]. The offender stated that he paid for choking as an “extra.” The jury’s verdict rejected that contention: Ayoub (No 5) at [3]. 19. The offender declined to participate in the usual health check stating that he had been a regular before and then proceeded to show his penis to the receptionist and in front of prospective clients: Ayoub (No 5) at [5]. Upon returning to the room the offender put his hand around the neck of the complainant and choked the complainant without her consent, with the intention of engaging in sexual intercourse notwithstanding the health check: Ayoub (No 5) at [6]. The offender penetrated the complainants vagina with his fingers without consent: Ayoub (No 5) at [6]. The offender also hold open the victim’s mouth and spitting into it, in a “pharmacologically misguided belief” that this would render the victim ingesting methamphetamine to an extent that the she may be willing to participate in sexual acts that he had wished her to : Ayoub (No 5) at [6]. At some point a condom was placed on the offender’s penis and the complainant sucked his penis: Ayoub (No 5) at [6]. The victim left the room when the offender refused to wear a condom at the point where penile-vaginal intercourse may otherwise have occurred: Ayoub (No 5) at [6]. 20. In assessing the objective seriousness, Mossop J found that: 8. So far as the assault was concerned, it involved choking, which is a serious form of assault. The victim could still breathe. It was sufficient to result in bruising to her neck. The complainant was gasping for air and was struggling. The complainant was obviously vulnerable, being a sex worker exposed to the intimate conduct of strangers. No weapon was used and there was no premeditation. It is at the low end of the mid‑range of objective seriousness for this offence. 9. The sexual intercourse without consent involved penetration of the victim’s vagina on multiple occasions. He put his hand in quite aggressively and repetitively. She struggled and tried to get away from him, but he was quite strong and she could barely move. The victim was obviously in a vulnerable position. It is within the broad scope of mid-range of objective seriousness for this offence. (emphasis added) 21. Mossop J noted at [19] that the offender had a criminal history which was “not particularly serious” but had “occurred on a regular basis over a long period. His Honour further noted at [19] that the offender’s criminal history did not include any prior sexual offending. 22. Mossop J further noted at [15]-[16], that the offender had a history of illicit drug use from the age of 13 and an underlying mental health condition complicated by use of methamphetamine. 23. As stated above, the offender received a 30-month aggregate sentence, to be suspended after 18 months 22 days. For the charge of sexual intercourse without consent, the offender received a 14 months’ imprisonment, and 20 months’ imprisonment for the actual bodily harm with intent to engage in sexual intercourse charge: Ayoub (No 5) at [28](1)-(2). The offender was also sentenced to 2 months’ imprisonment for the common assault: Ayoub (No 5) at [28](3).

DPP v Hudson [2023] ACTSC 333 (Hudson) 24. In Hudson, the offender was sentenced to 4 years 9 months, with a non-parole period of 2 years 6 months: Hudson at [70](13). The offender was 32 years old: Hudson at [28]. 25. The offender was found guilty by a jury of the following charges (Hudson at [70](2)-(11)): (a) Three charges of act of indecency without consent; (b) One charge of sexual assault in the third degree; (c) Three charges of sexual intercourse without consent; (d) One charge of attempted sexual intercourse without consent; (e) One charge of choke/suffocate/strangle; and (f) One charge of property damage. 26. The offender was also found guilty of a transfer charge of common assault: Hudson at [70](12). 27. The offender attended a brothel and paid for a so called “standard service”: Hudson at [2], [8]. He initially engaged in consensual sexual activity with the victim: Hudson at [8]. 28. The offender then sat on her chest, straddling her with his knees either side of the victim, pinning her arms down with his legs, and said, “I want to face fuck you”: Hudson at [13]. He then inserted his penis into her mouth while the victim was unable to move: Hudson at [15]-[16]. When the victim was able to sit up, he grabbed her face and spat in her face and slapped her using an open palm: Hudson at [17]. He then held her down by her neck, causing the victim difficulty breathing and she temporarily lost her sense of hearing: Hudson at [18]-[19]. The offender tried to penetrate the victim’s vagina with his penis without a condom, but was unable to do so as he was not sufficiently erect: Hudson at [21]. He then digitally penetrated her using a number of his finders: Hudson at [23]. 29. Berman AJ found that the “degrading series of assaults” took place over 15 minutes: Hudson at [48]. The offender wearing a condom during oral intercourse: Hudson at [49]. The digital penetration also caused injury to the victim: Hudson at [50]. 30. Berman AJ took into account that the offender was exposed to domestic violence and alcohol abuse as a child: Hudson at [28]-[29], [44]. Further, the offender had a diagnosis of PTSD and a diagnosis of Major Depressive Disorder, although his Honour held it was “difficult to draw a conclusion that the offender’s moral culpability is diminished by the mental conditions from which he suffers”: Hudson at [42], [56]. 31. As stated above, the offender received a total sentence of 4 years 9 months and a non-parole period of 2 years 6 months. For each sexual intercourse without consent count, the offender received a sentence of 18 months’ imprisonment: Hudson at [70](6), [70](8), [70](10). For the sexual assault in the third-degree count, the offender received a sentence of 18 months imprisonment: Hudson at [70](5). For the attempted sexual intercourse without consent count, the offender received a sentence of 15 months imprisonment: Hudson at [70](9). The offender received a sentence of 9 months’ imprisonment for two of the counts of act of indecency, and 12 months’ for one count: Hudson at [70](2)-(4). Berman AJ also sentenced the offender to 18 months’ imprisonment for the choking charge, and 2 months’ imprisonment for the damage property and the transferred common assault charge: Hudson at [70](7), [70](11)-(12). R v NX (No 2) [2019] ACTSC 131 (NX (No 2)) 32. In NX (No 2), the offender was sentenced to 4 years 8 months, with a non-parole period of 3 years: NX (No 2) at [37]. The offender was 35 years of age at the time of sentencing. 33. The offender pleaded guilty to the following charges: (a) Sexual assault in the third degree. (b) Sexual intercourse without consent. (c) Three counts of assault occasioning actual bodily harm (d) Capturing visual data in circumstances where the capture is an invasion of privacy and indecent (e) Two counts of common assault (f) Three counts of causing damage to property 34. The offender and victim had been in a relationship since 2017. The offender committed offences of property damage and assault during a trip with the victim, his girlfriend: NX (No 2) at [5]. The victim left the house on foot with the couple’s son after being told to “get the fuck out” of the house: NX (No 2) at [5]. Later in the day after the victim returned, the offender picked up a Stanley knife near her face, directing the victim to “suck his dick”: NX (No 2) at [8]. The offender filmed the act with his phone: NX (No 2) at [9]. 35. Further, on 13 April 2018, the offender punched the victim in the back of the had multiple times after she refused to cuddle: NX (No 2) at [10]. The offender then pushed the victim into the mattress and held her head down on the pillow and struck her with a torch a number of times on the arm, back and shoulder. This caused red marks and abrasions (assault occasioning actual bodily harm): NX (No 2) at [10]. The offender also bit the victim on the thigh, causing bruising: NX (No 2) at [10]. 36. Mossop J assessed the holding of the knife is best characterized as an implied threat to inflict actual or grievous bodily harm and is in the mid-range for objective seriousness: NX (No 2) at [14](d). The act of forced oral sex was assessed as mid-range in terms of objective seriousness, as is the capture of intimate data: NX (No 2) at [14](e)-(f). The acts of assault occasioning actual bodily harm were assessed in the low-range: NX (No 2) at [14](g), (h), (k). 37. Given the different timing of the guilty pleas, Mossop J variously discounted the offender’s sentence ranging from 5%, 10%, and 25%: NX (No 2) at [29]. 38. Mossop J further noted the offender had a substantial criminal history, evidence that he is suffering from “Cluster B personality disorders”, a history of illicit substance use, and had been a witness to domestic violence as a child: NX (No 2) at [23]-[24], [27]. 39. As stated above, the offender was sentenced to a total sentence of 4 years 8 months imprisonment, with a non-parole period of 3 years. For the offence of sexual assault in the third degree, the offender received a sentence of 23 months’ imprisonment (reduced from 24 months): NX (No 2) at [36](b). For the offence of sexual intercourse without consent, the offender received a sentence of 37 months (reduced from 39 months): NX (No 2) at [36](a) . For the offence of capturing visual / intimate data, the offender received a sentence of 3 months 24 days’ imprisonment (reduced from 4 months): NX (No 2) at [36](c). DPP v Moala (No 3) [2023] ACTSC 306 (Moala (No 3)) 40. In Moala (No 3), the offender was sentenced by McCallum CJ to 2 years imprisonment, with a non-parole period of 12 months: Moala (No 3) at [68](1)-(2). The offender was found guilty at trial. The offender was 27 at the time of the offending. 41. The offender was found guilty of choking: Moala (No 3) at [1]. 42. The prosecution case was that the choking occurred after the victim went back to an co-accused’s motel after meeting at a nightclub in the city: Moala (No 3) at [3]. Once back at the motel the victim had consensual sex with the co-occused and then fell asleep: Moala (No 3) at [3]. When the victim woke up, she found the offender on top of her with his hand pushing down on her neck, taking off her clothes while she resisted and struck him: Moala (No 3) at [4]-[6]. McCallum CJ noted that by virtue of the acquittals concerning sexual intercourse without consent the jury must have had reasonable doubt as to whether sexual intercourse occurred during this event: Moala (No 3) at [9]. 43. There was an important volte-face at the sentencing hearing as the offender admitted to having sex with the victim at the time he was holding her down: Moala at [9], [13], [15]. McCallum CJ was bound to disregard this admission and to sentence the offender on the basis of “the fiction” that an intention to engage in sexual intercourse formed no part of the choking offending, and to not sentence the offender on the basis that he choked the victim with intent to commit a sexual offence: Moala (No 3) [16]-[17]. 44. As stated above, the offender received 2 years’ imprisonment, with a non-parole period of 12 months: Moala (No 3) at [68].

R v NO (No 2) [2018] ACTSC 37 (NO (No 2)) 45. In NO (No 2), the offender was sentenced to a total sentence of 5 years 3 months’ imprisonment, with a non-parole period of 3 years. This sentence included a backdated suspended term of 21 months’ imprisonment for recklessly inflicting grievously bodily harm, as the fresh offending meant that the offender breached the relevant good behaviour order: NO (No 2) at [19], [76] . The offender was found guilty after a jury trial: NO (No 2) at [19]. The offender was 31 at the time of sentencing. 46. The charges in this case were (NO (No 2) at [1]-[2]) (a) Sexual assault in the second degree. (b) Sexual Intercourse without consent. 1․ Act of Indecency without consent. 2․ Two transfer charges: 1. Stalking. 2. Common assault. 47. The facts of the offending, excluding the stalking charge, are as follows. The offender and the victim met in 2010 and started an intimate relationship, although Penfold J observed that theirs “did not initially have any of the common incidents of a romantic relationship” beyond sexual activity: NO (No 2) at [5]. 48. In February 2011, the offender invited the victim to his house. After opening the door, the offender began kissing her while holding her against the wall with his around her throat: NO (No 2) at [7]. The victim says that the next thing she remembers, she was on his bed, where the victim told him she wanted to leave and that she did not want to have sex: NO (No 2) at [7]. The offender responded, while penetrating her, by saying "You're not going anywhere". The offender continued to kiss the victim, sucked on her breasts, and held her down by her arms: NO (No 2) at [8]. The offender also continued to ignore the victim’s refusal and had penile-vaginal intercourse with the victim: NO (No 2) at [8]. 49. This incident resulted in bruising to the victim’s neck, breast, and thighs: NO (No 2) at [9]. 50. The victim resumed the relationship after a number of weeks since the incident, and eventually moved in with the offender and had two children: NO (No 2) at [10]-[12]. The relationship was tumultuous, with the offender being controlling and the victim being fearful of the offender: NO (No 2) at [11](a)-(c). 51. Penfold J found the offending “approached mid-range seriousness.”: NO (No 2) at [40]. 52. An appeal against conviction was dismissed: NO v The Queen [2019] ACTCA 23. 53. As stated above, the offender received an aggregate sentence of 5 years 3 months’ imprisonment with a non-parole period of 3 years. For the offence of sexual assault in the second degree, the offender was sentenced to 4 years’ imprisonment: NO (No 2) at [78](b). For the offence of sexual intercourse without consent, the offender was sentenced to 3 years 9 months’ imprisonment: NO (No 2) at [78](c). For the offence of act of indecency without consent the offender was sentenced to two years’ imprisonment. All of the sentences, including the one for stalking and the reimposed suspended sentence, had at least some degree of concurrency with each other: NO (No 2) at [78]. R v Stanley [2015] ACTSC 322 (Stanley) 54. In Stanley, the offender received a total sentence of 6 years imprisonment, with a non-parole period of 3 years 3 months: Stanley at [84](11)-(12). The offender was 39 at the time of sentencing. 55. The offender pleaded guilty to the following charges on 24 June 2015 (Stanley at [15]): (a) Two charges of Assault Occasioning Bodily Harm (b) Damaging Property (c) Two charges of Sexual Intercourse Without Consent 56. The facts of the relevant offending are as follows. The offender and victim were living together. The offender was intoxicated and became angry with the victim after the victim sought to take the offender’s keys to the apartment: Stanley at [12]-[13]. The offender assaulted the victim by stomping her face and chest and punching her face a number of times. The offender then proceeded to put his hand around the victim’s neck and starting to strangle her while shouting that he was going to kill her. This incident constituted the first assault occasioning bodily harm offending count: Stanley at [13]-[14]. 57. Later, the offender grabbed the back of the victim’s neck and smashed a ceramic mug over her head: Stanley at [16]. The offender then continued to hit her with the mug two or three times before it broke, nearly rendering her unconscious: Stanley at [16]. The offender then went back to the kitchen and got another mug and again hit the victim on the head. This mug also broke, causing a large laceration to the victim’s head. The victim felt pain and blood run down her face. The about 15-minutes incident constituted the second offence of assault occasioning actual bodily harm: Stanley at [16]. 58. After this, the victim went to have a shower. The offender stood at the doorway of the bathroom while she showered, and then told the victim to lie down in the bedroom: Stanley at [18]. The offender then put his penis in the victim’s mouth , followed by the offender forcing the victim’s leg apart and performing penile-vaginal intercourse until he ejaculated (two counts of sexual intercourse without consent): Stanley at [20]. 59. In considering the objective seriousness of the offence, Refshauge ACJ noted that the whole of the offences constituted a “brutal and sustained attack”: Stanley at [70]. 60. In considering the subjective circumstances, Refshauge ACJ noted the offender’s acknowledgment of the link between alcohol abuse and the offending behaviour: Stanley at [49]. Further, Refshauge ACJ noted that the offender had “relatively short, but rather worrying” criminal history in New Zealand, with a previous family violence assault conviction: Stanley at [42], [52]. The offender has also availed himself of the education, support, and rehabilitative options offered to him in custody: Stanley at [56], [60]. 61. As stated above, the offender received a total sentence of 6 years imprisonment, with a non-parole period of 3 years, 3 months. For the offences of sexual intercourse without consent, the offender was sentence to 3 years and 3 years, 6 month’ imprisonment respectively, partly concurrent with each other: Stanley at [84](8), [84](10). If the offender did not plead guilty, Refshauge ACJ would have sentenced the offender to 4 years and 4 years and 8 months’ respectively: Stanley at [84](8), [84](10). For the assault occasioning bodily harm offence, the offender was sentenced to 1 year and 8 months’ imprisonment and one year imprisonment respectively, discount from 2 years and 6 months’ and 1 year 6 months for the plea of guilty, partly concurrently with each other: Stanley at [84](2), (4). R v Finau (No 2) [2020] ACTSC 193 (Finau (No 2)) 62. In Finau (No 2)), the offender was sentenced to 2 years 6 months’ imprisonment, to be suspended after 9 months on entering a good behaviour order: Finau (No 2) at [50]-[51]. The offender was 26 at the time of sentencing. 63. The offender was convicted of one count of sexual intercourse without consent after a trial by judge alone: R v Finau [2020] ACTSC 155 at [133]-[134] (Finau). 64. The facts of the relevant offending were briefly stated by Murrell CJ in Finau (No 2). In November 2019, the offender and the complainant met in Civic: Finau (No 2) at [23]. They were work colleagues but only had a passing work acquaintance. Together, they attended several nightclub venues in Civic. They afterwards shared a taxi from Civic to the victim’s residence. The victim had proposed that the driver would then drive the offender to his residence, but the offender paid the driver and said he would order another, indicating he was sick and needing to use the toilet, the offender was let in the unit: Finau (No 2) at [6]. 65. The offending took place in the residence. The offender attempted to kiss the victim despite her wishes: Finau (No 2) at [7]. The offender grabbed her, pushed her over and pinned her down to a sofa. The offender kicked her pants down to her feet and attempted to prise her legs open despite his resistance: Finau (No 2) at [8]. The victim said “no” and “stop” and physically resisted. The offender became angry and said “I want this, I’m here.”: Finau (No 2) at [9]. The offender covered the victim’s mouth with his hand when she objected, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The complainant hit him in the face, and the offender struck the victim’s cheekbone: Finau (No 2) at [9]. The offender engaged in penile-vaginal penetration for “less than a minute”. The victim was in pain and the offender did not use a condom: Finau (No 2) at [9]. The offending was interrupted when the victim's cat jumped onto the sofa bed: Finau (No 2) at [10]. The victim estimated that the event took less than 10 minutes: Finau (No 2) at [11]. 66. Murrell CJ found the following factors rendered the offence objectively serious (at [16]): a. It was committed in the [victim]'s own home where she was entitled to feel safe; b. It was associated with physical violence; the offender pushed the [victim] onto the sofa and pinned her down, covered her mouth and struck her face once, causing visible injury; c. The offender actually knew that the [victim] did not consent. She told him that she did not want to engage in sexual intercourse, and then once it started, she repeatedly told him to stop; d. The intercourse was penile-vaginal intercourse, although the type of intercourse is not definitive of objective seriousness; and e. The offender did not use a condom. 67. Murrell CJ noted the offender had no criminal history and a person “of otherwise impeccable character”: Finau (No 2) at [21], [30]. The offender also assessed the offender as being of low-risk of general reoffending and an average risk of sexual reoffending: Finau (No 2) at [32]. Murrell CJ also took into account the context of COVID- 19, and noted that this would make imprisonment more onerous than usual: Finau (No 2) at [33].

R v Smith [2021] ACTSC 114 (Smith) 68. In this case, the offender was sentenced to an aggregate sentence of 3 years, 4 months, 12 days, with a non-parole period of 28 months: Smith at [51]. 69. The offender pleaded guilty to sexual intercourse without consent and to contravening a family violence order. The pleas were accepted on the grounds that the facts relating to the charge of choking, suffocating and strangling and three charges of common assault would be taken into account in the latter charge: Smith at [1]-[2]. 70. The relationship was one involving domestic violence and was marked by controlling and abusive behaviour by the offender towards the victim: Smith at [4]. In February 2019, the offender assaulted the victim. This led to criminal charges and an FVO. The offender was sentenced to 8 months’ for assault in February 2019: Smith at [4]. 71. The relationship resumed. 72. An argument broke out and the offender slapped the victim: Smith at [9]. A short time later, the offender grabbed the victim by the collar and thumped the victim up and down on the bed: Smith at [10]. Each time the victim was pressed down force was applied to her throat with a clenched fist, affecting her ability to breather: Smith at [10]. This went on for approximately 10 minutes as the offender questioned the victim: Smith at [10]. 73. The offender then pulled victim’s pants and underpants down and inserted two fingers inside her vagina without consent. 74. Mossop J found the sexual intercourse offending (digital penetration) and the breach of FVO offending to be both within the upper-end of mid-range of objective seriousness: Smith at [25]-[27]. Mossop J noted that that the sexual intercourse offending formed part of a pattern of demeaning and controlling behaviour on the part of the offender. 75. As the offender’s subjective circumstances, Mossop J noted among other things that the offender had an extensive criminal history both in NSW and ACT: Smith at [40]. The offender was 40 years old at the time of sentencing (38 during the offending). Further, the offender was assessed as presenting a medium to high risk of general reoffending and an average risk of sexual offending: Smith at [38]. The pre-sentence report detailed a history of drug and alcohol abuse: Smith at [33], Further, the offender also claimed remorse for his offending: Smith at [36]-[37]. 76. On account to the utilitarian value of his plea, Mossop J discounted the offender’s sentence by 10%: Smith at [42]. The offender received an aggregate sentence of 3 years, 4 months, 12 days imprisonment with a non-parole period of 2 years, 4 months. For the specific charge of sexual intercourse without consent, the offender received a sentence of 32 months and 12 days’ imprisonment: Smith at [52].

R v UM (No 2) [2021] ACTSC 115 (UM (No 2)) 77. In UM (No 2), the offender was sentenced to an aggregate sentence of 4 years, 1 month, 26 days’ imprisonment. The non-parole period was set at 2 years, 9 months: UM (No 2) at [37]. 78. The offender pleaded guilty to one count of causing grievous bodily harm and assault occasioning bodily harm. Later, the offender also pleaded guilty to a “rolled-up charge” of sexual intercourse without consent: UM (No 2) at [3]. 79. Given the lateness of the plea, Elkaim J only applied a discount of approximately 5%: UM (No 2) at [4]. For the charge of sexual intercourse without consent, the offender received a sentence of 2 years, 10 months (reduced from 3 years): UM (No 2) at [37](c). For the charge of assault occasioning actual bodily harm, the offender received a sentence of 9 months, starting on the same date at the sentence for the sexual intercourse without consent: UM (No 2) at [37](c)

Maher (No 2) [2022] ACTSC 63 80. This case was referred to in particular concerning non-consensual distribution of intimate images and other charges. 81. For the non-consensual distribution, the offender received a sentence of 15 months imprisonment’ (reduced by approximately 15% from 18 months): Maher (No 2) at [165], [182]. For the count of use carriage service to harass/menace, the offender received 4 months 15 days (reduced by approximately 25% from 6 months): Maher (No 2) at [166], [182].

R v MacDonald [2017] ACTSC 59 (MacDonald) – escape custody 82. This case was referred to in relation to the charge of escape custody. 83. Burns J noted that the plea of guilty was made at the earliest opportunity, and Burns J applied a 25% discount on account of the plea: MacDonald at [23]. Burns J sentenced the offender to 15 months’ imprisonment for this offending: MacDonald at [33].