DPP v Sullivan

Parties: Director of Public Prosecutions (Crown)

Jake Sullivan (Offender)

Representation: Counsel

T Hickey (DPP)

S Howell (Offender)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group (Offender)

File Number: SCC 322 of 2022 BAKER J:

Introduction

1. The offender, Jake Sullivan, was tried by a jury of twelve from 9 September 2024 to

24 September 2024 on an indictment that charged him with four counts of sexual

intercourse without consent contrary to s 54 of the Crimes Act 1900 (ACT); one count of

an act of indecency without consent contrary to s 60 of the Crimes Act; and one count of

assault occasioning actual bodily harm contrary to s 24 of the Crimes Act.

2. On 24 September 2024, the jury returned the following verdicts:

Count 1 (CC2022/8509) – sexual intercourse without consent – guilty

Count 2 (CC2022/8510) – sexual intercourse without consent – guilty

Count 3 (CC2022/8512) – sexual intercourse without consent – not guilty

Count 4 (CC2022/8513) – sexual intercourse without consent – not guilty

Count 5 (CC2022/8511) – act of indecency without consent – not guilty

Count 6 (CC2022/8508) – assault occasioning actual bodily harm – guilty

3. The offender now comes before the Court to be sentenced for Counts 1, 2 and 6.

4. The maximum penalty for sexual intercourse without consent is 12 years’ imprisonment.

The maximum penalty for assault occasioning actual bodily harm is 5 years’

imprisonment.

Findings of Fact

Principles to be applied

5. As the offender was found guilty by a jury, it is necessary for me to make findings of fact

upon which the offender will be sentenced. These must be consistent with each of the

jury’s verdicts: Cheung v R [2001] HCA 67; 209 CLR 1 at [14]. I must be satisfied beyond

reasonable doubt of any aggravating matters. I must be satisfied on the balance of

probabilities of any mitigating matters: R v Olbrich [1999] HCA 54; 199 CLR 270.

6. I will firstly address the factual findings that were not the subject of dispute, before turning

to the facts which were the subject of dispute in these sentence proceedings.

Facts that were not disputed at trial

7. The offender and the victim both attended the Australian Defence Force Academy

(ADFA). They met in March 2020 and shortly after matching on Tinder, commenced a casual sexual relationship, which lasted for several months. They reconnected on New

Years Eve of 2021, and remained in contact until the alleged offending.

8. On the afternoon of 11 March 2022, the victim and several friends from her ADFA

Squadron went out for drinks in Ainslie. The victim and her friends then returned to ADFA

for an event. On the same evening, the offender had dinner with friends at a pub in Civic,

and then attended the Mooseheads nightclub.

9. At 9:30pm, the victim and her friends caught an Uber to Civic to attend the Mooseheads

nightclub. The victim saw the offender at the nightclub and approached him. After a brief

conversation, she informed the offender she was heading back to her accommodation

at ADFA. The offender initially told the victim that he would remain in Civic but after

hearing his friend was also planning to return to ADFA, the offender decided to

accompany the victim back to ADFA in an Uber, along with his friend and one of the

victim’s friends.

10. The victim and the offender then went to the victim’s private room at ADFA where they

engaged in consensual sexual intercourse.

Facts that were disputed at trial

The prosecution case

11. The prosecution case was that at some stage during the consensual sexual intercourse,

the offender began to pull the victim’s hair, and grabbed her right arm and right breast

roughly, causing bruising. The victim gave evidence she responded with words to the

effect of “oh… ow, it hurts” or “ow, that really, really hurts” (Count 6 – assault

occasioning actual bodily harm – guilty). The victim then stopped having intercourse

with the offender, got off the offender, turned over, faced the other way and tried to go to

sleep.

12. The victim gave evidence that the offender then said words to the effect of “You’re the

one who invited me over here, you know, you’ve been talking about this for a week, you

couldn’t even make me come.” The victim said that the offender then reached between

her legs and inserted his finger into her vagina without her consent (Count 1 – sexual

intercourse without consent – guilty).

13. The victim gave evidence that the offender then attempted to insert his penis into her

vagina from behind, before physically moving her on top of him and inserting his penis

in her vagina (Count 2 – sexual intercourse without consent – guilty). The victim said

that she “froze” and “blankly stared” at the offender whilst this occurred. She said that

she was scared and did not know what to do. The offender was much bigger than her, and she was scared that he was going to get more aggressive. Expert evidence from

Dr Jessica Pratley adduced by the prosecution in the trial confirmed that such a “freeze”

response is not uncommon for victims of sexual assault.

14. The sexual intercourse continued, during which the victim and the offender changed

positions several times.

15. The victim gave evidence that at one stage during this time, the offender inserted a finger

inside her anus. The victim said words to the effect of “No, no, no, I don’t want to do that”

and told the offender she “hadn’t prepared” for anal intercourse. The offender responded

with words to the effect of “oh, come on” or “it’s fine, I don’t care” (Count 3 – sexual

intercourse without consent – not guilty).

16. The prosecution case was that the victim then attempted to disengage from intercourse

for a second time and told the offender “I just want to sleep”.

17. The victim gave evidence that the offender then repeated words to the effect of “You

didn’t even make me come. You invited me over here” and “oh well, can you at least

touch it” before moving her left hand to touch his penis, and masturbating himself with

her hand (Count 5 – act of indecency without consent – not guilty). The victim said

that she continued to masturbate the offender’s penis, even after the offender moved his

hand away, as she was scared because of his large physical stature.

18. The prosecution case was that the offender then pulled the victim on top of him, and

gestured that he wished to receive oral sex. The victim indicated to the offender that she

did not wish to give him oral sex. The victim said that the offender then pulled her by the

hips, forced her head onto his penis, and held her head for around 30 seconds while she

performed oral sex (Count 4 – sexual intercourse without consent – not guilty).

19. The victim gave evidence that she and the offender continued to engage in sexual

intercourse for approximately a further fifteen minutes. She said that during this time, she

began to cry. The offender suggested they use lubricant. The victim agreed to this and

grabbed the lubricant as she “just wanted it to be over”. The victim and offender

continued to have intercourse until the offender ejaculated.

20. The victim gave evidence that the offender then followed her into the communal showers

at ADFA, where they showered.

21. The victim told the offender he had hurt her. The offender apologised and said that he

was going to return to Mooseheads to visit a kebab shop to get food. He said that he

would return after he had purchased some food. The victim told the offender not to return because he had hurt her and she was in pain. The offender said “Oh, okay, well I’ll

message you in the morning. I’m sorry” and then left.

22. At trial, various witnesses gave evidence of the victim’s distress in the period after these

events. Shortly after the offender left, the victim called her younger brother, who gave

evidence that she was “crying” and “breaking down”. After speaking to her younger

brother, the victim then called a close friend, who immediately went to see the victim.

The friend described the victim as “crying and in a bit of state of disarray [sic]… almost

in a state of shock.” The victim told her mother about the offending on a Facetime call

the following morning. The victim’s mother described the victim as “pale, crying,

trembling lips, very monotone voice, in shock, upset.” Other friends who observed the

victim the following day described the victim as “in distress” and “absolutely devastated”.

One friend gave evidence that her “immediate reaction was that [the victim’s brother] had

died because of just how devastated and, like, lost and horrified she looked.” The friend

also observed the victim’s injuries, which included bruising and blood blisters.

Photographs of the injuries were taken by an Australian Defence Force investigator on

16 March 2022, which depicted bruising on various parts of the victim’s body.

The offender’s case

23. The offender gave evidence in the trial that the victim consented to all penile-vaginal

sexual intercourse with him that night (Count 2). He denied that the victim had ever told

him she was tired or that she wanted to cease intercourse. He also denied injuring the

victim, either by squeezing her breast in an aggressive manner or in any other manner

(Count 6). It was suggested to the jury that the victim may have sustained the bruising

during football training earlier that week.

24. The offender denied that any act of anal intercourse occurred (Count 3) and also denied

penetrating the victim’s vagina with his finger at any time (Count 1). The offender gave

evidence that the victim consensually engaged in oral sex, and denied ever forcing the

victim's head onto his penis (Count 4) or forcing the victim to masturbate him. The

offender maintained that the victim never complained of experiencing any pain, and said

that it was in fact his complaints of pain during intercourse that led to the use of the

lubricant.

The scope of the conduct which constituted Count 2

25. Obviously, the offender stands to be sentenced only for those offences for which he was

found guilty: that is, Counts 1, 2 and 6. The alleged conduct which gave rise to the counts

for which the offender was found not guilty must be disregarded by the Court when

sentencing the offender.

26. However, during the sentence proceedings, an issue arose regarding the scope of the

conduct which constituted Count 2.

27. Count 2 alleged an offence of penile-vaginal intercourse without consent. As outlined

above, the victim’s evidence was that the offender engaged in penile-vaginal sexual

intercourse at the following times:

(i) First, the offender and the victim engaged in consensual penile-vaginal

intercourse shortly after the offender first arrived at the victim’s room (the jury

were instructed that this intercourse was not the subject of any count on the

indictment because it was consensual);

(ii) Second, the offender and the victim engaged in penile-vaginal intercourse after

the offender allegedly assaulted the victim (Count 6) and digitally penetrated her

(Count 1). This intercourse commenced when the offender pulled the victim on

top of him;

(iii) Third, the offender and the victim continued to engage in penile-vaginal

intercourse, which involved the “changing of positions” up until the point in time

when the offender inserted his finger into the victim’s anus (Count 3); and

(iv) Fourth, the offender and the victim engaged in further penile-vaginal intercourse

after the offender made the victim masturbate him (Count 5) and engage in oral

sexual intercourse with him (Count 4). The victim said that during this intercourse,

she began to cry because of the pain that she was experiencing, and the offender

obtained some lubricant for her. This sexual intercourse ended when the offender

ejaculated in her vagina.

28. In the proceedings on sentence, the prosecutor submitted that the prosecution “ran its

case on the understanding that Count 2 encompassed all of the penile-vaginal

intercourse after the offender grabbed the victim and pulled her on top of him, including

the ‘changes of positions’ and that ‘during’ it other unwanted sexual contact occurred”.

That is, the prosecution’s position in the proceedings on sentence was that the jury’s

guilty verdict on Count 2 should be understood as encompassing every act of penile-

vaginal penetration that occurred after the commission of Count 1.

29. In support of this contention, the prosecutor referred to the following passage of his

opening address:

And I expect [the victim] will tell you that she hit a fight or flight response and that it probably didn’t really hit her until afterwards, but he continued to have sex with her and you will hear that there are a few changes of positions. So that is count 2 on the indictment, the penile-vaginal sexual intercourse. And at some point during that, he put his finger or thumb into her anus … (emphasis added in the prosecution’s submissions)

30. The prosecutor also referred to his closing address, in which he submitted that:

And she said she kind of froze again, and that’s when he, like, grabbed her and pulled her, and pulled her on top of him and continued having sex. So the penile/vaginal sexual intercourse after she wasn't consenting is count 2. (emphasis added in the prosecution’s submissions)

31. There may be questions as to whether it would have been permissible for the prosecution

to particularise Count 2 as a ‘course of conduct’, which included more than one act of

penetration over the course of the evening, particularly where some of those acts of

penetration were interrupted by other charged acts: S v The Queen (1989) 168 CLR 266.

32. It is not necessary to resolve that question, upon which neither party made submissions

in the proceedings on sentence. Where the prosecution seeks to rely on a course of

conduct in support of a particular count, it is essential that the prosecution make this

position entirely clear to the Court and to the accused, both in the Prosecution Case

Statement, and in the Opening Address.

33. As can be seen from the above extracts, the prosecution’s statement as to when Count 2

ended was ambiguous in both the opening and closing addresses.

34. Nor was there any clear statement in the Prosecution Case Statement that indicated that

Count 2 was intended to encompass more than one act of penetration. Indeed, the

Prosecution Case Statement conveyed the opposite. Specifically, in the narrative of the

allegations, the Prosecution Case Statement described a single act of penetration, which

occurred after Count 1 and before Count 3 in the following terms:

Count 2 (CC2022/8510) – Sexual Intercourse without consent

The accused then attempted to insert his penis into [the victim’s] vagina from behind before holding her by the hips and manipulating her on top of him and inserted his penis into [the victim’s] vagina.

[The victim] ‘froze’ and stared blankly at the accused as he did this.

35. When the Prosecution Case Statement later referred to subsequent acts of penile-

vaginal intercourse later in the evening (for example, at the end of the evening, after the

alleged commission of Count 4), there was no suggestion that these later penetrations

were also the subject of Count 2.

36. Consistently with the Prosecution Case Statement, in my summing up, I directed the jury

as follows: Turning now to count 2. That concerns the allegation that the accused inserted his penis into the complainant’s vagina. Count 2 is alleged to have occurred very shortly after count 1.

37. I provided a copy of this part of the proposed summing up to both parties prior to the

summing up. The prosecutor did not seek any alternative direction, and, in particular, did

not request that I direct the jury that Count 2 covered all instances of penile-vaginal

intercourse that occurred after the offender pulled the victim on top of him, rather than

simply covering the act of penetration as set out in the direction.

38. The jury’s verdict on Count 2 can only be understood against the directions that were

given. The jury was not instructed that Count 2 encompassed more than one act of

penile-vaginal penetration. The jury was instructed that Count 2 encompassed a single

act of penetration occurring between Count 1 and Count 3.

39. In these circumstances, I do not accept the prosecution’s contention that the jury’s verdict

on Count 2 constituted a finding that every instance of penile-vaginal intercourse that

occurred between the victim and the offender after the offender pulled the victim on top

of him was made out. As I instructed the jury, the act which was the subject of Count 2

is the act of sexual penetration which occurred after the commission of Count 1 and

before the commission of Count 3. I will sentence on this basis.

40. In the alternative, the prosecutor submitted that even if “a narrow view of Count 2 were

taken” (that is, that Count 2 only encompassed the penile-vaginal intercourse occurring

immediately after Count 1), then “that is not the end of the matter”. The prosecutor

continued:

… it is plain that the complainant clearly communicated to the offender that she no longer wanted to continue sexual intercourse with him. Her repeated comments about him hurting her, and getting off him, and rolling away, and telling him she wanted to sleep, couldn’t have spoken more loudly to this. Indeed, the only reasonable inference is that when the offender had to man-handle her smaller frame on top of him (effectively overriding her protest) he must have known she didn’t want to continue sex with him.

Further it is also necessary to put that part of the incident in the context of the broader event, by referring to the fact that the sexual intercourse continued for a lengthy period from that point onwards (on any view) in different positions, where the victim experienced and expressed discomfort to the unwanted sexual activity that followed.

41. However, when assessing the objective seriousness of Count 2, it is necessary to take

account of the jury’s verdicts of not guilty with respect to the later counts. As noted above,

the jury returned not guilty verdicts for Count 3 (digital-anal intercourse); Count 5

(masturbation); and Count 4 (oral sexual intercourse), each of which were alleged to

have occurred after the acts which were the subject of Counts 1, 2 and 6.

42. The reason for the jury’s different verdicts for the two sets of counts is not immediately

clear. In particular, there is no apparent reason to differentiate the victim’s credibility and/

or reliability in respect of Counts 1, 2 and 6 and Counts 3, 4 and 5. In the proceedings

on sentence, the prosecutor did not identify any possible explanation for the different

verdicts.

43. The offender’s counsel contended that the verdicts cannot be reconciled. The offender

has lodged an appeal against his convictions, upon the ground that the verdicts are

inconsistent. It will be the task of the Court of Appeal, rather than myself, to determine

whether the verdicts can be reconciled. As noted above, I have not had the benefit of

any submissions on this issue.

44. For present purposes, where there is no obvious basis upon which the not guilty verdicts

may be explained or rationalised consistently with the guilty verdicts, I consider that I

have no alternative other than to decline to make any finding of fact concerning the period

for which the jury returned verdicts of not guilty (ie, from Count 3 onwards).

The Offender’s Subjective Circumstances

Pre-Sentence Report and Intensive Correction Order Assessment Report

45. The Court was provided with a Pre-Sentence Report (PSR) dated 3 January 2025, and

an Intensive Correction Order Assessment Report (ICOAR) dated 26 March 2025.

46. The authors of each report noted that the offender reported a positive upbringing and

close relationships with his parents and brother. The offender currently resides in

Queensland with his parents and is working at a flooring company.

47. The offender completed year 12 at a private school and completed a Bachelor of Arts

through ADFA. He is currently suspended without pay from the military. He has no

current physical or mental health issues, no history of any mental health diagnoses and

no criminal history. The offender described a positive social circle with no problematic

substance use. The offender had consumed alcohol at the time of the offending, but

there was no evidence in either the prosecution or the defence case that the offender

had consumed an excessive amount of alcohol, or that the quantity of alcohol consumed

contributed to the offending in any way.

48. The offender did not express any remorse for the offending. He told the authors of the

PSR and the ICOAR that he maintained his innocence and was planning to appeal his

conviction.

49. The PSR and ICOAR authors assessed the offender’s risk of reoffending as low, but

assessed the offender’s risk of sexual reoffending as above average. This evidence will

be discussed further when addressing the offender’s prospects of rehabilitation and risk

of reoffending below.

50. The offender was assessed as not suitable for a Community Service work condition or

an ICO as he resides interstate. The offender has indicated that he would be willing to

relocate to Canberra if sentenced to an ICO.

Character references

51. The offender provided nine character references, and tendered an affidavit of his mother

which spoke of the offender’s good character. The character references, which were

provided by his uncle, aunt, a family friend, a friend with whom the offender had had a

sexual relationship, three friends, his brother and his employer, spoke of his kindness,

caring nature and leadership.

52. In written submissions on sentence filed on 7 February 2025, the prosecution objected

to the tender of these character references on the basis that character had not been

raised on behalf of the offender during the trial. The prosecution properly did not press

that objection, but instead sought a fair opportunity to put on character evidence in reply.

The initial sentence hearing was adjourned to permit this to occur.

53. At the subsequent sentence hearing on 2 April 2025, the prosecution tendered a

statement of Ishaq Ali. Mr Ali did not have a close relationship with the offender, but knew

of him through studying, working and socialising. Mr Ali stated he knew the offender as

someone who would regularly binge drink, and would become aggressive and violent

whilst under the effect of alcohol. Mr Ali did not ever personally witness this behaviour.

54. The prosecution also relied, in a supplementary tender bundle, on evidence that had

been obtained for the trial, but which was not admitted at trial, including a series of text

messages that were exchanged between the offender and victim approximately two to

three months before the offences, as well as extracts of statements of other witnesses

which referred to the offender becoming aggressive whilst drunk.

55. I will discuss the weight to be given to this evidence below.

Victim Impact Statement

56. In her victim impact statement, the victim described the effects that the offending has

had upon her. She said: On 11 March 2022… [the offender] raped me in my own bed, after I gave him more than one indicator for him to stop…. the harm from this has impacted my mental health, my job and my sense of worth.

57. In her victim impact statement, the victim described her experience of nightmares,

anxiety, depression and Post Traumatic Stress Disorder as a result of the offending. The

offending has impacted her mental health, her employment and her sense of worth. The

victim now feels “worthless and broken” as a result of the offender’s actions. She finds it

difficult to trust other men. She worries about whether other men will also ignore her if

she says “no”. She has become a more closed off person, and feels that she may “never

be fixed”.

58. I will take into account the victim impact statement in accordance with the provisions of

the Crimes (Sentencing) Act 2005 (ACT) and in accordance with the findings of fact I

have made above, as well as in accordance with the decision of Mossop J in Director of

Public Prosecutions v Mitchell (No 3) [2024] ACTSC 274 at [16] – [17].

Sentencing Considerations

Objective Seriousness

59. I am required to consider the objective seriousness of the offending and where it sits on

the spectrum of conduct establishing the offence. As McCallum CJ held in DPP v

Moala (No 3) [2023] ACTSC 306 at [22], it is not necessary to express a finding of

objective seriousness “as a point on a hypothetical range”. I consider it more appropriate

to assess the objective seriousness by reference to the particular factors which are

relevant to the nature and circumstances of the offences: see s 33(1)(a) of the Crimes

(Sentencing) Act.

Assault occasioning actual bodily harm (Count 6)

60. As outlined above, Count 6 was a count of assault occasioning actual bodily harm. In

assessing the objective seriousness of this offence, I have taken into account the

following matters:

(i) The offence was committed spontaneously. It was not planned or premeditated;

(ii) The offender caused harm to various parts of the victim’s body (her scalp, arm

and breast), by various different acts (pulling hair; grabbing her arm; and twisting

her breast);

(iii) The offender continued to inflict harm upon the victim after she cried out in pain;

(iv) The offending was not momentary, but nor was it particularly long in duration; (v) As a result of the offending, the victim sustained bruising which was tender and

visible 5 days later;

(vi) The offending occurred in the victim’s room, where she was entitled to feel safe;

(vii) The offending occurred whilst the victim was naked, and vulnerable, in her own

bed; and

(viii) The offender was a person that the victim had a personal relationship with, and

trusted.

61. An important issue in determining the objective seriousness of the offending is assessing

the offender’s state of mind when he committed the assault upon the victim. The

offender’s counsel submitted that it was:

… unlikely that [the offender] meant for the relevant acts causing bodily injury to be threatening or hostile. Rather, viewed in context, he likely meant for the relevant acts to excite [the victim], or excite himself, or both of them. His actions however clearly did not have that effect. That said, his conduct was not sufficient for [the victim] to immediately cease intercourse.

62. I accept that the offender did not intend for the relevant acts causing bodily injury to be

threatening or hostile. However, I do not accept the offender’s counsel’s submission that

his acts were motivated by an intent to sexually excite the victim. So much is clear from

the fact that the offender did not cease the assault when the victim cried out in pain. His

response (“you’re the one who invited me over… you couldn’t even make me come”)

demonstrated an attitude of entitlement towards her. I find that the offender acted with

an intention to excite himself, not caring whether he inflicted physical injuries upon the

victim in doing so.

63. The purpose of the offender’s counsel’s additional observation that the offender’s

conduct was “not sufficient for the victim to immediately cease intercourse” was not clear.

Insofar as this submission implied that the assault was less serious, it must be rejected.

As the victim and the expert evidence explained, the victim’s response to the assault was

a “freeze” response. The fact that the victim responded in this way (rather than fleeing

from the offender) says nothing about the seriousness or intensity of the assault.

Sexual intercourse without consent (Counts 1 and 2)

64. A broad range of conduct is encompassed within the offence of sexual intercourse

without consent.

65. In assessing the objective seriousness of the offences of sexual intercourse without

consent, I have taken into account the following matters: (i) Each offence was committed spontaneously. There is no evidence of any

planning, nor of any premeditation. The first acts of sexual intercourse between

the offender and the victim were consensual;

(ii) The act of digital penetration (Count 1) was short in duration;

(iii) Even accepting the limited scope of Count 2 (see at [25] – [39] above), the act of

penile-vaginal intercourse was not short in duration (but nor was it particularly

prolonged);

(iv) The offending occurred in the victim’s room within ADFA, a place where she was

entitled to feel secure;

(v) The offending occurred whilst the victim was naked, and vulnerable, in her own

bed; and

(vi) The offender was a person that the victim had a personal relationship with, and

trusted.

66. Again, in assessing the objective seriousness of the offending, it is necessary to make

factual findings as to the offender’s state of mind.

67. The prosecution submitted that the offender “forced sexual intercourse” on the victim,

“without her consent and over her protestation”. The prosecution further submitted that

the offender “deliberately set about to gain sexual gratification from the victim despite

her protestations”. In so submitting, the prosecution relied upon evidence that the victim

exclaimed “ow that hurts” a few times during intercourse. The prosecution also referred

to the victim’s account of having repeatedly told the offender “no”, and having attempted

the flight, freeze, negotiate and surrender responses to resist further intercourse. The

prosecution submitted these factors increased the objective seriousness of Count 2.

68. For the reasons explained at [23] – [37] above, I have declined to make any findings of

fact (particularly any finding of fact which aggravated the offending) concerning the

period for which the jury returned verdicts of not guilty (that is, after the commission of

Count 2). As the victim’s evidence that she exclaimed in pain during intercourse

concerned the intercourse that occurred at [60(iv)] above, I have not taken that evidence

into account in determining the offender’s state of mind during the commission of Counts

1 or 2.

69. However, this is not particularly significant, because immediately before the commission

of Count 2, the offender had pulled the victim’s hair, roughly grabbed her arm and

grabbed, squeezed and twisted her right breast, causing her pain (which she immediately

expressed to the offender) and bruising (Count 6). The offending in Counts 1 and 2 must be understood in the context of physical violence having been inflicted at such a

proximate time to the offending.

70. Further, the victim had made it abundantly clear to the offender that she did not wish to

engage in further sexual intercourse with him. Specifically, after exclaiming “ow it hurts”,

the victim stopped having intercourse with the offender and turned away from him. The

offender did not accept the victim’s clear indication that she was no longer consenting to

sexual intercourse. Rather, the offender’s response, “you asked me here and you

couldn’t even make me come” demonstrated that his attitude was of self-centred

entitlement. It was at this time that the offender inserted his finger into the victim’s vagina

(Count 1), and then manipulated her on top of him before then inserting his penis into

the victim’s vagina (Count 2).

71. The offender’s counsel properly accepted that the jury must have accepted that the

offender “considered the possibility she was not consenting to either of those further acts

of intercourse, but proceeded anyway”.

72. In view of the chronology of events, I am satisfied beyond reasonable doubt that the

offender knew that the victim did not consent. However, in the particular circumstances

of this case, it matters little to the assessment of the objective seriousness whether the

offender knew that the victim did not consent, or whether he contemplated the possibility

and proceeded nonetheless. An attitude of recklessness in the face of an exclamation of

harm and a clear indication of non-consent is so close to a knowledge of lack of consent

as to be virtually indistinguishable. What is significant is that the offender prioritised his

own sexual gratification over any consideration of the victim.

Character evidence

73. As outlined above, both the offender and the prosecution tendered further evidence

relating to the offender’s character.

74. Very different pictures of the offender’s character were portrayed in these different

documents. As noted above, the character references tendered on behalf of the offender

spoke of the offender’s kindness, caring nature, success in academics, sports and in the

military and his leadership qualities. In contrast, the witness statements tendered by the

prosecution spoke of the offender as having a reputation of being “hot-headed”, and

“angry” or “aggressive” when drunk.

75. As counsel for the offender submitted, care must be taken when assessing the material

contained in the prosecution tender bundle. None of the witnesses whose statements

were relied on by the prosecution described any acts of aggression or violence which they had personally witnessed. Rather, those witnesses spoke of the offender’s general

reputation and events that they had heard about from other people. Similarly, whilst the

text messages sent by the offender may, on one view, be read as indicating a callous

and unsympathetic attitude on the part of the offender towards a possible sexual assault

committed by other persons, the Court was not provided with any context of those text

messages, or any explanation about precisely what precisely it was that the offender and

the victim were speaking about at the time.

76. On the other hand, a number of the character references tendered on behalf of the

offender expressed a level of shock and disbelief that the offender would have engaged

in offending of the kind that he has been convicted of. None of the character references

grappled with the significance of the conduct of the offender, or the harm that he has

caused the victim.

77. Ultimately, the offender’s character is best understood by the objective evidence.

Specifically, he is a young man, who has excelled at school and in the military, and who

has made a positive contribution to the community. He has no prior convictions for

offending of any kind.

78. Section 33(1)(m) of the Crimes (Sentencing) Act requires the Court to consider this

evidence of character. However, the weight to be given to evidence of character can only

be ascertained by reference to the purposes of sentencing, as contained in s 7 of the

Crimes (Sentencing) Act.

79. I will take into account the evidence of the offender’s character as described above in

assessing the offender’s prospects of rehabilitation and the likelihood of reoffending.

Noting that offences of this nature are frequently committed by young persons who are

otherwise of exemplary character, I do not consider that there should be any significant

mitigation in the weight to be given to general deterrence, specific deterrence,

denunciation or the need to make the offender accountable for his actions.

Remorse, prospects of rehabilitation and likelihood of reoffending

80. The offender has not demonstrated any remorse for his offending.

81. The prosecutor submitted that:

… remorse is a major factor in determining whether an offender is unlikely to re-offend or has good prospects of rehabilitation”. Without it, neither finding can be made: R v MAK; R v MSK [2006] NSWCCA 381 at [41].

82. It may be accepted that the presence or absence of remorse will often be an important

consideration in determining an offender’s prospects of rehabilitation and risk of reoffending. However, it is not the case that remorse is required before a positive finding

as to an offender’s prospects of rehabilitation can be made. There can be “rehabilitation

without confession”: see Alseedi v R [2009] NSWCCA 185 at [65]. An offender’s

prospects of rehabilitation are “not necessarily thwarted by his protests of innocence”:

Park v R [2010] NSWCCA 151; 202 A Crim R 133 at [61]. Accordingly, a failure to

express remorse does not, without more, disentitle an offender to a finding that his

prospects of rehabilitation are good: BP v R [2010] NSWCCA 159; 201 A Crim R 379 at

[84], citing Alseedi at [65] and Ali v R [2010] NSWCCA 35 at [48].

83. As noted above, in the present case, the ICOAR and the PSR authors assessed the

offender as being of “average” risk of general reoffending and “above average” risk of

sexual reoffending. The Static-99R Tally Sheet, which was used to assess the offender’s

risk of reoffending explained that the offender’s youth and lack of cohabitation in his

previous relationships contributed to the assessment that the offender was a higher risk

of sexual reoffending. These are statistical measures which are of limited value in

assessing the offender personally: see similarly Western Australia v Dunne (No 2) [2022]

WASC 111 at [35].

84. If the victim had not made a complaint to police, and if the offender had not been brought

to trial, the prospects of the offender engaging in similar conduct in the future may well

have been above average. However, as the character references attest, the offender has

been deeply affected by the trial and by his (albeit relatively short) experience of custody

when incarcerated following the jury’s verdicts. He has no prior convictions, and has

positive support from his family and friends.

85. In these circumstances, despite the offender’s lack of remorse for his offending, I find

that the offender has reasonable prospects of rehabilitation and is unlikely to reoffend.

The burden of imprisonment

86. The offender’s promising military career has been compromised as a result of the present

convictions. It is appropriate to take this matter into account when determining the weight

to be given to the punishment of the offender: R v Gatica [2020] ACTSC 22 at [38]-[42];

R v Nuttall; ex parte Attorney General (Qld) [2011] QCA 120; 2 Qd R 328 at [59].

87. I will also take into account that a sentence of imprisonment will weigh heavily on the

offender, who will be a young person serving a first sentence of imprisonment far from

his family and support network, who are all in Queensland.

88. The offender also submitted that the media reporting of the proceedings should be taken

into account as extra-curial punishment. The media reports that were provided to the Court in the sentence proceedings were fair reports of the trial and the jury’s verdicts

which accurately reported the cases for the prosecution and the offender. Responsible

reporting of a jury’s verdicts does not constitute extra-curial punishment: see Director of

Public Prosecutions v Earle [2023] ACTSC 93 at [39].

Comparative cases

89. The Court is required by s 33(1)(za) of the Crimes (Sentencing) Act to consider

sentences imposed in comparative cases when determining the sentences to be

imposed on the offender.

90. Neither the offender, nor the prosecution provided the Court with any comparative cases.

However, that information was recently provided to the Court in connection with the

sentencing of another young offender for sexual assault without consent in Director of

Public Prosecutions v Umunakwe (No 2) [2025] ACTSC 139. The table provided in

Umunakwe, updated to include sentences imposed since that decision, is attached to

this judgment.

91. I have taken the sentences imposed in those decisions into account, whilst bearing in

mind the limitations of comparative cases: see, for example, R v Pham [2015] HCA 39;

256 CLR 550 at [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017]

HCA 41; 262 CLR 428 at [51]-[53]; Hili v R [2010] HCA 45; 242 CLR 520 at [48]-[49].

Determination

92. The seriousness of offences of sexual intercourse without consent has been long

recognised. The victim impact statement demonstrates why this is so. The offending has

had a profound impact upon the victim’s mental health, her career, and her relationships.

93. As outlined above, whilst I have held that the offender knew that the victim was not

consenting, this is a case in which recklessness (that is, where an offender contemplated

the possibility that a victim does not consent and proceeds nonetheless) would be no

less serious. The offender prioritised his own sexual gratification over any consideration

of the victim. His sense of entitlement has occasioned far-reaching harm to the victim.

As well as recognising the infliction of that harm, the sentences to be imposed must be

sufficient to denounce the offending, to hold the offender accountable for his actions and

to deter similar conduct by others.

94. Acknowledging these matters, the offender’s counsel properly conceded that the s 10

threshold is crossed, and that no sentence other than imprisonment is appropriate for

Counts 1 and 2.

95. The offender’s counsel submitted that the s 10 threshold was not crossed for Count 3,

because “considered alone”, the assault would not have warranted a sentence of

imprisonment. I do not agree. The context of the assault is important. It occurred whilst

the victim was naked and vulnerable in her bed. It involved repeated acts of violence that

were inflicted upon different parts of the victim’s body and was the precursor to two acts

of sexual intercourse without consent.

96. Countervailing against the purposes of sentence to which I have referred is the need to

facilitate the rehabilitation of the offender. The offender was 22 years old at the time of

the offending, and is now 25 years old. As is well recognised, “emotional maturity and

impulse control develop progressively during adolescence and early adulthood”:

Sarhene v R [2022] NSWCCA 79 at [25]. The offending in the present case may be

explained in part by the offender’s lack of emotional maturity. The weight to be given to

the need for rehabilitation is heightened for such an offender. As outlined above, I have

also taken into account the burden of imprisonment for a young man, serving a first

sentence of imprisonment, far from the support of his family and friends.

97. However, even taking these matters into account, the offending remains too serious for

a sentence other than full time imprisonment to be imposed. As Taylor J recently

observed in Director of Public Prosecutions v Benn (No 2) [2025] ACTSC 266 at [115]:

Sexual offending by its nature represents an acutely intimate type of violation. The right to determine how and when to engage in sexual activity with another person is fundamental to the human experience. It need hardly be said that the community rightly expects sentencing courts to make clear their condemnation of conduct which infringes that right.

98. The individual sentences to be imposed will be three years’ imprisonment for Count 2;

two years' imprisonment for Count 1 and one years’ imprisonment for Count 6.

99. The three offences occurred as a part of a single connected course of conduct which

occurred over a relatively short period of time. For this reason, the sentences to be

imposed will be largely concurrent. However, as each offence was constituted by

separate acts, which caused separate harm to the victim, there will be some

accumulation in the sentences to be imposed for each count.

100. Bearing in mind the youth of the offender, I am satisfied that this is a matter where a

partially suspended sentence would best achieve the competing purposes of punishment

and rehabilitation. In my view, suspension of the sentence after a period of 15 months of

full-time custody will give proper weight to the rehabilitation of the offender, whilst

meeting the need for denunciation, deterrence, punishment, accountability and

recognition of the harm caused to the victim.

101. The offender has served 8 days in custody, bail refused, following the jury’s verdicts. The

sentences will be back-dated to take account of this pre-sentence custody.

Orders

102. Accordingly, the offender is sentenced to the following:

(a) For Count 2, the offender is convicted, and I impose a sentence of 3

years’ imprisonment commencing from 8 July 2025 and expiring on 7

July 2028.

(b) For Count 1, the offender is convicted, and I impose a sentence of 2

years’ imprisonment commencing from 23 August 2026 and expiring

on 22 August 2028.

(c) For Count 6, the offender is convicted, and I impose a sentence of 1

year’s imprisonment commencing from 8 October 2027 and expiring

on 7 October 2028.

(d) The total effective sentence will be a period of imprisonment of 3 years

and 3 months, commencing on 8 July 2025 and expiring on 7 October

(e) The sentence is to be suspended after a period of 15 months’

imprisonment on 7 October 2026, upon the offender entering into a

Good Behaviour Order with core conditions for the remainder of the

sentence.

I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 22 October 2025 **************

Amendments

20 October 2025 At [102](b), substitute “21 August 2026” with “23 August 2026”

At [102](b), substitute “20 August 2028” with “22 August 2028”

At [102](a),(b) and (c), after each count number, add “the offender is convicted, and”

At [102](e), at the end of the sentence, add “upon the offender entering into a Good Behaviour Order with core conditions for the remainer of the sentence” ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances Subjective Sentence Circumstances imposed DPP v Benn (No Charges: Guilty plea for Assault 2) [2025] 2 x sexual intercourse without one count of occasioning actual ACTSC 266 consent sexual bodily harm: 2 (Taylor J) 1 x assault occasioning actual bodily intercourse months’ harm without consent imprisonment. (the offence that At the time of the offending, the victim occurred three Sexual intercourse was the offender’s wife. On the date of years after). without consent: 2 the first offence, the victim and the Found guilty years’ offender were together at her house. An after trial on 2 imprisonment. argument commenced between them. other charges. The victim was bent down over the The offender Sexual intercourse dishwasher in the kitchen. The offender was 36 and 39- without consent shoved the victim in her upper back, 40 years at the (guilty plea causing her to fall over and hit her shin. time of applicable): 2 The victim sustained a cut and bruising offending. The years, 10 months’ to her shin. The offender turned around offender had a imprisonment. and went to make a coffee in the pantry. positive and Approximately a week later, the victim happy One month of was asleep in her bedroom. She had upbringing and concurrent gone to bed alone. She woke up later in reported no imprisonment plus the night to find the offender under her instances of fines were blankets. The offender had taken off her domestic imposed in clothes and was in between her legs violence or relation to the licking her vagina. The victim pushed the substance use. transferred offender away and asked, “what are you Stable charges. doing?” The offender replied, “you are accommodation still my wife”, and then left the room. and Total sentence of Three days later, the offender left their employment 3 years, 10 house and went to reside interstate until were available months’ alternative living arrangements could be to the offender. imprisonment. made. Three years later, the offender The offender Non-parole period and victim were at their house. The expressed no of 1 year, 5 victim and offender had been drinking in remorse and months. the evening and subsequently went to stated that the bed. The victim woke up in the night. She victim had found that the offender was engaging in “manipulated penile-vaginal intercourse with her. The and misled” the victim asked the offender what he was criminal justice doing, and the offender told her that he system. was asleep and did not know he was doing it. The victim got out of bed and had a shower as she felt disgusting. One additional related offence concerning an act of indecency without consent was taken into account. Transferred charges of destroying/damaging property and common assault were also considered for sentencing.

DPP v Lodding Charges: Found guilty 2 years, 10 (No 5) [2025] 1 x sexual intercourse without after trial. months’ ACTSC 240 consent Offender was 35 imprisonment. (Burns AJ) The offender was in a relationship with years old at the the victim’s mother and resided with the time of Objective Circumstances Subjective Sentence Circumstances imposed victim’s mother. The victim, who was 16 offending. The Suspended on 1 years old, primarily resided with her offender had a year and 3 months father but came to stay with her mother positive family upon entering a and the offender for two weeks. The environment. He good behaviour offender made sexual comments had stable order for the towards the victim over the course of her accommodation, remaining period. stay. On the day of the offence, the family support victim had consumed alcohol and and no issues cannabis until she was acutely with substance intoxicated. The victim retired to her abuse. The bedroom and lay down on an inflatable offender had a mattress. The victim’s mother placed a consistent work bucket beside the victim into which the history however victim vomited. The victim’s friend, who his employment was staying at the residence as well, was terminated came to check that the victim was okay following his and then left the residence. Soon after, conviction. the offender entered the room and began rubbing the victim’s thigh. The offender ceased his behaviour when the victim’s mother returned to clean the bucket out. The victim requested that her mother call her friend and ask her friend to return. The victim’s mother left the room to do so. The offender re-commenced rubbing the victim’s thigh. Subsequently, he put his hand inside her tights and under her underwear. The offender rubbed the victim’s clitoris before inserting a finger into the victim’s vagina. During this period, the victim had her eyes closed and felt unable to do anything to stop the offender. The offender would periodically cease his conduct when the victim’s mother entered the room. The offending concluded on one occasion when the victim’s mother returned, and the offender said he was going to bed and left the room.

DPP v Ivanovski Charges: Found guilty Two years, six [2025] ACTSC 1 x sexual intercourse without after trial. months’ 237 (Burns AJ) consent Offender was 34 imprisonment. The victim was working as an escort at a years old at the bar and commercial brothel. The time of the Suspended on establishment did not offer unprotected offence. one year upon sexual services. The offender made a Offender had a entering a good booking with the victim and told her he relatively stable behaviour order wanted to have unprotected sexual family history. for the remaining intercourse with her. The victim told the He had no period. offender that he was required to use a history of condom if he wanted to have sex. The substance offender became irritated but agreed to abuse or use a condom. The offender was unable criminal activity. to sustain an erection with the condom Offender had a on. During the booking, the offender very good work turned the victim over so that she was on history. He her hands and knees facing away from continued to the offender. The offender then removed Objective Circumstances Subjective Sentence Circumstances imposed the condom and engaged in penile- deny committing vaginal intercourse. Soon after, the the offence. victim’s booking timer went off, and the victim told the offender that it was time to leave. At this point, the victim then saw that the offender was not wearing a condom. The victim made an immediate complaint to the manager that the offender had stealthed her.

DPP v Ware Charges: Found guilty Sentence imposed [2024] ACTSC 2 x sexual intercourse without after trial. by Berman AJ, 52 (Berman AJ) consent Offender was 36 upheld by the Ware v DPP The offender and the victim were years old at the Court of Appeal. [2025] ACTCA neighbours. They spent time together time of 15 (Loukas- consuming drugs which were usually offending. Three years’ Karlsson, Baker supplied by the offender. On the date of Offender had a imprisonment for and Taylor JJ) the first count, the offender and the troubled each count. victim were in the victim’s home. They background consumed methylamphetamine together particularly in Total sentence of and fell asleep on a couch. The victim regard to his four years’ later woke up but felt unable to move. family life. imprisonment. The offender was behind her. He pulled Offender had a Non-parole period her clothes down and engaged in penile- history of of three years. vaginal intercourse with the victim. The troubles with victim did not say or do anything to drugs. He had a indicate that she was consenting. The lengthy criminal victim continued to associate with the history and offender, and further acts of sexual mental health intercourse occurred, the victim saying troubles, but that each was without consent. The these did not second count relates to the final affect his occasion on which the offender and the capacity to form victim had sex. The offender invited the judgements. victim to his home where they consumed methylamphetamine together. They were seated on a couch. The offender began moving towards the victim, who moved away. The offender picked the victim up, carried her to his bed, removed her clothes and commenced penile-vaginal intercourse with her. At one stage, the offender told the victim to get on top of him. She did so because she was afraid of him. The victim did not do or say anything to indicate that she was consenting. The offender was tried and convicted before a jury and was subsequently sentenced. The offender was also sentenced for unrelated historical offences committed in 2013-2014, though these were imposed on a concurrent basis. The offender appealed the conviction on the ground that the decisions were unsafe and unsatisfactory having regard to the evidence. The appeal was dismissed. Objective Circumstances Subjective Sentence Circumstances imposed DPP v Hojlund Charges: Guilty plea. Aggravated (No 2) [2025] 1 x aggravated intimate observations The offender intimate ACTSC 211 or capturing visual data was aged observations: 1 (Baker J) 3 x aggravated sexual intercourse between 26 and year, 10 months without consent 27 years of age and 14 days’ 1 x sexual intercourse without at the time of imprisonment consent offending. The The offending related to two separate offender did not Aggravated sexual victims over two separate time periods. have a intercourse The first victim and the offender were in traumatic without consent: 5 a sexual relationship. On the night of the childhood. The years, 2 months offending, the offender and the first offender was and 14 days’ victim went to a hotel. The offender set homeless for 5 imprisonment up a camera facing the bed while the first years prior to victim took a shower. The offender came offending. The Aggravated sexual to the shower and injected the first victim offender did not intercourse with MDMA and methamphetamine. The have without consent: 3 offender assisted the first victim on to the employment years, 3 months bed. They engaged in consensual sexual and had a and 14 days’ intercourse. The offender then injected history of illicit imprisonment. the first victim with GHB and she lost substance use. consciousness. When the first victim The offender Aggravated sexual regained consciousness the next reported mental intercourse morning, she felt unwell. The first victim health issues, without consent: 3 later discovered the offender’s videos of and showed a years, 3 months the hotel room. During the entirety of the limited degree and 14 days’ conduct depicted on the videos, the first of remorse for imprisonment. victim was unconscious. The videos his offending. depicted three counts of aggravated Sexual intercourse sexual intercourse without consent, and without consent: 3 one count of aggravated common years, 7 months’ assault, being spitting on the first victim. imprisonment. The second victim and the offender had also been in a sexual relationship. On an Total sentence of unknown date during their relationship, 9 years, 3 months the second victim consumed an and 11 days’ unknown substance and lost imprisonment. consciousness. After regaining Non-parole period consciousness, the offender told the of 6 years. second victim that while he was asleep, the offender had engaged in penile-anal intercourse with the second victim. On another date, the offender and the second victim hosted a gathering at the second victim’s house. The second victim recalled being in the lounge room. His next memory was waking up alone in the bedroom. When he returned to the lounge room, the offender showed the second victim a video on his phone. The second victim recognised his own bedroom in the video. The video depicted the offender engaging in penile-anal intercourse with the person on the bed. The offender told the second victim that the person in the video was the second victim, and that “I just had sex with you whilst you were passed out”. Objective Circumstances Subjective Sentence Circumstances imposed Additional offences of aggravated common assault and making intimate observations taken into account.

DPP v Smith Charges: Found guilty Sexual intercourse (No 5) [2025] 1 x sexual intercourse without after trial and without consent: ACTSC 188 consent hearing of Three years’ (Mossop J) 1 x act of indecency without consent transfer charge imprisonment 1 x common assault (common The offender was living with the victim. assault). Act of indecency: She was approximately 34 weeks Two months’ pregnant. The offender went out with his The offender imprisonment older brother, and consumed was 18 years methamphetamine, cocaine and alcohol old at the time Common assault: while he was out. When the offender of offending. Three months’ came home, he accused the victim of The offender imprisonment having someone there with her. He was suffered from initially behaving reasonably but then schizophrenia or Total sentence of switched and made violent threats. The a schizophrenia- 3 years, 3 months’ victim went back to sleep. The offender related imprisonment. subsequently woke her up because he condition. He Non-parole period wanted to have sex. The victim said no. had a history of of 23 months. The offender made the victim get on her illicit substance knees and perform oral sex on him. The use. The offender also touched the outside of the offender had a victim’s vagina and said “who’s been in very poor there”, alleging that she had been with criminal history. someone else. After the offence, the victim cried herself back to sleep. When she woke up, she ordered pizza as she was hungry. The offender interpreted the pizza delivery person as being “someone sneaking around the back that he thought was over the night before”. The offender made several threats against the victim. He took off his shoe and hit the victim in the face with it.

DPP v Charges: Found guilty 3 years Umunakwe (No 1 x sexual intercourse without after trial imprisonment. 2) [2025] consent Non-parole period ACTSC 139 The victim went to several nightclubs in The offender of 2 years. (Baker J) Civic with friends. On that evening, the was 21 years offender was also out in Civic with old at the time several friends. The victim and offender of the offending. danced together and kissed over the He had a history course of the evening at one nightclub. of substance The victim eventually left the nightclub abuse and a and went to a different one, which the criminal record offender was already at. The offender with one and the victim went to the male bathroom previous together and walked into the disabled incident. The stall. The offender requested that the offender victim perform oral sex upon him, which expressed she refused. The offender told the victim limited remorse to get up against the wall and inserted for his his penis into the victim’s vagina. (Count offending. The 1) The offender then turned the victim offender was at around to face him and asked again for risk of Objective Circumstances Subjective Sentence Circumstances imposed her to perform oral sex upon him, which deportation due the victim refused again. The offender to the sentence. then turned the victim back around and The offence was again inserted his penis into her vagina. committed 16 (Count 2) The victim repeatedly told the months after the accused to stop, tried to get away and imposition of a was crying. The victim also gave good behaviour evidence that the offender also inserted order, and 2 his penis into her anus without consent. months before it (Count 3). The offender was found guilty concluded. by a jury of Count 2 only.

DPP v Ierfone Charges: Found guilty Sexual intercourse [2025] ACTSC 1x act of indecency without consent after trial without consent: 60 (Taylor J) 1x sexual intercourse without Convicted and consent Offender was 29 sentenced to two The offender and victim were years of age at years of colleagues. They attended a Christmas time of sentence imprisonment. party together in December 2022. The and reported Act of indecency offender touched the victim’s breasts stable without consent: which was captured on CCTV. The victim upbringing and Convicted and offered to drive the offender home in her employment sentenced to 10 vehicle. The offender asked to go home history. Offender months with the victim and she declined. The showed little imprisonment. offender digitally penetrated the victim’s remorse. Sentences vagina over her stockings in her car. partially cumulative. Total term of imprisonment for two years and four months. Sentence to be suspended after offender spent four months in custody.

DPP v Williams Charges: Guilty plea Two years [2024] ACTSC 1 x sexual intercourse without (discount of imprisonment 283 (Taylor J) consent 20% applied) suspended after The offender and the victim had been in serving six a relationship, broken up but had The offender months in custody reunited to “work things out”. The victim was 52 years of and allowed the offender to stay the night at age and entering into a her residence. They went to bed pleaded guilty. GBO for 12 together. The victim woke up as the He lacked months. offender pushed her onto her left side genuine and inserted his penis into her vagina. remorse and The victim asked “what are you doing?” insight into his and the offender responded “just relax”. offending. He The offender continued to engage in disclosed penile-vaginal sexual intercourse with problematic the victim for about 10-15 minutes until alcohol use. he ejaculated.

DPP v Charges: 4x sexual intercourse Guilty plea Count 1 (sexual Aghahosseini without consent (discount of intercourse [2024] ACTSC 2x acts of indecency 15% to 20% without consent): applied) two years and six Objective Circumstances Subjective Sentence Circumstances imposed 237 (McCallum 4x further dishonesty/personal months CJ) violence offences The offender imprisonment The victim (19) and offender (37) met on was 39 years a dating app. The offender messaged old had limited Count 2 (sexual the victim offering money to meet up in supports in intercourse person and watch the victim undress. Australia and without consent): After meeting up, the offender kissed had been two years and six and bit the victim’s neck and nipples. The employed months victim audibly protested. The offender sporadically. He imprisonment penetrated the victim’s anus with his had an illicit finger and penis. The offender then substance Count 3 (sexual forced the offender to engage in oral issue. Offender intercourse intercourse. Later, after the victim and also sentenced without consent): offender left to obtain funds to pay the for theft, robbery two years and six victim, they returned to the and assault. months accommodation and the offender again imprisonment anally penetrated the victim. The offender again forced the victim to Count 4 (sexual perform oral sex. intercourse without consent): two years and six months imprisonment

Sexual offence sentences partially concurrent and totalling four years.

Total sentence for all offences of six years.

Total non-parole period of four years.

DPP v Mack Charges: 2x counts of sexual Guilty plea Threatening to [2024] ACTSC intercourse without consent (discount of distribute images: 227 (McCallum 1x count of threatening to distribute 15% applied) five months CJ) intimate images imprisonment The offender and victim met a bar. Later The offender in the evening, they crossed the road to was 19 years of Sexual intercourse an alleyway and carpark. The offender age at the time without consent: asked the victim if she wanted to have of offending and one year and eight sex. She said she did not. They kissed had a substance months and the offender digitally penetrated the use disorder. imprisonment victim’s vagina, which was consensual, but filmed the act, which was non- Sexual intercourse consensual. The offender told the victim without consent: to sit on a trolley and wrote several two years and one words on exposed parts of her body month including on her breasts and vulva. The imprisonment. offender took several photos and videos of the victim without her consent. The All sentences offender forced the victim to perform oral concurrent. sex. They engaged in consensual penile-vaginal sex before the offender removed Objective Circumstances Subjective Sentence Circumstances imposed the condom. The victim told him she Non-parole period would not have intercourse without a of two years. condom. The offender proceeded to have further, non-consensual penile-vaginal intercourse with her.

DPP v Rue Charges: Guilty plea Act of indecency [2023] ACTSC 1x Act of indecency without consent (discounts of without consent: 270 (Taylor J) 1x sexual intercourse without 5% and 15% Convicted and consent applied) sentenced to 19 The offender and the victim met in months October 2019. The offender was a friend Offender had imprisonment (six of the victim’s partner at the time. Prior to limited pro months cumulative the offending, the offender had social for sexual purchased drugs from the victim on a few connections, intercourse occasions. He had also previously was a significant without consent engaged in drug use at the victim’s drug user and sentence) residence. There was no prior romantic reported poor or sexual relationship between the mental health. Sexual intercourse offender and the victim. On the evening without consent: of the offending, the offender came over Convicted and to the victim’s house. They took drugs sentenced to 35 and the victim turned on the CCTV months camera above her bed as she had a “bad imprisonment. feeling”. The victim passed out at some stage. The offender spent approximately Total head 44 minutes touching the victim’s vaginal sentence of three area and legs, placing his fingers inside years and five her underwear and rubbing and touching months. her breasts stopping only when she appeared to stir or regain consciousness Non parole period (Rolled up count, act of indecency of one year and 10 without consent). The offender then months. removed the victim’s pants and began to perform cunnilingus, digitally penetrated her vagina and then penetrated her vagina with his penis (rolled up count, sexual intercourse without consent).

Okwechime v Charges: 1 x sexual intercourse No guilty plea Sentence imposed The Queen without consent (oral sex) by Norrish AJ, [2023] ACTCA 1 x sexual intercourse without The offender upheld by the 25 (McCallum consent (penile-vaginal) was 33 years of Court of Appeal. CJ, Mossop and 1 x act endangering health (Choke) age and had a Charlesworth The victim and the offender and his substantial First offence: JJ) friends arrived at a nightclub together. criminal history Convicted and The victim had been in company with the of dishonesty, sentenced to two offender and his friends for driving and drug years and six approximately two hours. The victim and offences. At the months the offender left the nightclub together at time of the imprisonment. about 4:15 am and arrived at the offences, the offender’s apartment for a party. On offender was Second offence: arrival, the victim realised there was not subject to parole Convicted and going to be a party so she asked the for NSW sentenced to four offender if she could charge her phone dishonesty and years and then go home. Whilst inside the possession imprisonment. apartment, the offender began kissing offences. the victim and the victim told him to stop. Choking: The victim initially consented to oral sex Convicted and Objective Circumstances Subjective Sentence Circumstances imposed and digital penetration but after some sentenced to one time the victim refused consent and tried year and three to wriggle away but could not. [48] The months victim was dragged into a room and the imprisonment. offender performed penile-vaginal sex. Choking sentence The victim cried saying: “Please stop concurrent to this. I want to go home. I want to go to sentence for first my dad” at which point the offender offence. grabbed her neck and started choking her. The offender was found guilty at trial Total sentence of on three counts. He appealed his five years and conviction on these counts and appealed three months. his sentences for the penile-vaginal Non-parole period intercourse and choking counts. The of 3 years. appeal was dismissed.

DPP v Jones Charges: 1x sexual intercourse Found guilty Sexual intercourse (No 2) without consent after trial without consent: [2023] ACTSC 1x act of indecency without consent two years and six 99 (McCallum The offender and victim were work Twenty-seven- months CJ) colleagues and matched on Hinge, a year-old young Imprisonment. dating application. They had consensual man with intercourse once in June 2021. In July employment, Act of indecency: 2021, the victim confided in the offender social support, One year about a previous sexual assault. When no substance imprisonment (six they got to the victim’s house she told the issues and no months offender she had vaginal thrush and was criminal history. concurrent) in a “bit of pain” and did not wish to Poor attitude to engage in any sexual activity that night. offences. Had Non parole period The victim went to bed and the offender underlying of 15 months. joined her. The offender started feeling chronic mental all over the victim’s body and she said health nothing and lay still. The offender conditions and digitally penetrated the victim while he has been thought she was asleep. Offender was suicidal. found guilty at trial.

DPP v Charges: 1 x act of indecency without No guilty plea Act of indecency: Earle [2023] consent ICO for one year. ACTSC 93 1 x sexual intercourse without Offender was Sexual intercourse (McCallum CJ) consent person of good without consent: The offender and the victim met through character with ICO for two years a dating application. They had an strong pro- and six months. intimate romantic relationship and when social ICOs partially that ended they remained friends. The influences. cumulative. victim contacted the offender seeking Relatively young 300 hours of prohibited drugs and invited him to her man without any community service house and “stay over”. The victim went criminal history. and 20 hours of to bed and fell asleep. She woke up to Raised in a counselling. the offender rubbing her clitoris with his loving and fingers. The offender digitally penetrated supportive the victim’s vagina. The victim alleged family and holds that further digital penetration and strong cunnilingus occurred, which were the relationships acts charged as counts 2 and 3. The jury with friends, returned verdicts of not guilty for those family and counts. The offender then inserted his colleagues. penis into the victim’s vagina with force Strong without her consent. The victim said Objective Circumstances Subjective Sentence Circumstances imposed “wait, wait, wait” and the offender prospects of immediately stopped and asked if she rehabilitation. was okay. The victim said he had taken her by surprise and he laughed and apologised.

R v Finau (No 2) Charges: 1 x sexual intercourse Found guilty Two years and six [2020] ACTSC without consent after trial. months’ 193 (Murrell CJ) The offender and victim were work imprisonment. colleagues. They met in Civic and The offender attended several night clubs. They had no criminal Suspended after 9 shared a taxi to the victim’s residence history, months on with the intention that the offender would otherwise entering a good continue in the taxi to his own residence. impeccable behaviour order. He asked if he could come into her character. apartment for water and to use the toilet Stable, loving before ordering himself another taxi. She upbringing. agreed. In her apartment, the victim Positive changed into sleeping attire. She character returned to the living room where she references. found the offender lying on the sofa bed Offending in his underwear. She asked him to considered out dress. He began to put the pants on but of character. directed her attention to the fact he had an erection. He pulled her down to kiss her, but she resisted. The offender grabbed the victim and pinned her down to the sofa. He tried to prise her legs open while she resisted. She repeatedly said words to the effect of, “Get off me. This is not happening. Stop it” and “No, stop, I don't want to have sex. I don't want you to do this”. She resisted, pushing against his windpipe and slapping him. The accused became angry and said, “I want this, I'm here”. When she objected, he covered her mouth with his hand, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The victim hit him in the face. He struck her cheekbone and she froze. The offender engaged in penile-vaginal penetration for “less than a minute”. The offender did not use a condom.

R v Lindsay Charge: Guilty plea Sentence imposed [2020] 1 x sexual intercourse without (discount of by Elkaim J, ACTCA 25 consent 20% applied) upheld by the (Murrell CJ, The offender and the victim had been Court of Appeal: Mossop J, staying in shared accommodation at a The offender Crowe AJ) hostel. The offender asked the victim for had a lengthy Two years a kiss and to massage her shoulders. criminal record imprisonment. She told him to go away. He then and serious Non-parole period straddled the victim while she was on her mental health of 17 months. back and attempted to pull down her top issues. There and bra. She tried to push him away and was a causal made it clear that his actions were connection unwelcome. The respondent grabbed between the Objective Circumstances Subjective Sentence Circumstances imposed the victim by the throat and pushed her mental condition down into the bed. The victim was fearful and the and said to the respondent, “if I do this, offending you won’t hurt me?” to which the conduct, respondent responded that he would not. reducing the The offender engaged in penile-vaginal offender’s moral sexual intercourse with the victim. The culpability and Crown appealed the sentence imposed, the objective arguing it was manifestly inadequate. seriousness of The appeal was dismissed. the offence.

R v Aroub Charges: 1 x act of indecency Found guilty Act of indecency: [2017] 1 x sexual intercourse without after trial Convicted and ACTSC 187 consent sentenced to two (Murrell CJ) A jury found the offender guilty of offence At the time of months of sexual intercourse without consent. the offence, the imprisonment. The victim accompanied a friend to Civic. offender was 25 Sexual Intercourse During the evening, the friends years old. He without consent: consumed alcohol at several nightclubs. had two years They met the offender. In the early hours experienced a imprisonment, of the morning the victim, her friend, the traumatic suspended after offender and others went to the upbringing and six months upon offender’s home. Eventually, the victim suffered from entering into a went to a spare room where she lay depression. He GBO. down and fell asleep. The victim awoke had a criminal to find the offender digitally penetrating history for less her. He had unzipped her dress and was serious matters kissing her back between the shoulder and no prior blades. The victim pushed the offender’s history of hand away. He smiled and told her to committing “relax”. She told the offender that she sexual offences. needed to go to the bathroom. She attempted to do so but was unable to He had been on open the door as it had no handle. The conditional offender assisted her to open the door liberty at the and she left the room. The victim found time of the her friend and told her what had offence. occurred. The offender was found guilty by a jury.

R v Agresti Charges: Found guilty 2 years, 4 months’ [2016] 1 x sexual intercourse without after trial imprisonment, 18 ACTSC 9 consent The offender months of which (Murrell CJ); The victim and offender were ADFA was 18 years at suspended on Agresti v The cadets. They went out with other cadets the time of the entering a good Queen [2017] to Civic. The victim consumed a offence and was behaviour order. ACTCA 20; 13 significant quantity of alcohol and raised in a ACTLR 1 became very intoxicated. Later in the supportive evening, the offender and the victim met family. up, and took a taxi back to ADFA. On reaching her room, the victim lay on her bed. The victim was passing in and out of consciousness. At one stage she awoke to find the offender engaging in penile-vaginal sexual intercourse. The offender left the victim's room. Offender gave evidence at trial said that, at the time, he believed the sexual intercourse was consensual. The offender appealed Objective Circumstances Subjective Sentence Circumstances imposed his convictions. The appeal was upheld on the following grounds: the direction to the jury on whether the complainant's consent was caused by alcohol was erroneous; the direction on consent and unconsciousness was inadequate; and the direction on the paths to criminal liability based on unconsciousness and consent. The conviction and sentence of the offender were set aside. A new trial was ordered. At the further trial, the jury was hung.