DPP v O'Brien

1. On 30 October 2024, a jury found the young person before me for sentence today guilty of five counts on an indictment alleging offences of a sexual nature against four different complainants. There were other counts on the indictment as well – on some he was found not guilty, and on others the jury could not agree.

2. Because of his age at the time of the offences for which I must sentence him, he will be given the pseudonym “Nathan O’Brien”. And to protect the privacy of the complainants, in the version of this sentencing judgment which is published on the Court’s website, I will give them pseudonyms as well.

3. At trial the prosecution relied on what it said was a tendency on the part of the young person to have a sexual interest in adolescent females known to him and to act on that sexual interest by engaging in sexual acts with those adolescent females, having persisted with sexual acts despite their protestations and for his own sexual gratification. The prosecution relied on the evidence of the four complainants in support of the asserted tendency. The jury found the young person guilty of at least one count relating to each complainant. The verdicts of the jury and my own independent assessment of the evidence persuade me that that tendency was established.

4. I am satisfied beyond reasonable doubt that the young person did have the tendency asserted by the prosecution. That explains, but certainly does not excuse, why the young person committed the offences for which I must sentence him.

The Facts

5. What the young person did to those four complainants varied in seriousness, from relatively minor offending, to offending of considerable gravity. I will briefly describe the factual basis of each offence.

Count 2

6. The first complainant, who has been given the pseudonym “Sandra Larson”, gave evidence that she went to school with the young person. One time in an English class the young person reached out and put his left hand on her. She used the word “leg” in her interview with police but on the video recording of her interview with police, she demonstrated by putting her hand on her right thigh. She said that this lasted for five seconds. She asked him to stop which caused him to move his hand away, but he then moved his hand back to the same spot about two minutes later. There was no rubbing or stroking – the young person merely placed his hand on her right thigh for a brief period. The jury found the young person guilty of committing an act of indecency without the complainant’s consent, being reckless as to whether she was consenting. The maximum penalty for that offence is imprisonment for 7 years.

7. By their verdict the jury were satisfied beyond reasonable doubt, that not only did the young person do what Ms Larson said he did, but also that that touching was accompanied by an intention on the part of the young person to obtain sexual gratification. Upsetting as this conduct must have been to Ms Larson, when I assess the objective seriousness of this offence, I note that the touching was brief, she was clothed, there was no rubbing or stroking, they were of similar ages, and it was not an intimate part of Ms Larson’s body which was touched, by which I mean the young person did not touch her genitals, breasts or buttocks. There would not be too many offences of indecent assault which were less objectively serious.

Count 8

8. The jury found the young person not guilty of a number of offences alleged against him regarding the second complainant, who has been given the pseudonym “Cheryl Welch”, but did find him guilty on one count, Count 8. In order to put the facts regarding Count 8 into their proper context it is necessary that I describe the events which formed the basis of two counts on which the young person was not found guilty. The jury found him not guilty on Count 5 and could not agree on Count 7. It would make no sense for the jury to find the young person guilty on Count 8, but not be unanimously satisfied that the conduct the subject of Counts 5 and 7 occurred. Consistent with the jury’s verdict on Count 8, I am satisfied beyond reasonable doubt that the conduct described by Ms Welch which were the subjects of Counts 5 and 7 occurred, but that the jury were not unanimously satisfied beyond reasonable doubt either that she did not consent to that happening, or that the young person was reckless as to whether she was consenting.

9. Ms Welch and the young person were dating. Counts 5, 7 and 8, were all alleged to have taken place in October 2020 on the same occasion in Ms Welch’s bedroom. She was lying on her back on her bed. The young person climbed on top of her and grabbed her breasts. The young person then flipped her over, pulled her pants down, and rubbed his penis between her buttocks. He then penetrated her genitals with his penis until he ejaculated inside her. The jury found the young person not guilty of counts related to the young person touching Ms Welch’s breasts, and rubbing his penis between her buttocks. Count 8, the count on which I must sentence the young person, relates to the act of sexual intercourse which followed.

10. Ms Welch’s evidence was that she was trying to push him off, but he pinned her down. She was trying to get him to stop. She waited to see if he would get off her but she said in her evidence that “he just raped me. And he wouldn’t stop until he was done”.

11. The maximum penalty for that offence is imprisonment for 12 years.

12. Because this offence occurred before 12 May 2022, the jury could not have found the young person guilty if they considered that it was reasonably possible that the young person genuinely believed that Ms Welch was consenting to having sexual intercourse with him.

13. By their verdict the jury were satisfied beyond reasonable doubt that the young person either knew that Ms Welch was not consenting to that act of sexual intercourse, realised that she was not consenting, or did not even think about whether she was consenting.

14. Given what had happened between the young person and Ms Welch before the events of Count 8, as referred to in paragraph 24 of Mr Lee’s submissions, and the inability of the jury to convict the young person on other counts involving Ms Welch, I am not prepared to sentence the young person on the basis that he actually knew that Ms Welch was not consenting to the act of penile/vaginal intercourse which is the subject of Count 8. I will sentence him on the basis that he was reckless as to her lack of consent.

Counts 10 and 11

15. Counts 10 and 11 relate to events which occurred in a music room at the school attended by the young person and the third complainant, who has been given the pseudonym “Rachel Parks”. Prior to that, there had been some consensual sexual activity between them, including an occasion when Ms Parks performed oral sex upon the young person. I mention this only to put in context the later events in the music room.

16. Ms Parks gave evidence that she asked the young person whether she could put mascara on him. When he asked “what’s in it for me” she jokingly offered to perform oral sex on him. The young person tried to kiss her, but she told him “I can’t do this, I won’t”, just “no”. The young person pulled out his penis and asked her to suck it. She said that her response was to say “no, thank you” but he pushed her up against a wall, pulled her pants down, and tried to penetrate her with his penis. That’s Count 10.

17. Ms Parks said “stop. I don’t want to do this” but eventually she froze and just went along with what was happening. She just “gave in”. Her evidence at the trial was that the young person said, “do you want me to do it” and she replied, “fine, you can put it between my thighs, but that is it”. The young person then penetrated her vagina with his penis which caused her to say, “what are you doing?” The young person responded, “I’m putting it in” to which she said “whatever”. He heard a teacher approaching which caused him to stop what he was doing.

18. Later, when she complained to him about what he had done, he said things which indicated that he thought she was consenting.

19. The maximum penalty for Count 10 is 7 years imprisonment and for Count 11, it is 12 years imprisonment.

20. There was some uncertainty of the date on which this conduct occurred. The date range specified in the indictment straddled a change in the law. On 12 May 2022 new laws regarding consent and recklessness for sexual offences came into force under the Crimes (Consent) Amendment Act 2022 (ACT).

21. To put things bluntly, it became easier to prove the guilt of an accused person after that date. Not surprisingly therefore, at trial the prosecution submitted that the events must have occurred after that date, whereas Mr Lee for the young person submitted to the contrary.

22. Now that we are at the phase of the proceedings when I must sentence the young person, the change in the law means that his moral culpability may well be greater if the conduct occurred before 12 May 2022. For example, prior to that date the young person would be acquitted if he had a genuine belief that the complainant was consenting even if that belief was unreasonable, but after that date he would only be acquitted if that genuine belief was a reasonable one. It is clearly less culpable for someone to have sexual intercourse with someone who is not consenting, in circumstances where they have a genuine but mistaken belief, that the person is consenting.

23. It would have been improper for the prosecution now to ask me to find something different to that which they pressed upon the jury as being a finding that they should make beyond reasonable doubt. The prosecution did not do so. Accordingly I will sentence the young person according to the law as it was after 12 May 2022.

24. Following the events in the music room, Ms Parks and the young person spoke to each other over the phone. She asked him if he regretted what he had done. The young person said that he did not. However, after Ms Parks told him that she didn’t actually want to do it, he apologised and said that he did regret it.

25. Ms Parks seemed to accept the genuineness of what the young person said to her in that telephone conversation. There was other evidence too suggesting that there had been some miscommunication about what Ms Parks said and what she was consenting to – including evidence of what Ms Parks said to others about what had happened, and evidence of things said by the young person in a message sent to her. Accordingly, I will sentence the young person on this count on the basis that he had a genuine belief that she was consenting to having sexual intercourse with him but that this belief was not a reasonable one.

26. It is to be noted that had this happened before 12 May 2022 the young person would not have been convicted.

Count 12

27. The last count on which the young person is to be sentenced relates to the fourth complainant, who has been given the pseudonym “Gillian Wheeler”.

28. She met up with the young person one afternoon. He asked her if she wanted to hang out with him. She agreed and so they went to his home and into his bedroom.

29. Whilst there he pushed her down on the bed and said, “can we fuck” or “do you wanna fuck”. The evidence was that she said, “no, I don’t want to”. She said, “no, we’re not doing that. Your mum’s right there”.

30. She said that he kept going, saying “no, it’s fine” and “can I do it?”. The evidence was that she said “no”, but he still took her clothes off.

31. He only took one leg of her jeans and underpants off, moved them out of the way and then had penile vaginal intercourse with her, ejaculating inside her after a short time.

32. She said that she just “laid there and let it happen”, and that she “kind of zoned out a bit and just froze”.

33. This occurred after the law changed on 12 May 2022.

34. In assessing the moral culpability of the young person, as far as this count is concerned, what was going on in his mind is very important. Thus, it is necessary to give some context to the events in his bedroom. Before then, Ms Wheeler had done some things which may well have caused the young person to think that she had a sexual interest in him.

35. For example, she had previously sent him at least one photo of her naked breasts. She didn’t protest when he kissed her in his bedroom, nor when he gently pushed her down so that she was lying on his bed. There was also some dispute as to whether she said “no, we’re not doing that. Your mum’s right there” or merely “your mum’s outside”.

36. But ultimately, the reason that the complainant did not consent to sexual intercourse is not of great moment. Whether she did not want to have sex with the young person because she was not interested in him, or whether it was because she was embarrassed that his mother might hear them, the fact remains that, consistent with the jury’s verdict, she did not consent.

37. What was going on in the young person’s mind is, as I’ve said earlier, important in assessing his moral culpability. After the sexual intercourse had concluded he apologised to the complainant that it was quick. A person who knew that he had just raped someone is unlikely to have apologised that the act of rape was brief.

38. I am prepared to accept on the balance of probabilities that the young person believed that the complainant’s expressed wish not to have sex was not based on an objection to the sexual act itself, but was based on the fact that the young person’s mother was nearby.

39. As I have mentioned already a person is entitled to consent to sex on conditions, such as “I will have sex with you if we are married”. Accordingly, the young person’s belief was not a belief, as the law understands it, that Ms Wheeler was consenting. But in assessing the moral culpability of the young person for this count, I will sentence him on the basis that he believed the only reason that Ms Wheeler was not consenting was because of the presence nearby of the young person’s mother.

Victim Impact Statements

40. I received Victim Impact Statements from Ms Welch and Ms Wheeler, the latter reading her statement aloud from a remote witness room.

41. Those statements were eloquent and forceful reminders about the serious harm that the offences which I have just described almost invariably have on the victims of such crimes. Those consequences are likely to last for a long time, long after the sentences I will impose on the young person have expired.

42. In Ms Welch’s case she will never forget the young person – he is the father of her now 2-year-old child. One can completely understand Ms Welch’s statement that “I can’t put into words how much I love this little boy, but at the same time I hold so much resentment because of how he came to be”.

43. The fact that there were no Victim Impact Statements from Ms Larson and Ms Parks does not mean that they were not harmed of course, and in the case of all offences for which I will sentence the young person, an assessment of the harm caused by his offending is an important part of deciding what sentence to impose upon him. Objective Gravity

44. That brings me to a consideration of the objective gravity of these offences.

45. As far as Count 2 is concerned, it is hard to imagine a less serious example of an indecent assault. I have already mentioned the factors which lead me to that conclusion. The jury must have found that the young person intended to obtain some sexual gratification, but that must have been the most minor sexual gratification indeed.

46. In Count 8, I note that the young person did not wear a condom, ejaculated inside the complainant’s vagina, and caused her pain and to bleed.

47. As far as Counts 10 and 11 are concerned, Count 10 involved the young person using physical force, exposing his penis and pulling down the pants of the victim of the offence. Clearly, this count is of considerable objective seriousness. As for Count 11, Ms Parks experienced pain and the sexual intercourse could not be said to have been brief, only ending when it was thought that a teacher was approaching.

48. Count 12 was another act of intercourse where the young person did not wear a condom and ejaculated inside Ms Wheeler’s vagina.

49. When consideration is taken of the matters I have referred to concerning Counts 8, 11 and 12 it can be seen that they are serious examples of a serious criminal offence.

Subjective Matters

50. The young person is now 19 years of age. He has a minor criminal history, having been previously convicted of an offence of using a carriage service to menace, harass or offend, for which he was placed on a bond to be of good behaviour for 6 months, to be released after serving two days imprisonment. Those two days reflected the time that the young person was in custody, bail refused, on charges which included those for which I am sentencing him. His compliance with supervision by Community Corrections has been satisfactory.

51. The young person is the only child to his parents, who separated when he was 10 years old. His father had a number of children from earlier relationships. The young person has limited contact with his father and older siblings, but has a supportive relationship with his mother. He lives with his mother, stepfather and partner, who has recently given birth to their child. He has no contact with his child to Ms Welch at her request.

52. He left school in Year 11 after experiencing some bullying. His apprenticeship as a locksmith was terminated as a result of these court proceedings, and he now has casual employment at a pet shop. He has no problems with drugs but drinks to excess.

53. His general practitioner diagnosed him with depression and anxiety in his late teens and he engaged with the Child and Adolescent Mental Health Service for a year. Not surprisingly he is anxious about these criminal proceedings and has engaged with Menslink for counselling.

54. Dr Boer prepared a psychological report for the benefit of the Court. It is his opinion that the young person suffers from major depressive disorder, generalised anxiety disorder and alcohol use disorder, and that his problems with depression have existed for some considerable time. Indeed, Dr Boer concluded that it was present at the time of the young person’s offending.

55. The young person told Dr Boer that he had attempted suicide twice and had a history of self-harming.

56. It seems to be the case that the young person’s father’s sexual behaviour left something to be desired. For example, at one stage he was in a sexual relationship with the young person’s 17-year-old babysitter. The young person himself was firstly sexually active at a young age, having as a 12-year-old had intercourse in a public toilet with a girl of similar age.

57. On the other hand there is no suggestion that the young person’s background led to him having an inadequate appreciation of the need to obtain consent before engaging in sexual behaviour with another person.

Sentencing Principles for Young Offenders

58. It is necessary that I apply the special legislative provisions concerning the sentencing of young offenders to be found in Ch 8A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These were summarised in R v Haven (a pseudonym) [2022] ACTCA 61 (R v Haven) at [66] as follows: Those provisions [ss 133C, 133D and 133G] still applied. In order to emphasise their significance, it is useful to summarise what they require: (a) the court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7(1): s 133C(1); (b) the court must have particular regard to the common law principle of individualised justice: s 133C(2); (c) the court must have regard to (s 133D(1)): (i) the young offender’s culpability for the offence having regard to his or her maturity; (ii) the young offender’s state of development; (iii) the past and present family circumstances of the young offender; (d) a sentence of imprisonment imposed on a young offender must be a last resort and for the shortest appropriate term: s 133G(2); and (e) the court must consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition: s 133G(3).

59. I have already made reference to the young person’s moral culpability for his offences when examining his state of mind at the time the offences were committed. It is important to recognise that those findings were informed by a consideration of the comparative immaturity of the young person. Indeed, such matters have to be kept firmly in mind. His decisions to act the way he did must be looked at in the context of his age, understanding, and ability to regulate his behaviour. He is not to be treated as though he were a fully grown adult, with an adult’s knowledge of the world, maturity, and self-control.

60. The prosecution helpfully provided a table showing the age of the young person at the time of his various offences: for Count 2 he was 14 years and 8 months; Count 8, 15 years and 1 month; Counts 10 and 11, 16 years and 6 months; and Count 12, 16 years and 9 months.

61. In R v ME [2017] ACTSC 402 at [11], Burns J was sentencing a young person who was 15 years old. His Honour said: At 15 years of age one cannot say that ME was so old or of such maturity that his state of development was such that he should not be the subject of some leniency with respect to determining the state of his culpability, with respect to these offences. There is nothing to suggest that ME’s state of development was anything other than a normal 15 year old. But a normal 15 year old male is often very immature.

62. These words apply to the present case. I will not sentence the young person as though he was a mature adult.

Prospects of Rehabilitation

63. Whilst rehabilitation must be considered when sentencing almost all offenders, the need to assist an offender to avoid future offending is a much more important consideration when a young person is being sentenced. I have already referred to s 133C of the Sentencing Act which requires that particular regard be paid to individualised justice.

64. In MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 (MT), the Court said, at [64]: We infer that, when the 133C requirement to pay “particular regard” to “individualised justice” is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.

65. The weight to be given to general deterrence in a sentencing exercise concerning adults is different where a young person is being sentenced. As was noted in MT at [88]: [I]n the case of young offenders, there will be a greater emphasis on rehabilitation of the individual and less emphasis on community-focused sentencing purposes such as general deterrence and denunciation.

66. The principle was well expressed in R v Smith [1964] Crim LR 70: In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen.

67. Rehabilitation of an offender can sometimes involve an element of personal deterrence. Punishing a child for playing with matches or running across a busy road is not done for its own sake. Such punishments are imposed in order to protect children from themselves and to persuade them not to act that way in the future.

68. The tendency displayed by the young person on which the prosecution relied at his trial revealed a disturbing attitude of the young person towards young women. His focus on his own sexual gratification led to him ignoring the need to ensure that his sexual partners were consenting to what he was doing.

69. In determining whether an offender has good prospects of rehabilitation or not, it is usually important to consider whether they have displayed any remorse for what they have done – whether they have accepted responsibility for their wrongdoing.

70. While a failure to admit guilt may stand in the way of a finding that the young person is remorseful, that is not always the case.

71. There is another issue surrounding remorse which must be mentioned. The young person still faces a charge concerning one of the complainants, to be heard in the Magistrates Court, and, somewhat unfortunately, the prosecution will not decide whether to retry the young person on the charges where the jury could not agree until after his appeal against conviction has been decided.

72. As a result, at the request of Mr Lee, who appears for the young person, the order I made for the production of a pre-sentence report contained a proviso that those conducting the assessment do not ask the young person anything regarding the count involving Ms Welch, and, presumably because of the possibility of a re-trial in the event the conviction appeal is successful, the young person’s lawyers told him not to discuss the offences for which I am to sentence him.

73. Despite that, when interviewed for the purposes of the preparation of a pre-sentence report by Youth Justice and Adolescent Services, the young person said things which displayed an attitude demonstrating that he does not appreciate the gravity, or even the wrongfulness, of what he has done. This is relevant of course to my consideration of his prospects of rehabilitation, and suggests that there is more of a need for a sentence which contains some component of personal deterrence than would have been the case had the young person expressed his remorse.

74. Apart from the lack of remorse there are matters which suggest that there are good prospects for the young person’s rehabilitation. Perhaps the most important factor in making that determination is the growing maturity of the young person. His last offence was committed when he was 16 years and 9 months old, but he is now 19 and a half years of age. He is employed and in a stable relationship with his partner. They have had a baby together. He is in stable accommodation as well.

75. On the other hand, as the prosecution pointed out, many of those protective features were present when these offences were committed, and there is clear evidence that the young person either has no insight into the effects of his offending, or even that his behaviour was criminal at all.

76. Rehabilitation of an offender can sometimes be promoted by a sentence which reflects the need for personal deterrence. This is one such case. It must be made clear to the young person that his behaviour was wrong, not only for the benefit of the community, but also for his benefit as well.

Delay

77. For reasons which were explained in two judgments I have delivered (DPP v O’Brien (a pseudonym) (No 5) [2025] ACTSC 13 and DPP v O’Brien (a pseudonym) (No 6) [2025] ACTSC 100), there has been a considerable delay between when the jury delivered its verdicts in this matter, and today where the young person is finally being sentenced.

78. The delay was primarily due to those who were required to prepare a pre-sentence report for the young person failing to do so, despite a legislative mandate and orders made by this Court. No part of the delay is attributable to the young person himself.

79. The likely effects upon the young person of this delay are obvious and I’ve taken these into account in determining the sentences to impose upon him.

80. I should also acknowledge that the delay has likely led to more harm being suffered by the victims of his offending. But I must also make it clear that the young person is not to receive increased punishment because of that increased harm as, I repeat, the young person was in no way responsible for that delay.

Current Sentencing Practice

81. The emphasis which the legislature says should be given to “individualised justice” when sentencing a young person does not mean that I should disregard current sentencing practice.

82. I was provided with summaries of what were said to be comparative cases. I mean no criticism when I say that there were limits to the utility of those cases. Many of them involved adult offenders, and most involved pleas of guilty. Some of the cases were relevant to the sentence for Count 2, but others were for offences of sexual intercourse without consent.

83. Even those most similar to the present case had significant differences. R v Haven involved a 17-year-old offender who received a suspended sentence of imprisonment, but he was sentenced for a single count of sexual intercourse without consent, pleaded guilty, and the sentence was found to be lenient, although not manifestly inadequate, by the Court of Appeal. R v CN [2020] ACTSC 282 involved an offender who pleaded guilty to a single count of digital penetration on a sleeping complainant. R v EO [2017] ACTSC 138 was another case where the offender pleaded guilty, but this was to an offence of sexual intercourse with a person under the age of 16, not an offence involving lack of consent. DPP v Best (a pseudonym) [2024] ACTSC 334, concerned one rolled up charge of sexual intercourse without consent committed on a single victim, and a plea of guilty. Finally, in R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 (R v Smith (a pseudonym)), the case perhaps most similar to the present, the young person was sentenced for offences which occurred on a single occasion against a single victim.

84. It is to be observed that none of the cases involving a young offender referred to in the tables of comparative cases resulted in a sentence of actual imprisonment. That said however, none of the cases involved repeated offending against four separate victims, and only R v Smith (a pseudonym) was a case where guilt was determined after trial.

85. That there were multiple victims in the present case should not be underestimated. Not only does that multiply the harm that the young person has caused, but it also cannot be said that any single offence committed by him was an isolated departure from his usual behaviour. To the contrary, as I explained at the beginning of these remarks, this young person demonstrated a tendency to have a sexual interest in adolescent females known to him and to act on that sexual interest by engaging in sexual acts with those adolescent females, having persisted with sexual acts despite their protestations and for his own sexual gratification. For those reasons the fact that in no earlier case to which I was referred did a young person receive a sentence of actual imprisonment, does not mean that such a sentence is inappropriate in the present case.

Hardship in Custody

86. I have taken into account the likely effect of incarceration on the young person. Prisons are nasty places at the best of times, but this young person does not have a criminal background, has not yet been exposed to those for whom criminal behaviour is a way of life, suffers from depression to a significant extent, and, as was observed by Dr Boer, has a less-than-perfect ability to interpret social cues. He will do his time in custody harder than someone without those disadvantages.

General Deterrence

87. Whilst general deterrence and public denunciation play a subordinate role in determining the appropriate sentence to impose upon the young person (see R v AEM [2002] NSWCCA 58 at [97]) there is no reason to depart from the fundamental rule in sentencing, that any sentence must reflect the objective gravity of an offender’s misconduct. Focusing on a young offender’s rehabilitation does not mean that general deterrence and public denunciation are to be ignored. Ultimately, the reason offenders are sentenced is to protect the community. In the case of young offenders it is almost invariably the rule that this protection is best achieved through a sentence which focuses on rehabilitation. But rehabilitation on the one hand and general deterrence and denunciation on the other are not mutually exclusive.

88. It must thus be recognised that it is important to mark, through the sentence to be imposed upon this young person, just how wrong his conduct was. That is particularly the case here where the wrongdoing was repeated, with the young person being found guilty of offences involving four separate victims.

Can an offender be convicted without further punishment?

89. Given the minor nature of the misconduct which was the subject of Count 2, I have decided that the young person should not be further punished on that matter beyond being convicted of that offence.

90. Mr Lee submitted that I should deal with that offence by making a non-conviction order under s 17 of the Sentencing Act. However, I agree with the prosecution that a conviction is required in the circumstances of this case, particularly the circumstance that this offence was not an isolated one. It is not appropriate that this count be “dismissed”. That means that an order under s 17 is not available.

91. A provision such as s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is an important and useful sentencing option where the conviction of an offender is punishment enough. Here in the Australian Capital Territory there is no specific equivalent provision, but it is such a useful sentencing option that it would be remarkable if the legislature did not give sentencing judges the power to do what s 10A of the New South Wales (NSW) legislation achieves.

92. It is no answer to say that sentencing someone to the “rising of the court” (see for example most recently DPP v Bower (No 3) [2024] ACTSC 249 and DPP v Baxter [2025] ACTSC 22 (Baxter) achieves this purpose because such a sentence is a sentence of imprisonment and in many cases the threshold to be found in s 10(2) of the Sentencing Act will not have been crossed. Count 2 in the present case is an example of this. No one could seriously suggest that a sentence of imprisonment, even one which required no period of actual imprisonment, was the only appropriate penalty for that offence.

93. In my view the power to convict without further penalty is to be found in s 7 of the Sentencing Act which provides that: 7 Purposes of sentencing (1) A court may impose a sentence on an offender…” (Emphasis added.)

94. I am of the view that the discretionary nature of the word “may” gives me the power to convict the young person but not order any further punishment.

95. When I raised this with the parties during sentence submissions, they both expressed the view that I was wrong. The prosecutor told me that the view in her office is that I cannot do what I suggested I would do. She suggested a conviction with a token fine; but while peppercorn rents have a part to play in contract law, where consideration is required and it matters not what the value of that consideration is, peppercorn fines are inappropriate when the serious task of sentencing an offender is being done.

96. The parties provided me with some authorities on this issue. I am very grateful for their assistance in attempting to prevent me falling into error. They have done their best.

97. In Okwechime v Sindel [2009] ACTSC 162 at [90] Penfold J commented that counsel in that case “may … be correct that there is no power in the ACT for a magistrate to record a conviction for an offence but not impose any specific penalty in respect of the offence”. Her Honour however was not called upon to decide whether counsel in that case were in fact correct and did not express a concluded view.

98. In Burge v McCarron, Vincent and Tanner [2011] ACTSC 87 (Burge), Refshauge J considered this issue at [25] - [39]. In that case a magistrate had dealt with an offender on five charges. He was sentenced to imprisonment on four of those charges but on the fifth the magistrate’s order was “Convicted, no separate penalty”. On appeal to this Court, by reference to a number of authorities, but in particular Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce), Refshauge J decided that the magistrate’s order was invalid, and substituted instead an order that the charge be dismissed under s 17.

99. Two things are of note. The first is the reference by the magistrate to there being “no separate penalty”. This suggests the possibility that the magistrate in Burge intended that the sentences on the other charges would cover the criminality of the fifth charge. Secondly the reference to Pearce is instructive. Pearce concerned the consequences for sentence when an offender was being dealt with for offences where there was some overlap in their elements. The sentencing judge was held to have been wrong when he imposed identical sentences on the overlapping offences (Pearce at [43]): The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

100. What the judge should have done was “fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence”: Pearce at [45].

101. As the facts in Pearce make clear, Pearce is not a decision about whether every conviction must be accompanied by punishment over and above the opprobrium of the conviction itself. It was a case about the importance of determining the appropriate sentence for each offence before deciding the extent to which there should be any cumulation or concurrence. The High Court was not dealing with the situation I am examining here, where I am sentencing for multiple offences, one of which is not of such seriousness to require a sentence of imprisonment to be imposed; where a bond is not appropriate because of sentences on other matters, but the offence is sufficiently serious that it is not appropriate to dismiss the charge without a conviction under s 17. In Pearce there was no question that the two counts of relevance, Counts 9 and 10, were deserving of sentences of imprisonment – indeed when the matter was remitted to the NSW Court of Criminal Appeal, sentences of imprisonment were imposed for both counts (R v Douglas Wallace Pearce (Court of Criminal Appeal (NSW), 18 December 1998, unrep).

102. Burge is authority for the proposition that it is not permissible to impose a sentence on one count which takes into account the offence charged in another count and then impose no penalty beyond conviction for that other count. However, Burge is not authority for the principle that s 7 does not give a judge the power to convict an offender without imposing any penalty beyond the conviction itself, Refshauge J making no reference to that section in his judgment.

103. Refshauge J returned to this issue as to whether every conviction requires a sentence in Roberts v Smorhun [2013] ACTSC 218, and followed his earlier decision, again without mentioning s 7 in this context. As in Burge, in this case Refshauge J was considering a sentence imposed in circumstances where the conduct of one offence largely covered the conduct of another.

104. More recently, in Morrison v Maher [2021] ACTSC 312, Mossop J accepted a concession made by the prosecution that a magistrate was wrong to make orders in these terms, “I impose no separate penalty” and thus it “was not open to the magistrate to deal with the offences in this way”: at [32]. Again, there was no reference to s 7.

105. In contrast, in at least seven cases, Christensen AJ has done what I have contemplated doing in the present case. These cases are: Baxter; DPP v Mathews [2025] ACTSC 11; DPP v Longmore [2024] ACTSC 278; DPP v Barnes (No 2) [2024] ACTSC 240; DPP v Jacka [2024] ACTSC 376; DPP v Hicks [2024] ACTSC 371; and DPP v Figura [2024] ACTSC 358.

106. Lest it be thought that Christensen AJ is alone in making orders of this kind, I note that they were made by Hopkins AJ in DPP v Higgins (a pseudonym) [2024] ACTSC 225; Loukas-Karlsson J in DPP v Druett [2024] ACTSC 56; and Baker J in DPP v Holder (No 2) [2023] ACTSC 167. Going much further back, Higgins CJ substituted a magistrate’s order with a conviction without further punishment order in at least two cases: Saunders v Crowe [2010] ACTSC 78; and Mills v Lewis & Anor [2008] ACTSC 63.

107. The result is that an order convicting an offender without further punishment has been held by some judges of this Court to be an impermissible outcome, but has nevertheless been made by at least five judges.

108. There is no authority of which I am aware where it is apparent that after argument on this issue, this Court has decided whether the use of the word “may” in s 7 means that it is permissible in this jurisdiction to convict an offender without imposing a penalty.

109. In those circumstances I propose to reason this way. There will be many offences, perhaps more in the Magistrates Court than this Court, where it is not appropriate that a charge be “dismissed” under s 17, but where it is not appropriate to impose any punishment over and above the conviction.

110. Dealing with a matter in that manner is such a useful outcome that it would be surprising if the legislature did not provide for it. It is important to note the use of the word “may” in s 7: 7 Purposes of sentencing (1) A court may impose a sentence on an offender … This is clearly meant to give a judge or magistrate a discretion – but a discretion to do what? It could hardly be a discretion which would allow them to ignore some of the fundamental purposes of sentencing as set out in ss 7(1)(a)–(g).

111. I am satisfied that the word “may” gives a judge or magistrate a discretion as to whether they will “impose a sentence”. This is the more sensible reading of the section, and is consistent with the purpose of allowing judicial officers to convict an offender but impose no penalty beyond the conviction itself.

112. The interpretation of s 7 which I favour is consistent with s 33 of the Sentencing Act. Section 33(1) begins: 33 Sentencing—relevant considerations (1) In deciding how an offender should be sentenced (if at all) for an offence … (Emphasis added.) The words “if at all” recognise that sentencers have the power to not sentence “an offender”.

113. As I interpret the Sentencing Act, it does not require in every case where an offender is being dealt with under that Act that a sentence must be imposed.

114. In case I am wrong about my powers to convict an offender without further punishment, I should indicate that if I did not have the power to sentence the young person on Count 2 in the manner I ultimately will sentence him, I would have instead made an order under s 17(2)(a) of the Sentencing Act. It would be the least worst of the various options available were the possibility of convicting someone without further punishment be denied me.

The sentences for the other counts

115. Turning now to the sentences to impose upon the young person for the remaining counts, the objective gravity of his conduct is obvious. I have already made appropriate assessments earlier in the sentencing judgment.

116. And, in overall terms, the young person’s misconduct is made much worse by its repeated nature against three separate victims, all of whom have been significantly affected by what the young person did to them.

117. Having considered possible alternatives, I am satisfied that no penalty other than a sentence of imprisonment is appropriate. I make that finding even though I have concluded that, as I have already explained, this is not a case where the young person had actual knowledge that the complainants were not consenting to what he was doing, and was instead reckless as to that fact.

118. Having determined the length of those sentences I turn to consider how those sentences should be served. To focus exclusively on the young person’s rehabilitation might suggest that the sentences of imprisonment should be served by means of an Intensive Corrections Order. But even making full allowance for the principles regarding the sentencing of young offenders to which I earlier referred, I am satisfied that it is necessary for the young person to serve a short period of actual imprisonment.

119. It may have been the case, and I need not decide whether it is, that had the young person been sentenced for a single act of sexual intercourse without consent against a single victim, then an Intensive Corrections Order may have been appropriate. But when account is taken of the number of victims, and the number of separate sexual offences committed by this young person, and thus the harm that he has caused, I am satisfied that an Intensive Corrections Order is not an appropriate way for the young person to serve his sentences of imprisonment.

120. Even making full allowance for the principles which apply when sentencing young offenders, the overall objective gravity of the young person’s wrongdoing is such that any sentence which did not involve a period of actual custody would fail to reflect the seriousness of his offences.

121. That said, the period of actual custody does not need to be lengthy. I’ve already referred to the hardships under which this young person will serve his time in jail. The purposes of sentencing in this case are best achieved by structuring the sentence in such a way that the young person spends a short time in prison followed by a lengthy period of supervision.

122. I also have had regard to the fact that the young person was younger when he committed the offence which was the subject of Count 8, than he was when he committed the other offences for which I am to sentence him.

123. I note that the two days custody to which I earlier referred has been taken into account already when he was sentenced for an earlier offence. Thus, the sentences will commence from today.

124. The principle of totality is important. It would not be appropriate for the sentences I will shortly announce to be served entirely concurrently. Counts 10 and 11 aside, these were separate offences involving separate victims. The extra harm that each offence caused must be reflected in extra punishment. On the other hand it is equally inappropriate to impose wholly consecutive sentences because that would lead to an overall sentence which is disproportionate to the totality of the young person’s misconduct.

125. Therefore the sentences I impose will be partially cumulative and partially concurrent with each other.

Registration as a sex offender

126. Mr Lee made an application under s 9(3)(b) of the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act) that his client not be included on the child sex offenders register.

127. Whilst Counts 8, 10, 11 and 12 are clearly objectively serious and have caused harm to the victims of those offences, I am of the view that including the young person on the register is inappropriate in the circumstances of this case. In coming to that conclusion, I have considered the matters in s 9(4) of the Child Sex Offenders Act, as I am required to do. Particularly relevant are the following matters: (a) The prosecution attitude towards the application was neutral. (b) In the time which has elapsed since the young person committed the last offence for which I will sentence him, he has not committed any further offence. (c) He was only 16 years and nine months old at the time of his last offence. (d) Especially given the sentences I will announce, the young person does not pose a risk to the lives or sexual safety of anyone in the community. (e) As in R v Smith (a pseudonym), there was no relevant disparity in the age of the young person and that of the victims of his offending, and thus “there is no evidence of any inappropriate conduct or inclination towards sexual involvement with children per se”: R v Smith (a pseudonym) at [48].

128. I accept the submission of Mr Lee that there is no useful purpose to be served by including the young person on the register. This would inhibit rather than promote his rehabilitation because inclusion on the register is likely to limit his employment prospects.

Orders

129. The orders I make are these: (1) The offender is convicted of the offence of committing an act of indecency without consent (Count 2). (2) The offender is convicted of the offence of engaging in sexual intercourse without consent (Count 8) and is sentenced to imprisonment for 12 months, commencing from today, 2 May 2025 and expiring on 1 May 2026. (3) The offender is convicted of committing an act of indecency without consent (Count 10) and is sentenced to imprisonment for 6 months, commencing from 2 August 2025 and expiring on 1 February 2026. (4) The offender is convicted of engaging in sexual intercourse without consent (Count 11) and is sentenced to imprisonment for 15 months, commencing from 2 August 2025 and expiring on 1 November 2026. (5) The offender is convicted of engaging in sexual intercourse without consent (Count 12) and is sentenced to imprisonment for 18 months, commencing from 2 November 2025 and expiring on 1 May 2027. (6) The overall sentence is thus one of imprisonment for 2 years commencing today, 2 May 2025 and expiring on 1 May 2027. (7) The overall sentence is partly suspended from 1 September 2025, on condition that the offender enter a Good Behaviour Order for a period of 21 months, commencing 1 September 2025 and expiring on 31 May 2027, with the following conditions: (a) Accept the supervision of ACT Corrective Services until 31 May 2027 or such lesser period as deemed appropriate by the young person’s supervisor and obey all reasonable directions of ACT Corrective Services. (b) Be assessed for, and if found suitable, participate in any program intended to rehabilitate sex offenders as directed by ACT Corrective Services. (8) Pursuant to s 9(3) of the Crimes (Child Sex Offenders) Act 2005 (ACT), the offender is not a registrable offender. (9) The young person is marked as a prisoner at risk. I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: