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1. Angus McKay is before the court for sentence, having pleaded guilty to the following offences: (a) Four counts of act of indecency without consent (CAN 8013/2024, CAN 8014/2024, CAN 8015/2024, CAN 8016/2024) contrary to s 60(1) of the Crimes Act 1900 (ACT); and (b) One count of sexual intercourse without consent (CAN 8017/2024) contrary to s 54(1) of the Crimes Act 1900 (ACT).

2. In respect of an act of indecency, the maximum penalty is a term of imprisonment of 7 years for each offence. For sexual intercourse without consent, the maximum penalty is a term of imprisonment of 12 years.

Facts

3. The conduct all relates to one night between 9 and 10 March 2018, when the offender made a decision that would result in the destruction of his close friendship of ten years with the victim. She was 24 years old. He was 25.

4. The facts below are largely taken from a statement of agreed facts that was before the court. On 9 March 2018 the victim had invited the defendant to her mother’s residence where she was staying (the victim’s home). The offender arrived at about 9pm.

5. The pair watched television and then shortly before midnight, they drove to collect the victim’s younger sister from a party and dropped her off at her father’s place of work.

6. The victim and the offender returned to the victim’s home. The victim got into her pyjamas and took some prescription medication before bed. She told the offender that the medications made her drowsy and that she was going to bed soon. The victim began to fall asleep on the lounge around 20 minutes after taking her medication. She got up off the lounge and went to the adjoining bedroom. She lay down on the bed and began falling asleep.

7. The offender came into the bedroom and the victim believed she heard him take off his jeans. The offender got into bed with her. Due to the length of the friendship between them, the victim did not think that was strange. She thought the offender was going to sleep in the bed. The victim fell asleep laying on her left-hand side with the offender behind her. CAN 8013/2024– First Act of indecency without consent

8. The victim woke around 10 minutes later and observed that the offender was “spooning” her, by lying behind her with his front touching her back. The victim went back to sleep. When she awoke again, the offender had his arm over her side and lying against her right breast, with his hand under her shirt but over the top of her bra. The victim thought the offender had done this as he was asleep and had thought it was his partner. The victim shrugged the offender’s body to make him move his arm, which he did. The victim went back to sleep.

CAN 8014/2024– Second Act of indecency without consent

9. The victim awoke again to the offender’s arm in the same position on her breast, under her shirt. The victim made snoring noises to make the offender think she was asleep. The offender moved his hand and she fell asleep again.

CAN 8015/2025– Third Act of indecency without consent

10. The victim awoke again to the offender lightly groping her breast and she wondered if she was dreaming. At this time, the offender placed his hand under her bra and squeezed her nipple firmly. He also continued groping her breast and she tried to move but felt frozen. The victim was unable to make a sound or move her body and felt shocked by what was occurring. The offender continued to touch her breast for about 15 minutes and her breast felt sore.

CAN 8016/2024– Fourth Act of indecency without consent

11. The offender moved his hand down under the victim’s pyjama pants and touched her buttocks over her underwear. The offender squeezed and rubbed the victim’s buttocks. The offender moved his hand to the front of her body and began rubbing her vagina over her clothing. The offender rubbed the victim’s clitoris vigorously through her underwear, which felt rough to the victim. The victim did not know how long this went for but observed that it was getting lighter outside.

12. The victim remained still while the offender engaged in the said conduct. The victim was concerned that the offender would get angry if she moved. The victim was confused, kept falling asleep and felt like she was having an out-of-body experience. The offender switched between rubbing her vagina, her buttocks and her breasts throughout the entire incident. The offender stopped when the victim’s dog barked in another part of the house. The victim squeezed her legs together to make access to her vagina difficult. CAN 8017/2024– Sexual intercourse without consent

13. The offender returned his hand underneath the victim’s pyjama pants and put it inside the victim’s underwear. The offender penetrated the victim’s vagina with one finger. The offender moved from her clitoris to penetrating her vagina and the victim could feel the knuckle of his finger rubbing against the inside of her vagina. This was painful for the victim.

14. The offender moved his hand from the victim’s vagina to her anus, but did not penetrate it. The offender penetrated the victim’s vagina again with two fingers and then three fingers, causing her pain. The victim was unable to speak or make a noise. She described the pain as a burning sensation. During the offending, the offender was breathing heavily and kissed the back of her neck and spine area.

15. After what felt like an hour, the victim did not feel the offender touching her and observed that he had stopped. Around 10 minutes later, the offender’s alarm sounded. The offender stopped the alarm but did not get up. The alarm sounded a second time, around 20 minutes later and the offender got out of the bed. He went to the bathroom, got dressed and left the premises.

16. The victim remained in her bed. Once she knew the offender had left, she got up and locked the front door. At 8.40am, the offender sent the victim a text message stating, “I left without saying goodbye, but I didn’t want to wake you up. Thanks for hanging out.”

17. The remainder of the statement of facts deals with the aftermath of the offending and the events that ultimately and belatedly led to the offender being charged. I will deal with them separately below.

The Court’s task

18. The task of the Court is to sentence the offender by reference to the sentencing objectives and mandatory relevant considerations set out in ss 7 and 33 respectively of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The sentence the court imposes must serve many purposes, including making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victim of the crime and the community but also promoting an offender’s rehabilitation. Those considerations have been taken into account in the reasoning that follows.

19. The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. The application of that principle means that the sentence of adequate punishment in a way that is just and appropriate is one that is uniquely crafted in respect of that individual offender.

20. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. Here, it was accepted that the gravity of the offending meant that no sentence other than a term of imprisonment was appropriate. However, of significance for the offences under consideration here, a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30]. I have stated this at the outset, because the harm to the victim in this specific case is acute. It has been very difficult to demonstrate due recognition of that harm in the circumstances of the offending itself and with this offender’s subjective circumstances. The victim’s trauma casts a heavy shadow over this offender. It is therefore critical to understand the court’s task of giving effect to competing objectives while eschewing emotion and sympathy for everyone involved. I am not saying judges don’t give weight to victim impact or a victim’s pain and trauma in the sentencing task. But the court must be conscious of not allowing personal emotion to drive a particular outcome.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

21. The requirement to consider the nature and circumstances of the offences proceeds upon a number of established principles.

Applicable principles

22. The court assesses the objective seriousness of the conduct in question as part of an overall assessment of where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. Within that assessment, the sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

23. Evaluating the nature and circumstances of the offence is an “objective” task, in the sense that the court determines the seriousness “wholly by reference to the nature of the offending”, and not matters personal to the offender: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

24. The starting point in considering the offending here is that the offences were all sexual in nature. Sexual offences are regarded as objectively serious by the courts: R v Wyper [2017] ACTCA 59 at [114]-[115].

25. At times it is useful to list factors that have been considered as bearing on the objective seriousness assessment. Such lists are not a checklist, with the absence of any factors reducing the objective seriousness of the offence: DPP v Moala (No 3) [2023] ACTSC 306 per McCallum CJ 5 at [24]. Their use lies more in explaining factors that have been considered as bearing on the assessment and whether the seriousness of an offence is aggravated by that factor.

26. Here, a helpful list can be taken from Jurj v The Queen [2016] VSCA 57 at [80], cited in this jurisdiction in cases such as R v Palmer [2017] ACTSC 357 per Mossop J at [22] and DPP v Williams [2024] ACTSC 283 per Taylor J at [20]. Drawing from these cases, the following factors may assist in assessing objective seriousness: (a) Whether the offence was pre-meditated; (b) Whether the offence was alone or in company; (c) How long the offence lasted and whether the victim was sexually assaulted 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 during the offending; (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.

27. Overall, the offending was not pre-meditated. In that regard, I accept that there was a degree of opportunism involved (as to which see R v Goboly [2016] ACTSC 322 at [40]- [45]). To the extent that the offender had planned to have sex with the victim that night, I accept that he had intended consensual sex, not what actually occurred.

28. The conduct was committed by the offender alone. There were no acts of violence nor threats of violence. No weapon was used. The victim was not injured. Beyond what is inherent in the commission of the offences themselves, there were no acts by the offender that degraded or humiliated the victim. I consider the victim was particularly vulnerable, through a combination of circumstances which included that she was asleep at the time of the commencement of, and at times throughout the offending, and that she had taken prescription medication prior to going to bed which had a sedative effect. The offender did not ignore warnings or protests by the victim. It is appreciated that there were reasons for the lack of any protest but repeat that this aspect of the sentencing process is objective.

29. For the conduct here, the offence of sexual intercourse without consent is objectively more serious than the conduct comprising the acts of indecency. Digital penetration is viewed as less serious than penile penetration. However, the conduct was sustained, and caused pain. Accordingly, the conduct here approached the mid-range of seriousness for offences of this type.

30. The latter two acts of indecency are objectively more serious than the first two, which may be characterised as low range offending of this type. The fourth act of indecency specifically falls towards the mid-range of seriousness for offences of this type, due to the multiple touches and locations on the victim’s body, even though it did not involve skin to skin contact.

Plea of guilty and assistance to law enforcement authorities (ss 35 and 36 of the Sentencing Act)

31. The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

32. The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, being the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately elsewhere in these reasons, such as the seriousness of the offence and the impact of the offence on the victim.

33. Utilitarian value is a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49].

34. Here, the pleas of guilty were entered on the first mention of the offences. Having considered the seriousness of the offending here and the impact upon the victim, the utilitarian value of the plea was high. A 25% discount is appropriate.

35. The offender submitted that he was entitled to a further discount pursuant to s 36 of the Sentencing Act (assistance to law enforcement activities). This consideration arises because the agreed facts established that the offender voluntarily and unilaterally approached police to report his own offending in 2021 and participated in the recording of an interview with police where he made admissions as to the offending. While it cannot be said that the offences would have gone undetected but for the offender contacting police, his voluntary participation was in circumstances where the police had twice declined to proceed on the matter in 2018 and in 2019. I consider it to be a measure of the offender’s insight and integrity, albeit belated, that he pursued such a course.

36. The court may decide whether to “impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed” taking into account various matters set out in s 36(3) of the Sentencing Act. They include: (a) The effect of the offence on the victim and those associated with the victim who made a victim impact statement; (b) The value of the assistance; (c) The reliability of the information provided; (d) The nature of the assistance; (e) The timeliness of the assistance; (f) Any benefits that the offender gained because of the assistance; (g) Whether the assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence; and (h) If the offender is to serve a sentence of imprisonment, the likelihood that the offender will commit further offences after release from imprisonment.

37. Other considerations not material to the present circumstances include whether the offender will suffer harsher custodial conditions, or risks of danger to the offender or his family because of the assistance.

38. The applicable principles for reductions in penalty for assistance to authorities were summarised in R v Ngata [2015] ACTSC 356 at [55]-[58]. Without repeating them in full, they include that the discount is not lost if the authorities ultimately do not act on the information. That is significant here, because despite the offender participating in 2021 in a record of interview with police and making admissions as to the offending, for reasons unexplained on the evidence before the court, the matter was initially finalised again without charge. It was only following the Sexual Assault (Police) Review in 2023 that the investigation was re-opened, and the offender was then served in 2024 with a summons to attend Court in respect of the present charges.

39. Given the strong public interest in encouraging offenders to come forward and admit when they have done the wrong thing, I consider it appropriate to impose a lesser penalty, which will feature in the nature and extent of the sentence of imprisonment to be served, discussed at the conclusion of these reasons.

Subjective Circumstances of the offending (s 33(1)(m) of the Sentencing Act)

40. An intensive correction order assessment report (ICO Report) dated 22 January 2025 was before the Court. It confirmed that the offender has a supportive family, and domestic partner of seven years, each of whom have separately provided references in support of the offender. He also has 50% custody of two children from previous relationships, with whom he maintains a close bond. He is educated to a secondary level and has held employment with the same employer for 11 years. The offender has pro-social connections and does not have a history of illicit drug use or difficulties with alcohol use.

41. There are a number of health considerations. These were detailed in the forensic mental health assessment that was before the court and are unnecessary to traverse here. The psychologist was cross-examined and I generally accept her evidence and her diagnosis. Although the offender sought to invoke the Bugmy principles, derived from the case of the same name Bugmy v The Queen [2013] HCA 37; 249 CLR 571, in respect of a reported disruption to schooling (and relied on the Bugmy Bar Book chapter titled Interrupted School Attendance and Suspension) I am not persuaded on the evidence presented that this influenced the offending here.

42. Based on the contents of the psychologist’s report, the offender’s explanations and the ICO Report, I accept that the offender had a skewed sense of what consensual sexual interactions are. The psychologist found evidence of problematic core beliefs in the offender’s reasoning processes around sexual activity. Drawing from what was discussed in the report, I think this manifested in two respects. First, there was a lack of appreciation of the fact that his desire to engage in sexual conduct with a person he viewed as a close friend does not mean that such desire is reciprocated. Second, there was a failure to understand that consent is not obtained by getting into bed with someone who has expressly declined sexual invitations and effectively ‘testing the waters’ by touching inherently sexual body parts, such as the breasts, the vaginal area and the clitoris. The question is (applying the principles derived from R v Verdins [2007] VSCA 102; 16 VR 269 in this case) whether his mental condition contributed to this inability, and I think the evidence supports the conclusion that it did, which affects moral culpability. I further consider that the offender’s health conditions mean that a custodial environment would weigh more heavily on this offender. Criminal Antecedents (s 33(1)(m) of the Sentencing Act)

43. The offender has one prior conviction in 2013 for a driving related offence. Given it is historical and unrelated to the conduct under consideration here, I have applied Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, in that although there are five serious offences before the court, the offending may equally be viewed as a single course of offending on one night that was uncharacteristic of the offender, and leniency in that regard is a consideration.

Victim Impact statements (s 33(1)(f) of the Sentencing Act)

44. There were three victim impact statements read at the hearing on sentence. The victim’s mother and the victim’s current partner each gave statements. The victim herself spoke at length about the trauma and ongoing anguish that has been visited upon her by the offending. I do not consider that a summary in a judgment can properly encapsulate what the victim communicated to the court during the hearing. She went into careful detail about what she felt during the offending – the fear, disgust, pain and nausea. She also revealed the inner turmoil that she has experienced since the offending. She told the offender that he has violated her mind and body, stripped her of her autonomy and self-worth and even her will to live. She spoke to the court of the self-loathing, the mood swings, the flashbacks, her disconnection with the world, her loss of relationships with friends and family and her feelings of isolation.

45. The victim also explained what it felt like when the investigation of the charges was repeatedly closed and the impact on the drawn-out process that has now been years long. That is significant in this case, because the impact to the victim is interwoven with conduct outside the offender’s control. In that way, although the offending remains the primary catalyst, he is not solely responsible for the full extent of the trauma the victim now suffers.

Offender’s accountability (s 33(1)(y) of the Sentencing Act)

46. The offender has been referred on 11 September 2024 for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT) (RJ Act) s 19(1)(b)(i). As at the date of hearing, assessment had yet to occur. The mere fact of willing participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice and the participation of an offender in restorative justice is a relevant consideration independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.

47. During the hearing, I was of the preliminary view that given the trauma to the victim, the case was not one where participation in restorative justice was likely to be fruitful. However, on reflection, there may well be some benefit. The catalyst for reconsidering this aspect of the sentence was what the victim said to the court as she left the witness box. Having delivered her victim impact statement in open court, she said, “thank you for the opportunity to speak and to finally have a voice. I haven’t had one for such a long time.”

48. The objective of the restorative justice process is victim-focussed. Among the objects of the RJ Act (s 6) is a desire to “enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences”. As section 46 of the RJ Act provides, the process can take many forms. It does not necessarily involve a face-to-face meeting. It may involve the exchange of written or emailed statements between participants, of pre-recorded videos between participants, teleconferencing or videoconferencing.

49. It might be anticipated that prior to sentence, the circumstances of the offending were such that the victim may have had no desire at all to participate in the process. However, with the passage of time and following the sentencing of the offender, that position may alter. The restorative justice process is an opportunity for the victim to use her voice to tell the offender how he can help her to move forward and how he can assist her in preventing his offending from consuming her life. The victim will need many tools to get back her spirit and ability to function to the point where she can, for example, even resume her studies and bring some normality back into her life. It is hoped that she can bring the “trajectory of her future”, to use her words, back to one where she can feel good about herself again. Restorative justice is one tool that the justice system offers to victims, with the willingness of the particular offender, to provide an opportunity to do some good for all involved.

Remorse (s 33(1)(w) of the Sentencing Act)

50. I accept that the offender has demonstrated remorse. He has insight into how wrong his behaviour was. In a letter to the court, he accepted that he could have made full admissions to police earlier, and the fact that he did not has compounded the victim’s pain.

51. Correspondence from the offender to the victim was also before the court. Such communication to the victim was unwanted, and in that sense it was misguided, but it bespeaks more of the desperation of a man who knows that he let his friend down spectacularly in his treatment of her that night. Like the victim, he is also grieving the loss of a close friendship, a loss of his own making.

Voluntary treatment for matters that may have contributed to the offence (s 33(1)(t) of the Sentencing Act)

52. As a further indicator of insight into his offending, the offender has separately sought medical treatment in respect of factors that contributed to the conduct, and his treatment provider confirmed his attendance. That is a separate matter which the court must take into account.

Pre-Sentence Custody

53. As a result of the charges commencing by way of summons, the offender has spent no time in custody referable to the offending.

Probable effect of any sentence/order on the offender’s family/dependants (s 33(1)(o)) of the Sentencing Act)

54. The offender has part time custody of two children. The offender accepted that the significant impact to his dependents is not more severe or prejudicial than the inevitable or usual consequences of a sentence of imprisonment: Cotter v Corvisy [2008] ACTSC 64 at [82]. However, the factor is required to be taken into account and while it may not translate into a sentence discount (see Ngata v The Queen [2020] ACTCA 18 at [43]), here it is significant in considering the form of the sentence of imprisonment to be imposed.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

55. The prosecution helpfully provided a table of comparable offences. They were discussed during the hearing. Without setting out the full list, among them I note that R v Wyper (No 2) [2017] ACTSC 103 involved an offence of digital-vaginal penetration where the offender was found guilty after a trial. The offender was sentenced to 2 years and 6 months’ imprisonment, to be served by way of an intensive correction order, including a condition of completing 100 hours of community service within 12 months.

56. In R v Kindl [2015] ACTSC 128, the offender pleaded guilty to one count of an act of indecency. The offending included touching the complainant’s breasts and stomach, engaging in partial digital penetration and pushing a semi-erect penis between the victim’s buttocks. The offender had an intellectual disability and difficult upbringing, with reduced moral culpability. He was sentenced to 12 months’ imprisonment, suspended upon entering into a bond to be of good behaviour for 2 years.

57. In R v Ali (No 4) [202] ACTSC 350, the offender was found guilty of two counts of an act of indecency without consent and one count of sexual intercourse without consent. The complainant woke to the offender kissing her, then placing a hand on her breast and then digitally penetrating her vagina. The offending was relatively brief, the offender was otherwise of good character and there was a low risk of reoffending. In that case, a 2-year sentence of imprisonment was imposed in respect of the sexual intercourse without consent charge, with a two-month sentence of imprisonment imposed for each of the acts of indecency. The offender had been in custody for almost 17 months. A non-parole period of 17 months was set.

58. In R v Aroub [2017] ACTSC 187, the offender was found guilty of one count of sexual intercourse without consent and one act of indecency. The conduct involved digital penetration of the complainant while she was asleep, and then continued when she woke and communicated that it was unwelcome. The act of indecency involved kissing the victim’s back between the shoulder blades for which the offender was sentenced to two months’ imprisonment. In respect of the sexual intercourse without consent offence, the offender was sentenced to two years’ imprisonment with 6 months of that to be served by way of full-time imprisonment and the remainder suspended upon the offender entering into an 18 month good behaviour order.

59. I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

Totality

60. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). It is unnecessary to repeat them here. The offending was plainly a course of conduct with the sentence to be imposed in respect of the act of sexual intercourse without consent largely able to comprehend the criminality of the other acts of indecency. A significant degree of concurrency is warranted, but also a degree of accumulation to recognise the separate offences to the extent that the structure and manner of the sentence to be imposed here allows.

Disposition

61. The relevant sentencing purposes here include adequate punishment, general deterrence, accountability, denunciation and recognition of harm to the victim. It is important for the Court to send a message that offences of sexual violence against women will not be tolerated. Given the above and the circumstances of the investigation and charging of this offender, specific deterrence has been achieved. Rehabilitation is a significant sentencing consideration. At 32-years old, the offender is still a relatively young man with almost no prior criminal history, and he has not previously been imprisoned. It is to his credit that he has taken steps to address the factors that led to the offending and his treatment in that regard is ongoing.

62. Recalling that a sentence of imprisonment was accepted as being warranted, the real issue for this case was whether any period of full-time custody was to be imposed as part of that sentence.

63. For the first three offences involving acts of indecency, a term of imprisonment for two months will be imposed in respect of each offence, each reduced to 1 month 15 days (- 25%) on account of the guilty plea, but in light of the subjective features, including the reduced moral culpability, the offender’s family circumstances and the steps the offender has taken towards his rehabilitation, I do not consider that full-time imprisonment is warranted to give effect to the sentencing objectives outlined above.

64. For the fourth offence involving an act of indecency, which was more objectively serious, a period of four months will be imposed, reduced to 3 months on account of the guilty plea and with partial accumulation upon the earlier acts of indecency. Again, I do not consider that full-time imprisonment is warranted to give effect to the sentencing objectives outlined above.

65. The position is different in respect of the sexual intercourse without consent. A sentence of two years’ imprisonment will be imposed, reduced to 1 year and 6 months on account of the guilty plea. Although the offender was found suitable for an intensive correction order, given the impact on the victim (and being mindful of the nuances in that regard, discussed above), the view I have reached is that proper recognition of that sentencing objective requires at least part of the sentence to be served by way of full-time custody.

66. That period of full-time custody will be (as it must be) the minimum necessary to give effect to all the sentencing purposes. Such component will be short, giving due weight to the offender’s very strong subjective factors. These include the financial support he provides for two dependents, the requirement to take into account the offender’s mental condition in the ways foreshadowed above, as well as the promotion of the offender’s rehabilitation by returning the offender to the community on conditional liberty. Finally, with regard to the discretion to be exercised under s 36 of the Sentencing Act, where suspension of the full-time custodial component of the sentence would have occurred after 4 months, I will instead suspend the sentence following the service of 2 months. Orders

67. The orders of the court are: (1) In respect of the offence of sexual intercourse without consent (CAN 8017/2024) contrary to s 54(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to a term of imprisonment of 1 year six months, reduced from 2 years on account of his guilty plea, to commence on 19 February 2025 and conclude on 18 August 2026 and to be suspended from 18 April 2025 upon the offender entering into an 18-month good behaviour order. (2) In respect of the offence of an act of indecency without consent (CAN 8013/2024) contrary to s 60(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to a term of imprisonment of 1 month and 15 days (reduced from 2 months on account of his guilty plea), to commence on 18 April 2025 and conclude on 1 June 2025. (3) In respect of the offence of an act of indecency without consent (CAN 8014/2024), contrary to s 60(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to a term of imprisonment of 1 month and 15 days (reduced from 2 months on account of his guilty plea) to commence on 25 April 2025 and conclude on 8 June 2025. (4) In respect of the offence of an act of indecency without consent (CAN 8015/2024) contrary to s 60(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to a term of imprisonment of 1 month and 15 days (reduced from 2 months on account of his guilty plea) to commence on 2 May 2025 and conclude on 16 June 2025. (5) In respect of the offence of an act of indecency without consent (CAN 8016/2024) contrary to s 60(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to a term of imprisonment of 3 months (reduced from 4 months on account of his guilty plea) to commence on 7 May 2025 and conclude on 6 August 2025. (6) The sentences imposed in respect of orders 2-5 above are to be immediately suspended upon the offender entering into an 18-month good behaviour order. (7) The good behaviour orders referred to in orders above are to be subject to the additional condition that, within two working days of being released from custody, the offender is to report to ACT Corrective Services and thereafter he is to submit to the supervision of the Services for as long as they deem necessary.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam Associate: N Gannon Date: 19 February 2025