DPP v Robertson

1. Following a trial, the offender, Angus Robertson, was found guilty on four charges alleging sexual offences committed against a woman, who I will refer to as the victim, on 7 October 2022: (a) committing an act of indecency without consent (CAN 7135/2023); (b) engaging in sexual intercourse without consent (SC CAN 8/2024); (c) committing an act of indecency without consent (CAN 7137/2023); and (d) engaging in sexual intercourse without consent (CAN 7138/2023).

2. The maximum penalty for committing an act of indecency without consent is seven years’ imprisonment. The maximum penalty for engaging in sexual intercourse without consent is 12 years’ imprisonment.

3. The victim of the offending is identified in an anonymised way in these reasons in order to comply with the statutory requirement in s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Facts

4. The offender and the victim were both cadets at the Australian Defence Force Academy (ADFA). They were part of the same division and lived on different floors of the same building on the ADFA campus in Canberra.

5. At trial, the principal issue was consent and recklessness as to consent. The stance adopted by the offender was that, although sexual acts had occurred, they were entirely consensual. The verdicts of guilty on each of the four charges indicate that the jury accepted the evidence given by the victim that the acts were not consensual. Further, those verdicts indicate that the jury did not accept the offender’s submission that the victim’s delay in making a complaint and the terms of the complaints made by the victim, as they were recalled by the complaint witnesses, were indicative of a recasting, in the victim’s mind, of a consensual encounter to one that was non-consensual.

6. The victim and the offender were in the same year at ADFA. 2022 was their second year. In early 2021, the year before the offending, the offender and the victim had consensual sexual intercourse in the victim’s room at ADFA.

7. In the period prior to October 2022, a neighbour and friend of the victim had noticed the offender in the victim’s room. The victim later told her that she felt uncomfortable with the fact that the offender had invited himself into her room, sat down and then closed the door. The victim and her neighbour then agreed that, if the neighbour ever walked past and saw the offender in the victim’s room again, she would invite herself into the room so that the victim did not feel uncomfortable.

8. On 7 October 2022, the victim attended the Sisters in Arms cocktail event at Ostani Bar. She returned from that event to her building at ADFA just before 11pm. At about the same time, the offender returned to the building having been out drinking with friends in Manuka.

9. Having returned to her room, the victim went to a communal area to get some water. She was, at that stage, intending to go out again that night. She ran into the offender along the way and they said hello to each other. Upon returning from getting the water, she ran into the offender again. He complimented her on her looks and said that he had been out drinking with some of his rugby mates. He put his hands on her hips and suggested they go into her room. She said “okay”. They went into her room and the two of them started kissing while standing up in the room.

10. The victim asked the offender whether he was still dating his girlfriend. The offender said that he was not dating her anymore. The victim said that she did not want to do anything more, namely, anything more than kissing.

11. At this point, the offender was “getting pretty handsy”. The victim said she did not want to do anything more. Notwithstanding the statement made by the victim, the offender pulled up the victim’s dress and started rubbing her genitals over her underwear. Nothing that the victim said or did communicated her consent to this conduct and, consistent with what she had told the offender, she did not consent. This is the conduct which constitutes count 1, an act of indecency without consent. In response to being touched, the victim said, “I don’t want to do anything”. However, she continued to participate in the kissing.

12. At this stage, the victim was not too concerned because she had been able to handle the offender before and was thinking that it would all be fine. She thought, “this is just drunk Robbo”. The offender then commenced pressuring her to have sex with him, saying, “Are you sure you don’t want to have sex?” She responded, “Yeah, I’m sure I don’t want to”. However, he kept saying, “Come on [name]”, “I know you do”, and “I know you want to have sex with me”. He kept pressuring her and being persistent.

13. The offender then ushered the victim over to the bed. She ended up lying across the bed, perpendicular to its long axis. She was facing the offender. She continued to kiss the offender. He continued to tell her that she wanted to have sex with him, and she told him she did not. The offender spread the victim’s legs with his body and stood between them, leaning over her. The victim’s dress was up around her waist. The offender commented on her lingerie, saying it was “nice”. He then pulled it to the side and put his finger on the victim’s clitoris. The jury’s finding of guilt on this charge indicated that it accepted beyond reasonable doubt that the touching of the clitoris involved the penetration of her genitalia to some extent. It is this conduct which constitutes count 2, sexual intercourse without consent.

14. The offender then pulled his pants down, exposing his penis. He started rubbing his penis around the outside of the victim’s vagina, saying things like, “you know you want to have sex with me” and “let me show you how good I can fuck you”. This is count 3, an act of indecency without consent.

15. He persisted with his importuning of the victim, telling her to just tell him he could have sex with her. He asked her, “can I put it in now”, and the victim capitulated, saying “yeah, sure”, but without enthusiasm. As soon as she did this, the offender inserted his penis into her vagina and started thrusting. She lay back and looked to the side because she did not wish to look at him. She was not actively involved or demonstrating any participation. This is count 4, sexual intercourse without consent. She felt confused and disgusted in herself. The offender was not wearing a condom. After about a minute or two, the victim said, “I don’t want this”, and then mumbled the same thing again. The offender continued thrusting for a short period, until the victim put both hands on his chest and indicated that she wished he cease. He then removed his penis. He did not ejaculate.

16. The jury verdict on this count must be assessed in light of the earlier verdicts, which were consistent with the acceptance of the victim’s version of events, including what she said to the offender. That means that the statement “yeah, sure” must have been assessed in the context of the earlier statements that the victim was not interested in progressing beyond kissing. In those circumstances, the jury must have accepted that the conduct was reckless as to the victim’s lack of consent because the offender was aware of both the earlier boundary setting and his own pushy conduct. Alternatively, if, as a result of the “yeah, sure”, the jury found that he believed that the victim was consenting, then that belief was not reasonable in the circumstances for the purposes of s 67(4) of the Crimes Act 1900 (ACT), and hence the offender would be taken to have knowledge of a lack of consent under that section. I sentence him on the basis of recklessness, as I do not consider that he was so lacking in insight as to be unaware of the risk that, in the circumstances, the victim did not consent.

17. After the offender withdrew his penis, the victim got up and sat on her desk chair. The offender continued to encourage her to have sex with him, saying words like, “Are you sure you don’t want to have sex?”, “I know you want to” and “Why are you being so uptight”. He tried to stroke the inside of her thigh and tried to kiss her, but she pulled away. The victim told him to “Fuck off” or “Piss off”, and he backed away. The offender asked whether he should leave, and she told him that he should. He told her not to tell anyone what had happened.

18. The victim showered and went to bed. She did not go out as she had previously intended.

19. Notwithstanding what the offender had told the victim, he returned to his girlfriend and engaged in sexual acts with her later that night.

20. The next day, the offender communicated with the victim on Snapchat and came down to her room. He came in and sat down. The victim told him that nothing else was going to happen, conveying that she did not want to have sex with him. He asked whether he should leave, and she said yes.

21. There was a delay before the victim made a complaint that the interaction was nonconsensual. She was in denial about it and tried to ignore what had happened. She was contacted by the offender’s girlfriend nine days later. The girlfriend quizzed her about having had sex with the offender. The girlfriend also told the victim that the offender had scabies.

22. The victim confronted the offender about this. She perceived that he was not responsive and made no allegation to him about the intercourse being nonconsensual. However, she attended the health centre at ADFA, had tests for sexually transmitted diseases, and indicated to one of the staff there that the sexual acts had not been consensual. She subsequently made disclosures to various of her ADFA friends about the nonconsensual nature of the interactions.

23. The jury must have rejected the submission made on behalf of the offender that the differences between the terms of her complaint as recalled by her friends and the evidence that she gave to military police and police were indicative of unreliability. The jury must have accepted that delay by victims of sexual assault in making a complaint of a nonconsensual sexual interaction is not uncommon, and consistent with facing up to a traumatic event and confronting the difficult consequences of making a formal complaint, rather than a recasting of a consensual interaction as a nonconsensual one. That is consistent with the acceptance of the victim’s evidence.

Objective seriousness

24. Having regard to the maximum penalties provided by the legislature, both offence types are necessarily serious offences. It is nevertheless, within that context, necessary to assess the relative objective seriousness of the conduct in the present case.

25. In relation to each offence, counsel for the offender submitted that the offence was either at the low or the lowest end of the range of objective seriousness. I have not accepted those submissions.

26. Count 1, the first act of indecency, involved the touching of the victim’s genitals over the outside of her underwear. This involved the touching of the genital area, rather than the breasts or buttocks, and is clearly distinct from a non-contact act of indecency. It occurred in a context where there was consensual kissing, but where the victim had expressly indicated that she did not want to do anything further. It is in the low to mid-range of objective seriousness for this offence.

27. Count 2 involved digital penetration of the victim’s labia majora and touching of her clitoris. Once again, it was without consent and directly contrary to what the victim had said. So far as the physical act is concerned, it was only just within the scope of the offence because it only involved penetration to a limited extent. However, although it occurred while the consensual kissing had continued, it occurred in the context of the earlier express lack of consent and the offender’s continuing pushy behaviour. Once again, it is in the low to mid-range of objective seriousness for this offence.

28. Count 3 was the act of indecency which involved the touching of the victim’s genitalia with the offender’s penis. Although the evidence did indicate that there was penetration of the labia, the charge is of an act of indecency and hence must be assessed as such. So far as the physical act is concerned, it is a more serious example of an act of indecency, involving skin-on-skin contact between the offender’s penis and victim’s genitals. It occurred as part of the pushy advancement of the offender’s sexual desires and was directly contrary to the expressed wishes of the victim, but without any physical coercion or violence. It is a mid-range offence.

29. Count 4 was sexual intercourse without consent. It involved penile–vaginal intercourse of relatively short duration. The offender stopped within a relatively short period after the victim had verbally indicated that she did not wish to continue. Whilst, as a matter of form, the offender only proceeded when he had a statement of consent, the circumstances were such that the articulated consent did not reflect the reality of the situation, and he was reckless as to the lack of consent. Once again, it reflects pushy sexual contact reflective of a sense of entitlement. The continual requests for consent elevated form over substance. It is in the low to mid-range of objective seriousness for this offence.

30. I do not accept the prosecution’s submission that the offending was premeditated. Rather, it was opportunistic. Just because the offender continued to pursue his sexual desires over a period involving a number of acts does not mean that the later acts were premeditated. In order to be an aggravating factor, premeditation must involve some advanced planning or intention. That was not present in this case.

Victim impact

31. The victim prepared a victim impact statement. It was very clearly expressed and described graphically the personal consequences for a victim of sexual assault within ADFA.

32. She described that, prior to the offending, others would have described her as bubbly, energetic, confident, proud and optimistic. She described the offender as having weaponised her own insecurities to break down her defences and exploit her vulnerabilities at the time of the offending. She described him as demonstrating a lack of respect for her.

33. She described the aftermath of the offending as harrowing, being overwhelmed by feelings of shame, disgust, humiliation and self-doubt. While she had been raised to be a strong, independent and empowered woman, she feels that foundation has been shattered and that she is living in the shadow of what occurred.

34. She described the adverse consequences within ADFA that flowed to her as a result of reporting what had happened. She said these consequences went “far beyond anything I could have anticipated”. In particular, the statement set out the impact of being ostracised, bullied and “slut shamed”, particularly by members of the rugby club (of which the offender was a prominent member) and the offender’s wider social circle. The consequences of her social isolation extended to her academic performance. She suffered a decline in mental health, outlined in more detail in the statement, and that, in turn, had consequences for her progress within the Australian Defence Force (ADF).

35. She describes that the incident and everything that followed had a profound and enduring impact on every part of her life, psychologically, professionally, academically and emotionally. Those impacts continue to shape her life in ways that she could never have imagined.

36. The psychological consequences of the offending upon the victim are consistent with the types of long-term and pervasive consequences commonly seen for this type of sexual offending.

Subjective circumstances

37. The personal circumstances of the offender are described in a pre-sentence report, an intensive correction assessment report and various reference letters tendered on his behalf. In response to the reference letters tendered on behalf of the offender, the prosecution tendered some additional material reflecting upon the offender’s character.

38. The offender is 24 years old. He has no criminal record. He was born and raised in Canberra and had a positive upbringing. He continues to maintain supportive relationships with his parents, two siblings and extended family. He is single, with no dependants. He cares for his ill and disabled grandmother on a daily basis. He lives with his parents in Canberra.

39. He completed school to Year 12. He joined the army and was in training at ADFA when the offending occurred. He was suspended pending termination from that position and, as a result of an involuntary separation from the ADF, he ceased service yesterday. He completed a Bachelor of Arts in history and politics, which he had commenced at ADFA, in the period after he had been suspended. He is currently self-employed, running a business which assists older persons with gardening and home technology issues. He has prosocial friends. He denied any problematic alcohol consumption or illicit substance use. He is in stable physical and mental health.

40. Notwithstanding the jury’s verdict, he did not accept responsibility for the offending.

41. He was assessed as having a low risk of general reoffending and an average risk of sexual reoffending. The average risk of sexual reoffending is probably simply a product of the application of the STATIC-99R test, and I have not treated that as being adverse to the offender in light of the other available evidence. He was assessed as suitable for a community service work condition. He was assessed as suitable for an intensive correction order.

42. The reference letters tendered on his behalf come from a range of men and women of different ages, with family or ADF connections to the offender.

43. So far as success within ADFA was concerned, the references indicate that he was successful in all aspects of his life there. The environment appears to be one in which he thrived. He was a Divisional Cadet Captain. He was heavily involved in the rugby club and was captain of the First XV team. He appears to have been widely recognised as somebody who was “made for the job” and looking forward to a career in the military. I observe that this recognition and adulation whilst in the very particular ADFA environment may provide some explanation for the pushy and entitled behaviour that he demonstrated in his dealings with the victim of the offending.

44. The references paint a picture of somebody who has had a privileged and stable upbringing and is trusted and respected by his family and friends. So far as the references disclose, he is otherwise recognised as being respectful towards women. The material relied upon by the prosecution casts a somewhat different light upon his conduct while at ADFA. He is clearly not perfect. However, the material relied upon does not substantially detract from the structural factors indicated by his lack of convictions, stable personal circumstances and capacity to make a contribution to society.

45. There was specific evidence relating to the care provided to his grandmother on a daily basis and the benefit that she obtains, which would be lost if he was given a full-time custodial sentence.

46. The references indicate that, notwithstanding the loss of his military career, which was his dream, the offender has made the best of his circumstances by establishing the small business providing home assistance to the elderly.

Time in custody

47. The offender spent one day in custody which will be taken into account by backdating the sentences.

Consideration

48. The institutional environment at ADFA — which puts young males and females, inexperienced with adult life, together in a military, academic, residential and social context involving a significant degree of competition and the hierarchical systems of authority inherent in a defence force — is one in which sexual offending by men upon women is an obvious risk. Whatever measures were put in place to prevent sexual offending occurring in that environment were not effective in this case.

49. In R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [44], a majority of the Court of Appeal said the following in relation to sentencing for sexual offending: The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.

50. The evidence establishes that the offender is otherwise a person of good character. I can take that into account in assessing his prospects of rehabilitation and reoffending. As Baker J pointed out in DPP v Sullivan (No 5) [2025] ACTSC 303 at [79], offences of this nature are frequently committed by young persons who are otherwise of exemplary character. However, that does not reduce the need for general deterrence, specific deterrence, denunciation, and making the offender accountable for his actions.

51. As the offender has not accepted responsibility for the offending, he has not been able to demonstrate any insight into his behaviour or any remorse which might reflect upon his prospects of rehabilitation and the need for specific deterrence. Notwithstanding this, having regard to the nature of the offending in this case and the consequences that have already flowed to him through the criminal process and the loss of his career in the military, I consider that the risk of reoffending is low and reduces the extent to which specific deterrence must be given weight in determining the sentence to be imposed.

52. It is uncontroversial that custodial sentences of some sort are warranted for the offending in this case. The difference between the parties was as to how such sentences should be served.

53. As the offender was found guilty after a trial, he is not entitled to any discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

54. I have had regard to the decisions summarised in the substantial table of cases provided by the prosecution, the table attached to the decision in DPP v Sullivan (No 5) and the decision in DPP v Hyatt [2025] ACTSC 103, which was referred to by counsel for the offender. Obviously, each case must be assessed on the basis of its own particular objective and subjective circumstances. I consider that the sentences that I will impose are not inconsistent with the pattern of sentencing in this court for an act of indecency without consent and sexual intercourse without consent.

55. Given that the offending involved a series of related acts over a relatively short period, it is appropriate that there be a degree of concurrency between the sentences, but also some significant cumulation, to recognise that each act increased the overall gravity of the conduct and the impact upon the victim.

56. In my view, the appropriate sentences are as follows: (a) count 1: imprisonment for four months; (b) count 2: imprisonment for nine months, cumulative as to six months; (c) count 3: imprisonment for eight months, cumulative as to three months; and (d) count 4: imprisonment for 15 months, cumulative as to nine months.

57. This gives an aggregate sentence of 22 months.

58. Counsel for the offender submitted that, having regard to the nature of the offending and the personal circumstances of the offender, it would be appropriate to order that the sentences be the subject of an intensive correction order under s 11 of the Sentencing Act, allowing the sentences to be served in the community without any immediate requirement for full-time detention. Counsel emphasised that, while there is some leniency when compared with a sentence of full-time custody, an intensive correction order remains a punitive sentence with features that are likely to serve the purpose of general deterrence: R v Wyper (No 2) [2017] ACTSC 103 at [4]-[5]; Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288 at [101]. She emphasised that the level of harm to the victim and the community were not severe, noting that the victim has been able to continue her role in the ADF. She also submitted that the offender does not pose a risk to the public and that, for the offences, the culpability is at the lowest end.

59. In my view, notwithstanding the persuasive personal circumstances of the offender, the purposes of sentencing, most significantly the requirements for general deterrence, denunciation of the conduct and recognition of the harm done to the victim, require, in the circumstances of this case, sentences of full-time imprisonment. I do not consider that an intensive correction order would achieve those purposes, even if combined with a substantial requirement to perform community service.

60. However, partially suspended sentences are appropriate. In proceeding in this way, rather than by way of a non-parole period, I have taken into account the fact that the offender is still young and this will be his first time in prison. Hence, it is likely to have a greater impact than might otherwise be the case. The sentences will be suspended after a period of nine months, subject to a good behaviour order of significant length. In that way, the sentence will contain elements which reflect the purposes of sentencing to which I have just referred, as well as a longer period during which the offender will be the subject of a good behaviour order. A period of supervision following release from custody will allow the offender to be subject to any directions considered appropriate by the Director-General.

Orders

61. The orders of the Court are: (1) On count 1, committing an act of indecency without consent (CAN 7135/2023), the offender is convicted and sentenced to imprisonment for four months starting on 16 July 2025 and ending on 15 November 2025. (2) On count 2, engaging in sexual intercourse without consent (SC CAN 8/2024), the offender is convicted and sentenced to imprisonment for nine months starting on 16 August 2025 and ending on 15 May 2026. (3) On count 3, committing an act of indecency without consent (CAN 7137/2023), the offender is convicted and sentenced to imprisonment for eight months starting on 16 December 2025 and ending on 15 August 2026. (4) On count 4, engaging in sexual intercourse without consent (CAN 7138/2023), the offender is convicted and sentenced to imprisonment for 15 months starting on 16 February 2026 and ending on 15 May 2027. (5) The sentences are suspended after the offender has served nine months imprisonment upon him entering into a good behaviour order for a period of three years with a condition that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General for a period of 12 months.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: