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Circumstances of the first offence

6. The victim in count one, whose personal pronouns are “they/them”, met the offender in June 2016 at the Australian National University, where both were undertaking postgraduate studies. They had a brief casual sexual relationship for a few weeks before agreeing not to have sex anymore but to remain friends. During the friendship, the victim had discussed with the offender the fact that the victim suffered from “quite significant anxiety”. They had recently been prescribed medication for anxiety and depression and had discussed that with the offender, who told them that he also had been medicated in the past.

7. The prosecution submits this evidence establishes that the offender knew the victim was vulnerable. I agree. Before the trial that resulted in the guilty verdicts, there was an earlier trial in which the jury was unable to agree. The offender gave evidence in that trial and that evidence was played by the prosecution in the recent trial. In his evidence, the offender stated that he knew the victim had recently lost a lot of weight due to their mental health. He also said he had told the victim the two of them should stop having sex because of his mental health and the victim’s mental health. I am satisfied beyond reasonable doubt that the offender knew the victim was vulnerable to anxiety and depression and was struggling with their mental health at the time of the offence.

8. On 19 July 2016, the victim went to work but left early after experiencing an anxiety attack. They contacted the offender and arranged to meet him at the ANU campus. They went to the offender’s student accommodation, which was a small room. The offender accepted in cross-examination that the victim had come to his place that day because the victim was anxious. In the offender’s room, the two lay on the bed and chatted. As they were talking, the offender kept putting his face closer and closer to the victim’s until his lips were touching theirs. At the same time, he was talking about going to the library to study. The victim’s anxiety centred primarily around their studies at that time. They struggled to respond to the offender’s questions and became panicked. They kissed the offender because his face was uncomfortably close and they wanted to stop him asking questions.

9. The offender then “really quickly” removed the victim’s clothes. There was a factual dispute at the trial as to whether the victim cooperated in that process. I accept, as contended on behalf of the offender, that the victim at least did not protest to having their clothes removed. The victim said they were “sort of” a bit “frozen” at that point. The offender went to perform oral sex on the victim, but the victim pulled him back up to stop him from doing that because they did not want that. The offender then gestured for the victim to perform oral sex on him, which they did briefly. The offender got up to change the music, which had stopped. At that point, the victim said, “I don’t want to do this”, and the offender asked “what?”. The victim said “sex” and added “I don’t think it’s a good idea”. The offender said “okay”. The victim said “thank you”. They remembered feeling foolish for saying that because they felt it was not something you should have to thank someone for.

10. The two continued talking while still lying on the bed, both still undressed. The offender said that he did not want them to sleep together anymore and that it would be a mistake. The victim joked that they had never made a mistake in their life. The offender then said “there’s a first time for everything” before moving on top of the victim and inserting his penis into their vagina. The victim froze. The offender proceeded to have sexual intercourse with the victim without their consent until he ejaculated on them. He did not wear a condom.

11. After he finished, the offender got up and used a towel or a T-shirt to clean himself before throwing it at the victim to do the same. The victim called him a “shit” and an “asshole”. The offender left the room and returned with a bowl of porridge. They continued to make small talk until the victim left his room.

12. The next day, the victim sent a text message to the offender saying, “You did the wrong [thing] yesterday”. The offender responded with a text saying, “Yeah I know”.

Objective seriousness of the first offence

13. The prosecutor submitted that the objective seriousness of the first offence is mid-range. He submitted that the seriousness of the offence is increased by five aspects of the offending. The first is that the victim was vulnerable and the offender knew they were vulnerable. As already indicated, I accept that to be the case and am satisfied that does aggravate the offence in some degree. Of course, it is necessary also to have regard to the offender’s mental health at that time. I will return to that issue in the discussion of his subjective circumstances.

14. Secondly, the prosecutor relied on the contention that, although the offence was not planned, the offender “engineered” the sexual activity by putting his face so close to the victim that their lips were touching and by the other conduct on the bed. I do not accept that is a factor that increases the objective seriousness of the offence. Conduct that brings about sexual activity is an inherent feature of the offence of sexual intercourse without consent.

15. Thirdly, the prosecutor submitted that the offender knew the victim was not consenting. As already noted, the offender contends that I would not be satisfied of that fact beyond reasonable doubt.

16. I have already summarised the victim’s evidence on the issue of consent. After performing oral sex on the offender briefly at his request, the victim said, “I don’t want to do this”. The offender asked “what?”, to which the victim replied “sex”, adding, “I don’t think it’s a good idea”. The offender said “okay” and the victim said “thank you”. The offender concedes in light of the guilty verdict on count one that the jury must have “generally” accepted the victim’s evidence. I also accepted their evidence. I found them to be highly intelligent, careful, honest and precise. I am satisfied beyond reasonable doubt that they said the words I have just repeated and (as the jury must have found) that they did not in fact consent to the sexual activity that followed.

17. The critical question is whether it is reasonably possible that the offender did not know the victim had not consented. It is relevant in this context to consider what the evidence reveals about the offender. I have read his lengthy exchanges on social media with both victims and I heard his evidence in the first trial. My assessment of him is that he is a man of some intelligence and that he is decidedly intellectual and dialectical. He pays careful attention to words and expresses himself with precision, expecting the same of those with whom he is engaging. For example, in exchanges with the second victim, the offender took her to task for being incapable of true apology and accused her of “deflection” when she did not answer his questions directly. This exactness was the mark of many of his exchanges.

18. The offender’s analytical capacity revealed by the evidence before me is such that I find it impossible to accept that, when the victim on count one told him they did not want to have sex, he failed to understand those words to mean they did not want to have sex. He could not, by any intellectually honest path of reasoning, have believed he could fairly gain their free and voluntary agreement to have sex a few minutes later by simply ignoring that clear statement and proceeding to sexual activity.

19. The offender relied on a series of features of the offence to support the submission that I should entertain a reasonable doubt on this issue: the fact that the two of them lay on the bed together; that the victim engaged in consensual kissing; the removal of their clothes without protest; further kissing; the consensual fellatio; the fact that they continued to lie on the bed together after the victim had said “I don’t think it’s a good idea”; the exchange that culminated in the offender saying “there’s a first time for everything” and the fact that they did not protest when he proceeded to engage in penile/vaginal sexual intercourse with them. On that painting of the scene, which omitted reference to the victim’s rejection of the attempted cunnilingus followed by their saying “I don’t want to do this”, the offender submitted I would have a reasonable doubt as to his knowledge of the victim’s lack of consent.

20. The victim pre-empted that submission in a Facebook message they sent to the offender five months after the offence. On 13 August 2016, the offender wrote to the victim, “are we at the point we can speak again without you calling me a racist because I’m in culture shock?” The victim did not see that message until 19 December 2016 because they had blocked the offender. I will quote part of their response because it neatly confronts the common obfuscation of the issue of consent reflected in the offender’s submission. The victim wrote: That I haven’t spoken to you has nothing to do with your culture shock. It has to do with the fact you had sex with me after I told you that I didn’t want to, and that I thought it was a bad idea. I came to you that day seeking comfort because I was very unwell. I trusted you and thought that, despite only having known each other for a short time, we cared about each other. I cared about you. We had agreed for that very reason not to have sex anymore. You might say that I kissed you first, which is true. The reason I kissed you was because I was becoming increasingly distressed by your questioning about why I was anxious. I wanted you to stop talking. That I kissed you did not mean I wanted to have sex with you. That I froze up, that I didn’t fight you does not mean I wanted to have sex with you. That I entered your room. That I laid on your bed. That I cuddled with you. That I kissed you. That I was naked in your presence at any point in time. None of this meant that I wanted to have sex with you. You were putting your face on my face, your lips to mine, the entire time I was there. You knew what you wanted and you took it, even after I said I didn’t want to. You raped me. That’s why I haven’t been talking to you.

21. The message concluded with a cautionary note that should have served to bring home to the offender the seriousness of disregarding a person’s lack of consent in future sexual encounters: I’m writing this now to say, please don’t do this to another person. I would never wish for anyone to feel the way I’ve felt in the past five months. Please think twice about having sex with someone if they are not wholly into the idea. If there is any ambiguity, just don’t do it. Please don’t assume that anything but another person’s enthusiastic consent entitles you to any degree of sexual contact with them. If you do do this to or something similar to someone else, both the police and the university are aware of what you did to me, and that person, should they choose to report you, will be supported by that.

22. I am satisfied beyond reasonable doubt that the victim in count one said they did not want to have sex and that the offender knew they did not consent when he proceeded to have sexual intercourse with them. This was not a situation in which the issue of consent was blurred, as it sometimes is. It was a situation in which the victim managed to articulate in plain words, before the sexual intercourse began, that they did not want to have sex. The problem was not that their position was not clear. It was that they were not taken seriously. As the victim said in their victim impact statement, being faced with a distressed friend he professed to care about, the offender acted with complete self-interest and took what he wanted.

23. Even if my finding on that issue is wrong, and the offender did not understand the victim to mean exactly what they said, the case is in the category of cases where, in light of the victim’s clear words, the vulnerable state in which they came to visit the offender that day and their prior agreement that they should stop having sex because of their shared mental health concerns, his conduct in proceeding to sexual intercourse was of equal seriousness to an offence committed with knowledge of lack of consent: cf Kiss v R [2021] NSWCCA 158 at [75].

24. The fourth matter relied upon by the prosecution is the fact that the sexual intercourse was unprotected and so carried the risk of pregnancy or sexually transmitted disease. That is a matter that increases the objective seriousness of the offence. The prosecutor further noted that the offender ejaculated on the victim and attended to cleaning himself up before tossing a towel or T-shirt to the victim. As submitted by the prosecutor, that aspect of the offence entailed a degree of humiliation.

25. Finally, the prosecutor relied on the impact of the offence on the first victim as expressed in their victim impact statement. As will be apparent in my discussion of their victim impact statement, it is clear, and I am satisfied beyond reasonable doubt, that they suffered very serious psychological harm. The offender accepted that, but submitted that the harm suffered by the victim nonetheless did not exceed “what one would usually expect to see for any sort of offending of this nature”. That may be right. Certainly, it is the experience of the courts that many victims suffer in the way this victim did, experiencing lasting trauma that completely changes their lives. The real question is whether that is being reflected in current sentencing practice, a matter to which I will return.

26. Separately, the prosecutor submitted that the absence of violence does not reduce the objective seriousness of the offence because, if there had been violence, that would have been a different offence. It may be accepted that there are specific sexual offences for circumstances where injury has been inflicted or violence threatened: see ss 51, 52 and 53 of the Crimes Act. However, an offence charged under s 54 could involve a degree of violence and that was absent here. In my assessment, the absence of any violence or frank hostility is a factor that reduces the objective seriousness of the offence.

27. The offender submitted that the offence falls in the low range of offences of this kind. That submission was premised on my being satisfied that the offence was of lesser seriousness because I could not be satisfied beyond reasonable doubt that the offender knew the victim was not consenting. In light of my conclusion to the contrary and my assessment of other features of the offence, I do not accept that submission.

28. Having regard to the factors I have discussed, I would assess the offence against the first victim to be higher than low range and towards but not at the middle of the range.

Circumstances of the second offence

29. The second victim was also a postgraduate scholar attending the ANU. She and the offender had met in late February 2020 at an ANU social event where they exchanged numbers. Over the following weeks, they exchanged an extraordinary number of text messages and phone calls. According to the victim, the offender told her he had a wife but later said he intended to leave his wife. That was denied by the offender, who said the victim knew he was married but was polyamorous. A text exchange between the victim and a friend of hers tends to confirm that, in the early stages of the relationship, she understood that was what was proposed.

30. However, as time went on, the victim began to view the relationship more seriously. She gave evidence that she understood the offender had left his wife and that she and the offender were in a “boyfriend-girlfriend” relationship. The offender adamantly denied that they were in that kind of relationship. It is not necessary to resolve that contest. However, it may be observed that the frequency and tone of their exchanges was indicative of a close and intense romantic relationship rather than a casual sexual relationship. They were in constant contact with each other. They were sexually intimate. At her insistence, he met her parents. In one exchange, the offender remonstrated with the victim for not going away with him over the weekend as they had planned.

31. From the outset, the offender’s communications with the second victim were highly sexualised. He told her that he liked to tie people’s hands up and wanted his partners to say that they were into BDSM. In an early text, the victim told the offender that she would not have anal intercourse. The offender had suggested that, during sexual intercourse, she could say “please sir, fuck my ass harder LOL”, to which she replied, “[s]low down there cowboy U can ride on me that way but best to let ya know i don’t do anal sex…”

32. Notwithstanding that clearly stated boundary, the offender proceeded to embark on an unrelenting campaign of highly graphic and sexually violent messages, frequently asserting his intention to have anal sex with the victim. The offender told the victim what he wanted to “do to [her]”. He told her he wanted to “fuck [her] in [her] sleep” and to have “consensual non-consent” sex and that she would “be getting analised and skullfucked OVER AND OVER AND OVER”.

33. The victim maintained in her evidence at the trial that she would never and did never consent to anal sex. She was cross-examined at length about the text messages. It was put to her that her position on anal sex “softened” over time; that she ultimately said she was willing to have anal sex with the offender for his birthday and that she was in fact “excited and looking forward to having anal sex with him”. She denied those propositions.

34. The victim and the offender planned to go on a picnic on 17 April 2020 to celebrate his birthday. She drove them from her house in her car. They stopped on the way for the offender to buy cigarettes. There was a dispute as to what else he bought but it is apparent that he brought lubricant to the picnic. The prosecutor submitted that the offender misled the victim as to his reason for bringing lubricant. The victim gave evidence that the offender told her the reason he had underperformed in a previous sexual encounter between the two was because he didn’t have lubricant. The prosecutor submitted that the offender had in fact come prepared to have anal sex.

35. The offender and the victim drove to Cotter Dam and parked in a secluded area. At some point, jackets and towels were used to cover the windows for privacy. They undressed and kissed each other. The offender asked the victim if she trusted him before tying her hands with his belt. He gave evidence that he also used a bandana to gag her. She denied that. In his evidence at the trial, the offender stated that he tied the belt “loosely, so as not to damage the belt” (emphasis added). He put lubricant on his hands, flipped the victim over into the foetal position and inserted his fingers into her anus. The victim said, “wait, I’m really scared”, to which the offender replied, “all girls say that their first time”.

36. The act of digital penetration was relied upon to support count two, which is the count on which the offender was acquitted. The offender submitted that, in light of the acquittal on that count, the jury must not have accepted the victim’s evidence that she would never consent to anal sex. He submitted that the acquittal on count two indicates that the version put to the victim and rejected by her (that her position regarding anal sex had softened or shifted as her relationship with the offender developed), “must have been considered at least reasonably possible by the jury”.

37. The submission posits a false dichotomy. Even if the victim had been persuaded to consider having anal sex, it does not follow that she consented to the act of anal sex relied upon to support count three. Furthermore and in any event, as I will explain, there is an alternative logical explanation for the mixed verdicts.

38. Importantly, the jury must be taken to have been satisfied beyond reasonable doubt that the complainant did not consent to the anal intercourse that followed. The obvious explanation is that they accepted that she said “no” after the offender inserted his fingers in her anus and before he inserted his penis in her anus, thereby indicating that she did not consent to what followed.

39. The offender submitted that I would have a reasonable doubt as to whether the victim said “no”, having regard to what were submitted to be unsatisfactory aspects of her evidence. I accept that there were aspects of her evidence that were unsatisfactory. It is not uncommon for witnesses describing events they perceived as traumatic to contextualise their recollection according to their feelings at the time of giving evidence. There were points in the second victim’s evidence where I had the impression that her recollection of other events surrounding the assaults was skewed by hindsight.

40. However, I am comfortably satisfied that her description of the acts of anal penetration was truthful and reliable. I have given careful consideration to the whole of her evidence, which I heard twice during the course of the two trials over which I presided. I am satisfied as to the truthfulness and reliability of the victim’s evidence that she said “wait, I’m scared” (or “really scared”) and “no” before the act of penile penetration, and that she did not in fact consent to that act.

41. In reaching that conclusion, I have had regard to the evidence of the offender that, in addition to tying the victim’s hands with his belt, he gagged her with his bandanna. The victim denied that the incident involved a bandana. I accept her evidence on that issue. On both his and her version, she spoke during the incident. The offender said that, after he had inserted his fingers in her anus, he asked, “more?” and that she said “yes, daddy”. On her version, she said “wait, I’m really scared” and “no”. Tellingly, neither the offender nor the victim referred to the bandana as a feature of either exchange.

42. I am of course mindful of the fact that it is not enough to reject the offender’s version. I accept the victim’s evidence on those matters and, on that basis, am satisfied beyond reasonable doubt that the offender knew the victim did not consent to the act of penile anal intercourse. In written submissions, the offender submitted that, given the evidence at the trial, the only basis on which the jury could have acquitted him of count two was if they held a reasonable doubt as to whether the victim consented to that act. However, at the proceedings on sentence, the offender’s lawyer conceded (with respect, correctly) that the jury might alternatively have acquitted on count two because they considered it reasonably possible that the offender believed the victim consented to that act.

43. Based on my own assessment of the evidence in the trial, that is the more likely explanation for the mixed verdict. It is likely that, in respect of count two, the jury was not satisfied beyond reasonable doubt of the mental element for the offence because the victim had not said “no” up to that point. The jury may have reasoned that the text messages could reasonably have given the offender to believe that she was open to trying anal sex. She had apparently consented to have her hands tied up and had not verbalised any objection before he put his fingers in her anus. The jury may have reasoned that, the victim having not said anything up to that point, the offender might reasonably have believed she was consenting.

44. However, the victim’s position concerning the conduct relied upon for count three was unequivocal. She said “no” at least once, but the offender proceeded to penetrate her anus with his penis and have sexual intercourse with her. He continued to have sex with her until he ejaculated inside her. He did not use a condom. When he finished, he said, “you didn’t even cry, freak”. The victim asked the offender to untie her, but he proceeded to clean himself up first. He grabbed some wipes and wiped her bottom, stating that he didn’t want to make her pregnant. He then dressed himself and only then untied her.

45. I am satisfied beyond reasonable doubt that the offender knew at the point of penile penetration that the victim was not consenting. Even if I am wrong about that, the offence is no less serious. If the offender’s guilt is to be reconciled on the basis of recklessness rather than knowledge, it was a high degree of recklessness, reflecting either a strong appetite for risk or an arrogant disregard for the victim’s wishes. As already explained, he had engaged in a concerted campaign to normalise sexual violence in their exchanges. He had made repeated, explicit assertions that he was going to have anal intercourse with her. Not once, in the text messages at least, was this raised as a question for her deliberation. She was told what he was going to do to her.

Objective seriousness of the second offence

46. The prosecution submitted that the second offence was more serious than the first. He submitted that its objective seriousness was increased by several factors. First, unlike the first offence, the offence in count three was preplanned, as evidenced by the offender’s constant references in the text messages to wanting anal sex, the fact that he brought lubricant and wipes to the picnic and the choice of a remote place. I understood the offender to accept that anal intercourse was planned. However, on his version, the victim had agreed to that plan. I do not accept that the victim had in fact agreed to try anal intercourse. However, based on the jury’s verdict on count two, I must accept the reasonable possibility that the offender believed consensual anal intercourse might occur.

47. Secondly, the prosecutor submitted that the offender knew the victim was not consenting. I have already indicated my finding accepting that submission.

48. Thirdly, the victim suffered injury as a result of the assault, being an anal fissure. As submitted by the prosecutor, for a considerable period of time, that injury served as an unwelcome reminder of the offence. That is a significant aggravating factor.

49. Fourthly, the prosecutor relied on features of the offence which made it more humiliating for the victim, including the fact that the offender tied her up, ejaculated inside her and then wiped her anus, and called her a “freak” for not crying. I accept that those features of the offence made it more serious.

50. Fifthly, the prosecutor relied on the fact that the offence involved domestic violence, as the offender and the victim were intimate partners at the time. I accept that is an aggravating feature of the offence. Even if the offender was polyamorous, as he claims, his relationship with the victim was one of intimacy and ostensible partnership.

51. Sixthly, the prosecutor relied on the fact that the sexual intercourse was unprotected. That is a matter that aggravates the seriousness of the offence.

52. Finally, the prosecutor relied on two aspects of his conduct said to increase the humiliation of the victim: the fact that there was a threat of harm after the incident and the offender’s callousness towards the victim’s pain in a remark he made to her on the way home. I am not satisfied beyond reasonable doubt that the offender threatened the victim in the terms stated by her in evidence. She repeatedly stated that, after the incident, he threatened her life and the lives of her family and her dog. I have no doubt that she perceived him to be threatening but am not persuaded that he said those words in the circumstances described. I do accept that he made a callous remark, when she complained of pain after the assault, that she was “overeacting” and all she needed to do was “take a big shit”.

53. Having regard to those factors, the prosecutor submitted that count three is at the high range of objective seriousness for offences of this kind. The offender urged against a finding that the offending is above mid-range. Leaving aside the factual issue concerning knowledge of consent, the offender relied primarily on his mental state as a factor reducing the objective seriousness of the offence.

54. There was no medical report specifically prepared for the purpose of the sentence hearing addressing the issue of the offender’s mental health. However, there was evidence that the offender was diagnosed with ADHD as a child and, more recently, with autism spectrum disorder. The offender tendered a letter from his treating psychiatrist, Dr Matthew Sellen dated 29 November 2022. Dr Sellen confirmed the diagnosis of ADHD and autism spectrum disorder and noted that the offender had responded well to ADHD treatment. It was not clear from the letter whether the offender was receiving further assistance regarding the autism diagnosis.

55. The assessment of the significance of those diagnoses is complicated by the fact that the offender maintains his innocence. There is accordingly no coherent account of the way in which the offender’s mental state is said to have caused or contributed to the offending. In his statement to the Court tendered at the proceedings on sentence, the offender wrote “I steadfastly believe that [each victim] consented and fully expect to be exonerated on appeal”. He provided the same information for the purpose of a presentence report provided to the Court. The author of that report wrote: Dr McGary expressed the belief he was not receiving appropriate prescription medication for his mental health and felt had he been appropriately medicated at the time, he would not have engaged in sexual activity with the individuals involved. Overall, he presented as attributing his behaviour to external factors and did not appear to accept responsibility for the offences.

56. It was not explained why the offender felt that appropriate medication would have prevented or discouraged him from engaging in what he maintains was lawful, consensual sexual activity. Perhaps he attributes his sexual activity with each woman to the impulsivity that is a known symptom of ADHD. However, that is speculation on my part. If the offender required medication but was not in fact medicated at the time of either offence, and that was sought to be relied upon by him as a mitigating factor, it was for the offender to call evidence about that matter: Olbrich at [25].

57. However, in light of my mixed findings concerning the matters of aggravation relied upon by the prosecution, I do not accept that this offence was at the high end of the range of offences of this kind. I consider that the jury’s mixed verdict stands in the way of a finding to that effect, as it indicates acceptance of the possibility that he believed she was consenting at first. I would assess this offence to be towards the middle of the range. However, the second offence warrants sterner punishment because it was a second offence.

The effect of the offences on the victims

58. Both victims provided victim impact statements. I am required to consider the effect of each offence on each of them: s 33(f) of the Crimes (Sentencing) Act.

59. The first victim said that the offence destroyed their ability to feel ownership of, or joy in, their own body. They described it as a profound violation that has left them with a feeling of worthlessness manifested in self-harming behaviour and suicidality.

60. I note that the first victim also described the re-traumatising impact of the court process on them. I cannot take that into account as an aggravating factor as the offender is not to be punished for exercising his right to plead not guilty. It is nonetheless important to acknowledge their experience. They wrote: Being part of the police and court processes for the past two and a half years has been harrowing. It has been confusing, re-traumatising, and exhausting. I have felt exposed and scrutinised in a way that is completely out of step with my role as the victim of the crime being prosecuted.

61. The first victim also wrote on the topic of punishment. They wrote: …I don’t believe that prisons address the deeper problems that lead to violence or that incarceration is the answer to breaking cycles of harm. Short of never having been raped in the first place, my preference would be that you accepted responsibility for your actions and the harm you’ve caused. Given that you have so far been unable to do that, and with the need for accountability within the system as it exists, I accept that prison is the only appropriate outcome.

62. The first victim’s attitude to the appropriate punishment is legally irrelevant to my task but their preference, as a victim, for accountability over incarceration raises important questions for consideration by others.

63. The second victim also expressed her feelings of re-traumatisation arising from the court processes. She spent many days in cross-examination over three separate trials. During those trials, she suffered from two seizures and required hospitalisation. She has discontinued her postgraduate studies. She continues to be fearful and suffer from flashbacks. She sleeps with the light on. She says that “small tasks felt like mountains”. She describes herself as a “human being who has been irreversibly hurt”.

Circumstances of offender

64. I am required to have regard to the cultural background, character, antecedents, age and physical or mental condition of the offender: Crimes (Sentencing) Act s 33(m). Those issues were addressed in the presentence report and also in the evidence given by the offender at the sentence hearing.

65. The author of the presentence report stated that the offender identifies as being of Jewish descent and spent his formative years in Texas USA. In his evidence in the proceedings, the offender stated that he also identifies as being of Cherokee descent.

66. The presentence report records that the offender gave a history of significant adversity during childhood including alleged physical abuse by his father, periods of homelessness and extended time in mental health facilities between the ages of 14 and 17, [REDACTED]. It is difficult to know what to make of that evidence. On the one hand, it was not addressed in any detail in the offender’s evidence or supported by any objective contemporaneous report. The offender could have sought to adduce evidence on those issues from his mother, as she provided a character reference for the purpose of the proceedings on sentence (her letter was not ultimately relied upon but the point is that she was clearly available to give evidence). As already noted, if the offender sought to rely on his childhood disadvantage as a mitigating factor, it was for him to call evidence about that matter: Olbrich at [25].

67. That said, I am not entirely comfortable putting the remarks reported to the author of the presentence report to one side, for the reason that, in many respects, the offender behaves as one would expect a traumatised person to behave.

68. Separately, whether due to trauma or his mental conditions, which have been diagnosed as ADHD and autism spectrum disorder, there is no doubt that the offender exhibits behavioural difficulties. He acknowledged as much when giving evidence at the sentence hearing, where he said: I would say that there could be - frankly, in my earlier testimony I - I've admitted that I could be absolutely quite rude and that is something that could easily be worked on and it's something that I should work on, to be blunt. So being more respectful and more polite in my interactions with everybody including members of female or gender non-binary communities, yes. I mean, there's something I could get from [participating in rehabilitation programs].

69. The offender has also spoken of his own rudeness in his evidence in the trial. Explaining a text message he sent to the second victim in which he said that he “fights like a rabid junkyard dog”, he said: I can be very rude at times because I’m autistic and I – when I’m – I was just angry. … what I say comes across more rude, yes.

70. In a statement tendered at the proceedings on sentence, the offender reminded me of Dr Sellen’s evidence and asked me to understand his (the offender’s) rudeness during the trial in that context. No explanation was required but, for what it is worth, I accept that explanation. Furthermore, it is important to record that the offender (indeed, any offender) is not to be punished for his behaviour during the trial. Just as the Court makes allowances for complainants giving evidence, some allowance should be made for an accused person who displays signs of stress during their trial for a serious criminal offence. While the courtroom must remain a place of respectful discourse, our understanding of the impact of trauma should be extended equally to both sides of the Bar table.

71. I am satisfied on the balance of probabilities that, by reason of his mental conditions, the offender is likely to have difficulty adjusting to the prison environment and for that reason to experience imprisonment more harshly than some prisoners. As recorded in the bail judgment, he has been assaulted since being remanded in custody. That may have been due in part to his manner of presentation to which I have referred, which in turn may be due to his mental conditions.

72. There was an issue at the trial as to the offender’s exact date of birth. The offender was around 29 years old at the time of count 1, 33 years old for count 2 and is currently 39 years old. He is not entitled to be treated as a young offender.

73. The offender has spent time in many countries around the world, and it is therefore difficult to assess whether he has a pro-social community around him. He told the author of the pre-sentence report that his companions were positive and pro-social influences. At the time of the trial, he was living with his ex-partner and her parents. Before that, he was living with a friend. He noted to the author of the pre-sentence report that he has a number of contacts, predominantly from academic backgrounds. Besides the letter from his mother that was not ultimately relied upon, he tendered two character references, one from the father of his ex-partner and one from a friend whom he met at ANU. He has no dependents.

74. The offender relied on his good character in two respects. First, he has no prior convictions. Secondly, he relied on good character in a specific respect in that he completed his PhD on an important topic, namely due process for indigenous males incarcerated in the NSW prison system. The offender submitted that: the completion of a doctorate focused on so crucial an issue as racial inequality in our courts is a matter that speaks volumes to Dr McGary’s character. The prosecutor noted that, on the other hand, the offending conduct resulted in each of the victims discontinuing their postgraduate studies. Separately, I note that, while the offender has accrued some $400,000 in student debt, he is recorded in the pre-sentence report as stating that he expected that debt “may be forgiven within the next decade”. I am not persuaded that the offender’s good character in those respects should be given more than minimal weight in determining the appropriate sentence.

75. As to the offender’s physical condition, the position is complex. I was initially due to sentence the offender on 17 November 2025. However, shortly before that date, the Court was informed that the offender had a pancreatic tumour that required surgery. The parties agreed that the passing of sentence should be postponed to abide the outcome of that surgery and, in particular, to ascertain whether the tumour was malignant and whether the offender would require ongoing treatment.

76. The proceedings were stood over to yesterday (17 December 2025) so that further evidence could be provided on that issue. The further evidence establishes that the offender underwent an elective distal pancreatectomy. The surgeon removed a primary pancreatic neuroendocrine tumour. There appears to be confidence that all of the tumour was removed. The offender’s understanding is that, without the surgery, it would have metastasised. However, following the surgery, the prognosis appears to be good. No medication was prescribed and no cancer treatment is contemplated at this stage. The surgeon recommended four-monthly surveillance for the first two years followed by six-monthly surveillance for five years.

77. Had the offender received a diagnosis of malignant cancer, I would have had no hesitation in reducing the sentence to be imposed. On the evidence tendered yesterday, I accept on the balance of probabilities that a combination of circumstances will render his experience of imprisonment harsher than that of the putative ordinary prisoner (if there is such a prisoner). First, I accept that the offender has experienced and may continue to experience the harshness of dealing with the uncertainty of a potentially serious medical diagnosis on his own, isolated from friends and family. Secondly, I accept that he may experience gastrointestinal discomfort as a result of the surgery and its effect. I note in that context that the offender complains, separately, that he has not had a kosher diet available for all meals whilst in custody, which is an additional hardship, as is the fact that he has been targeted for assault. Furthermore, there is evidence that he is still not receiving the medications he was being prescribed before he went into custody.

78. Finally, it is relevant to have regard to the delay these proceedings have suffered due to unavoidable circumstances. The offender’s first trial was aborted when the second victim became unable to complete her evidence and was admitted to hospital. The second trial resulted in a hung jury. A third trial date had to be vacated because the offender had been admitted to hospital. In the result, the offender has had these proceedings hanging over his head for a significant period of time which must have been stressful for him, as it undoubtedly was for the two victims.

Remorse and rehabilitation

79. I am required to consider the offender’s attitude to the offences: Crimes (Sentencing) Act s 33(1)(w).

80. The offender has no remorse. He externalises blame for the events that have brought him to court and steadfastly maintains his innocence. Even in his latest statement provided to the Court yesterday, he describes the second victim as a fabricator. He states, “I wish to inform the court why: I know most of the second victim’s source material because she took it from my life”. As to the first victim, he states: I also note that I have been psychologically struggling immensely after learning of the Crown’s failure to disclose that the first victim stole and weaponised [REDACTED] despite my repeated overt requests made in open court (my police misconduct report) and in an email to the DPP.

81. Those assertions, which, as noted by the prosecutor, were made some months after the convictions, indicate that, as the prosecutor put it, rather than embracing any responsibility for the offences, the offender is “doubling down”.

82. In some cases where an offender maintains their innocence pending an appeal, I have nonetheless been persuaded that there are some prospects of rehabilitation. That is not the case for this offender who, on my assessment of his evidence, is highly resistant to any acceptance of blame or responsibility for any aspect of his offending conduct. I reject his assertion that either complainant stole his [REDACTED], for the reasons already explained. I believed the victims and am, in any event, bound by the jury’s verdict.

83. The offender’s unwillingness or incapacity to accept responsibility for his conduct is demonstrated in the fact that he committed the second offence notwithstanding the clear warning by the first victim on 19 December 2016 to which I have already referred.

84. At the proceedings on sentence, the offender was cross-examined as to whether he would participate in any rehabilitation program whilst in custody. He responded by repeating that he did not commit the offences, adding however that he would participate in the program because he thought it could “really help” deal with his trauma, a further confirmation of his lack of remorse. More recently, he has evidently embraced the need at least for rehabilitation in respect of his use of alcohol and that is a positive factor, even though, as noted by the prosecutor, there is no suggestion that alcohol played any role in the commission of the offences.

Purposes of sentencing

85. The purposes of sentencing are stated in s 7 of the Crimes (Sentencing) Act. In the circumstances of this case, I consider that significant weight must be given to the purpose of deterring the offender and others from committing similar offences. In light of the offender’s attitude to the offences, I also consider that the purpose of protecting the community from him should be given some weight. For the reasons I have explained, there is little hope for promoting his rehabilitation. Substantial weight should be given to the purposes of making him accountable for his actions and denouncing his conduct. Finally, substantial weight should be given to the purpose of recognising the harm done to the victims of the crimes and the community.

Current sentencing practice

86. The prosecution provided a table of comparative cases. Some may be discounted because they involved young offenders or significant Bugmy or Verdins considerations. One is a decision of the New South Wales District Court. Leaving aside the fact that a higher maximum penalty applied in that case, the decision of another jurisdiction cannot be taken to reflect current sentencing practice in the Territory.

87. The remaining decisions suggest a range in the order of 2 to 3 years. The prosecutor submitted that this range is too low having regard to the maximum penalty of 12 years. There is some force in that submission.

88. The offences are entirely separate and do not warrant any significant concurrency. I propose to impose sentences of imprisonment totalling 6 and a half years with six months concurrency, giving a total of six years. Having regard to the offender’s refusal to accept responsibility for the offences and his reluctance to engage in rehabilitation, the extent to which the offender has achieved rehabilitation will be an important consideration for the Sentence Administration Board in determining whether and when to grant parole.

89. I propose to fix a relatively short non-parole period for several reasons. First, noting the prospect that the offender’s attitude to the offences may pose a hurdle to his rehabilitation and therefore to his entitlement to parole, it is appropriate to allow for the extended, intensive support he is likely to require. Secondly, notwithstanding my reservations about his prospects of rehabilitation, his prior good character and his academic strength suggest the possibility that he may in due course prove to be a better prospect for rehabilitation than circumstances currently suggest. The possibility of earlier parole may encourage him to engage with the reality of his offending in the manner encouraged by the first victim. Thirdly, this will reflect the matters of hardship to which I have referred. Finally, I have shortened the non-parole period I originally intended to impose by six months to reflect the offender’s medical condition.

Orders

90. Richard Emory McGary, please stand: (1) For the offence of sexual intercourse without consent in count one (CC2024/10808), you are convicted. For that offence, I sentence you to a term of imprisonment for three years commencing on 29 July 2025 and expiring on 28 July 2028. (2) For the offence of sexual intercourse without consent in count three (CC2021/11947), you are convicted. For that offence, I sentence you to a term of imprisonment for three and a half years commencing on 29 January 2028 and expiring on 28 July 2031. (3) I fix a non-parole period of three years commencing on 29 July 2025 and expiring on 28 July 2028.

I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: