DPP v Thornton

1. On 15 September 2025, the offender was found guilty after trial by a jury of twelve of the following offences relating to two complainants: Count 1: Grooming, which carries a maximum penalty of 7 years’ imprisonment: s 66(1)(b) of the Crimes Act 1900 (ACT) (CAN 8103/2023); Count 2: Act of indecency on a young person, which carries a maximum penalty of 10 years’ imprisonment: s 61(3) of the Crimes Act (SC CAN 2/2024); Counts 3 and 5: Act of indecency without consent, which carry a maximum penalty of 7 years’ imprisonment: s 60(1) of the Crimes Act (CAN 6997/2023, SC CAN 3/2024); Count 7: Choke, suffocate, strangle, which carries a maximum penalty of 5 years’ imprisonment: s 28(2) of the Crimes Act (CAN 7001/2023); Counts 6, 8 and 11: Attempt sexual intercourse without consent, which carries a maximum penalty of 12 years’ imprisonment: s 54(1) of the Crimes Act (CAN 6999/2023, CAN 7002/2023, SC CAN 5/2024); Counts 9, 10 and 13: Sexual intercourse without consent, which carries a maximum penalty of 12 years’ imprisonment: s 54(1) of the Crimes Act (SC CAN 4/2024, CAN 7004/2023, CAN 7006/2023).

2. The jury found the offender not guilty of the following offences: Count 4: Act of indecency without consent (CAN 6998/2023); Count 12: Sexual intercourse without consent (CAN 7005/2023); Count 14: Use carriage service for child abuse material (SC CAN 152/2024).

3. The offender is now to be sentenced for the offences for which he was found guilty by the jury. In addition to these offences, I must determine whether a common assault transfer charge (CAN 7000/2023) has been proved beyond reasonable doubt, and, if so, sentence the offender also for this charge.

The offences

4. At the time of the offences, the offender was employed by the company which operates the Canberra Reptile Zoo in Nicholls (the Zoo), and a retail store in Kambah (the reptile shop). The offender worked at both locations, and at times would work independently at the reptile shop. The offender’s work included supervision of other staff and volunteers at times.

Offences relating to the first complainant [Tatiana Kendal]

5. [Ms Kendal] and her family had been involved in the Canberra reptile community from when [Ms Kendal] was young. [Ms Kendal] first met the offender through the reptile community when she was approximately 7 or 8 years old. [Ms Kendal] gave evidence that at this time, the offender would let her hold his reptiles and was nice to her.

6. [Ms Kendal] stated that the offender “didn’t really start giving [her] much attention until [she] was 12 or 13”. In 2020, when [Ms Kendal] was 13 and the offender was 20 or 21 years old, she and the offender added each other on the messaging app Snapchat. [Ms Kendal] said that they “talked for a little bit, but I don’t remember anything being weird”. During this time, the offender asked [Ms Kendal] if she wanted to come and “hang with him” at the reptile shop when he was working. [Ms Kendal] agreed. After this time, she would often visit the offender at the reptile shop.

7. [Ms Kendal] gave evidence that her conversations with the offender became more sexual over time. The offender would ask her if she “was a virgin” or if she had “tried anything with a guy”. The offender also sent [Ms Kendal] messages of a sexual nature, including asking [Ms Kendal] if she would have sex with him. (Count 1: Grooming). On the prosecution case, this count encompassed conduct from when the offender added [Ms Kendal] on Snapchat through to 1 October 2020. The jury found the offender guilty of this count.

8. On one occasion at the reptile shop, [Ms Kendal] described an incident where the offender had come up behind her as she was leaving the shop. The offender touched [Ms Kendal]’s bottom, hugged her “tightly” from behind and pressed his arms on her breasts. [Ms Kendal] said that the offender “was pressed against me so there was, like, no gap”. (Count 2: act of indecency on a young person). This was one of the last times [Ms Kendal] visited the reptile shop. The jury found the offender guilty of this count.

9. [Ms Kendal] also gave evidence that when she had returned home that day, the offender had pressured her into sending a nude photograph. [Ms Kendal] said she had sent him a picture of her bare bottom while wearing only G-string underwear. (Count 14: Use carriage service for child abuse material). The jury found the offender not guilty of this count.

10. Following this incident, the offender arranged with [Ms Kendal]’s mother to take [Ms Kendal] to the Zoo for a day, on 1 October 2020. The offender messaged [Ms Kendal] in the lead up to 1 October 2020, saying that he would “like to have sex with [her]” on the day. [Ms Kendal] became concerned and planned to feign illness on the day as she “didn’t want to go anymore”. However, on the morning of 1 October 2020, the offender told [Ms Kendal]’s mother that he was no longer able to take her to the Zoo. Around this time, the offender also blocked [Ms Kendal] on all social media platforms after the offender’s then-girlfriend confronted him about the nature of his relationship with [Ms Kendal].

Offences relating to the second complainant [Michala Clarke]

11. [Ms Clarke] commenced work as a junior volunteer at the Zoo in September 2020. She met the offender at the Zoo around this time.

12. The offending against [Ms Clarke] occurred on two separate occasions, first, over the period 11-12 December 2021 and second on 7 July 2023.

The December 2021 offending

13. On 11 December 2021, the offender, [Ms Clarke] and another employee of the zoo who was friends with the offender had a sleepover at the Zoo. [Ms Clarke] was 16 years old at the time. The offender was 22 years old. The offender, [Ms Clarke] and the other employee all drank alcohol that night.

14. Early in the morning on 12 December 2021, at around 2am, the group decided to go to sleep. The offender had a “elevated swag” set up to sleep in. [Ms Clarke] had brought a sleeping bag that she had not set up yet.

15. [Ms Clarke] had been sitting to the left of the offender’s swag. When [Ms Clarke] got up to set up her sleeping bag, the offender grabbed her by the waist and said, “You can sleep in here tonight”, referring to his own swag. [Ms Clarke] was tired, felt “heavily intoxicated” and explained that she “just didn’t want to fight him”. She lay down in the swag.

16. At some point, the offender kissed [Ms Clarke] on the lips while they were in the swag. [Ms Clarke] gave evidence that she may have consented to this act, as she “genuinely [didn’t] remember if [she] said yes to that”.

17. During the night, [Ms Clarke] needed a drink of water, so the offender took [Ms Clarke] to the kitchen to get water. The offender then picked [Ms Clarke] up, placed her on the kitchen bench and started kissing her. [Ms Clarke] said “No, I don’t want this” and was trying to push the offender away. The offender “wouldn’t listen” and kept kissing [Ms Clarke], as well as touching her hips, waist and thighs. (Count 3: Act of indecency without consent). The jury found the offender guilty of this count.

18. [Ms Clarke] also gave evidence that the offender kissed her again without consent while they were walking back from the kitchen to the sleeping area. (Count 4: Act of indecency without consent). The jury found the offender not guilty of this count.

19. The offender and [Ms Clarke] then returned to the swag. The offender rolled [Ms Clarke] on top of him. [Ms Clarke] said words to the effect of, “I don’t – I’m tired. Good night”. [Ms Clarke] gave evidence that the offender “probably” tried to kiss her again, but that she did not remember. (Count 5: Act of indecency without consent) The jury found the offender guilty of this count. [Ms Clarke] then rolled off the offender, and eventually fell asleep.

The July 2023 offending

20. On 7 July 2023, the offender was working, and [Ms Clarke] was volunteering, at the Zoo. [Ms Clarke] was 17 years old and the offender was 24 years old.

21. During the day, the offender and [Ms Clarke] went to a shed on site at the Zoo to get items to put into the shop at the Zoo. The offender sent [Ms Clarke] a Snapchat with words to the effect of “I want to have sex with you in the shed”. [Ms Clarke] tried to dismiss the offender’s advances, replying with words to the effect of “it’s too cold for that”.

22. At around 5:15pm, the offender, [Ms Clarke] and other workers at the zoo were preparing to leave for the day. The offender went to move the Zoo’s work van in the Zoo carpark. [Ms Clarke] went to her car in the carpark, and sat in her car with it running for some time to warm it up.

23. After the offender had moved the Zoo van, and while [Ms Clarke] was sitting in her car, the offender messaged [Ms Clarke] between around 8 and 20 times. The messages sent by the offender included words to the effect of, “Get in the van”, “I really want you to come in the van”, “The van door is open. Come in” and “There’s no need to be nervous”. [Ms Clarke] was overwhelmed, and decided to go to the offender in person to tell him to stop messaging her.

24. When [Ms Clarke] arrived at the van, the van door was open. The offender picked her up and sat her inside the van. [Ms Clarke] said words to the effect of “This isn’t a good idea. I don’t think that this should happen”. The offender said words to the effect of “It’s okay” and “I know what I’m doing”.

25. The offender closed the van door and sat down in front of [Ms Clarke]. The offender unbuckled his pants and took out his penis and attempted to force [Ms Clarke] to perform oral sex on him. The offender repeatedly tried to push her head towards his penis. [Ms Clarke] repeatedly refused and resisted. (Count 6 – Attempt sexual intercourse without consent). The jury found the offender guilty of this count.

26. At this stage, the offender had moved [Ms Clarke] so that she was lying on the floor of the van. The offender then sat [Ms Clarke] up and said words to the effect of “we don’t need lubricant”, before then pushing [Ms Clarke] back down. (Transfer Charge: Common Assault) The offender kneeled over [Ms Clarke] and held her legs in place. He placed one hand on [Ms Clarke]’s neck, applying pressure for approximately 5 – 10 seconds. (Count 7 – Choke, suffocate or strangle). The jury found the offender guilty of this charge.

27. At this point, [Ms Clarke] “gave up”, “stopped fighting it” and “stopped talking”. She said that she “knew what was going to happen, and [she] knew she couldn’t do anything”. The offender let go of [Ms Clarke]’s neck, pulled [Ms Clarke]’s pants down a bit, and tried to insert his penis into her vagina. The offender could not insert his penis and said something about “the angle not being right”. (Count 8 – Attempt sexual intercourse without consent). During this time, the offender digitally penetrated [Ms Clarke]’s vagina without her consent. (Count 9 – Sexual intercourse without consent). The jury found the offender guilty of both charges, that is count 8 and count 9.

28. The offender then moved [Ms Clarke] so she was “half lying” against a trolley in the van. He attempted to fully remove [Ms Clarke]’s pants, but he could not do so, so he directed [Ms Clarke] to remove them. [Ms Clarke] had “shut down”, and thought that if she co-operated, she could go home more quickly. [Ms Clarke] removed the right leg of her pants. The offender then digitally penetrated [Ms Clarke]’s vagina without her consent. (Count 10 – Sexual intercourse without consent). The jury found the offender guilty of this charge.

29. The offender again attempted to insert his penis into [Ms Clarke]’s vagina, but could not. (Count 11 – Attempt sexual intercourse without consent). The jury found the offender guilty of this charge. The offender then grabbed [Ms Clarke] by her thighs and hips and pulled [Ms Clarke] closer. The offender moved [Ms Clarke]’s legs into “weird” positions and made comments about how flexible she was.

30. [Ms Clarke] gave evidence that the offender then digitally penetrated her vagina without consent (Count 12 – Attempt sexual intercourse without consent). The jury found the offender not guilty of this charge.

31. Following this, the offender inserted his penis into [Ms Clarke]’s vagina and engaged in penile-vaginal sexual intercourse with her for about 30 seconds. [Ms Clarke] was on a trolley in the van at this time. [Ms Clarke] gave evidence that this “really hurt”, and that the offender was not gentle or slow. The offender was not wearing a condom. He pulled out his penis and ejaculated onto [Ms Clarke]’s school hoodie. (Count 13 – Sexual intercourse without consent). The jury found the offender guilty of this count.

32. The offender then pulled up his pants and opened the van door. [Ms Clarke] gave evidence that the offender “didn’t care about [her] at all”. [Ms Clarke] then left the van, walked back to her car and drove home. She was extremely distressed at this time.

The Victim Impact Statements

33. Victim Impact Statements were provided by [Ms Kendal], [Ms Kendal]’s mother, [Ms Clarke], [Ms Clarke]’s parents, and [the Director of the company which operates the Zoo and the reptile shop].

34. In her Victim Impact Statement, [Ms Kendal] said that as a result of the offender’s actions, her “favourite place became a place of fear”. She described how she struggled with anger, panic attacks and depression in the aftermath of the offending. She described how some days, she struggled with “sadness so overpowering [she] can’t function all [she] can do is lay in bed and cry”.

35. In her Victim Impact Statement, [Ms Kendal]’s mother told that Court that the offender’s actions had “caused so much heartache and pain” for [Ms Kendal] and her family. She said that the offender had “took what was left of [Ms Kendal]’s childhood”, and that [Ms Kendal]’s teenage years have been “full of worry, panic, emptiness, self doubt, confusion, rumination, bad sleep, bad memories, trauma and court”.

36. In her Victim Impact Statement, [Ms Clarke] described what had happened to her as “the most scary, traumatising, dehumanising experience of [her] whole life”. She said that her “confidence and self worth was shattered”, and that her “childhood and innocence ended that day”. She described her difficulties attending school and being around friends, explaining that she “couldn’t be the girl I was before”. She shared an affirmation that she repeated to herself during these times: “I hope it ends with me”.

37. [Ms Clarke]’s parents also described the impact of the offending on themselves and their daughter in their own Victim Impact Statements. [Ms Clarke]’s mother has said that [Ms Clarke]’s life “has been irreversibly derailed by this man’s despicable actions”. [Ms Clarke]’s father expressed his pain at “[n]ot being able to protect [his] daughter from the most vilest of acts”. He stated that the “things she missed out on in her growth of life is unfathomable, all because of [the offender’s] selfish actions”.

38. [Redacted]. In his victim impact statement, [the Director of the company] stated that the staff and volunteers of the company felt “betrayed”, and that “[w]hat was once a close, supportive work family has been clouded by suspicion and pain”. He described how the company has had to “work tirelessly” to rebuild trust in the community that was destroyed by the offender’s actions. [Redacted]. [The Director] stated that the offender’s actions “have left deep and lasting scars”, and “the damage caused cannot be undone”.

The offender’s subjective case

The offender’s background

39. The offender is currently 26 years old. He described his childhood as “normal” in the Pre- Sentence Report (PSR) and Intensive Corrections Order Assessment Report (ICOAR). The offender currently has a long-term partner, whom he has been with since 2019, and with whom he shares a 17-month old daughter.

40. The offender was diagnosed with learning disabilities in primary school. Despite these challenges, he was able to complete Year 12. He told the PSR author that he had been volunteering at the Zoo since he was 12 years old. He engaged in short-term retail employment prior to being employed with the Zoo when he was approximately 18 years old. The offender resigned from his employment around 3 years ago, after his arrest, and has been unemployed since that time.

41. The offender has a limited history of alcohol and drug use. He reported that between the ages of 18 to 23 he drank every night. He ceased drinking alcohol in compliance with his bail conditions, and advised the PSR author that he has not had a drink for almost three years. The offender also reported past issues with drugs, including being addicted to Xanax for less then a year when he was approximately 18 years old; and trying MDMA around the same time, which resulted in a hospitalisation. The offender currently has a prescription for medicinal cannabis.

The offender’s mental health

42. The offender has been diagnosed with attention deficit hyperactivity disorder (ADHD) and dyslexia. He has also been diagnosed with anxiety and depression following his arrest for the current offences. He also has a diagnosis of PTSD which has arisen since that time. He has informed the PSR author there had been a “rapid decline” in his mental health in the period following his arrest and conviction. He takes several medications, including medicinal cannabis, Catapres and Valium, to assist. In their character reference, the offender’s parents confirm the significant decline of the offender’s mental health in the period following his arrest, and report that the offender has been admitted to hospital for panic attacks and that he has also been suicidal at times. They are extremely concerned about the offender’s mental health and his vulnerability in custody.

43. There is also evidence before the Court that the offender has a diagnosis of Autism Spectrum Disorder (ASD). Specifically, the evidence in the trial included expert evidence given by Ms Tabitha Frew, psychologist and Dr Joey Le, psychiatrist. Both experts provided reports and gave oral evidence at the trial.

44. Ms Frew provided a Forensic Mental Health Assessment report in regard to the offender, dated 5 June 2025. In that report, Ms Frew diagnosed the offender with ASD Level Two, without intellectual or language impairment. She identified two “primary areas of disability” in regard to the offender’s ASD. These areas were theory of mind, or imagining how another person may be feeling; as well as social and emotional communication, both in relation to his own communication and understanding others’ communications. She stated that the offender’s communication behaviour was: … fitting for someone with autism that struggles to take in what someone is saying, and also their facial expression and how all their other cues are either lining up or not lining up with what they’re actually saying.

45. Ms Frew provided an addendum report dated 27 January 2026 for the sentencing proceedings. In this report, she additionally diagnosed the offender with Attention Deficit Hyperactivity Disorder (ADHD) and Post-Traumatic Stress Disorder (PTSD). Ms Frew noted that the offender’s ASD and ADHD were operative at the time of the offending, but the offender’s PTSD symptoms only “developed around the time of the trial”. Ms Frew expressed the opinion that the offender’s neurodevelopmental conditions offered a “partial and indirect” explanation of his offending, “particularly in relation to misinterpretation of consent-related cues and interpersonal boundaries”.

46. Dr Le also provided a psychiatric report for the trial proceedings, dated 22 August 2025. Dr Le did not personally assess the offender for his report. He reviewed Ms Frew’s report dated 5 June 2025, as well as the prosecution’s case statement, two transcripts of the offender’s interviews with police and a video recording of one of these interviews. Dr Le was of the opinion that the offender’s manner of communication with the police interviewer “did not suggest he was affected by difficulties in social communication that were consistent with a person affected by ASD (Level 2)”. In particular, Dr Le noted that the offender’s responses to police suggested that the offender understood the “necessary elements of consent”, and also understood that “another reasonable lay person” would interpret [Ms Clarke]’s behaviour as a refusal of consent. In Dr Le’s oral evidence, he expressed that it was “not clear to [him]” how Ms Frew had reached her diagnosis of ASD, and that in his opinion, the information before Ms Frew was “not sufficient” to either support or exclude such a diagnosis.

47. The prosecution submitted that “there is not enough evidence” for the Court to make a finding that the offender has ASD. I do not agree. Ms Frew had the benefit of a lengthy interview with the offender, whereas Dr Le was limited to viewing the offender’s interactions with police in his interview. Ms Frew’s diagnosis was also corroborated by the evidence of the offender’s partner, who testified that if she did not explicitly say something when communicating with the offender, he would have difficulty understanding non-verbal cues or non-verbal communication. I am satisfied on the balance of probabilities that the offender has ASD. It is not necessary for me to determine whether the appropriate classification is Level 2. The offender’s symptoms, rather than his ASD classification, are of greater significance.

48. Of course, it does not automatically follow that the offender’s sentence must be mitigated as a result of this finding. I will further consider the significance of this finding in the considerations below.

Sentencing Considerations

Objective seriousness of the offences

49. It is necessary to make separate findings concerning the objective seriousness of each of the offences. My findings as to these matters are set out below.

Count 1 (Grooming: [Ms Kendal])

50. The offending the subject of count 1 involved both in person and online contact, and was constituted by the offender sending [Ms Kendal] sexual messages on Snapchat and Instagram; asking [Ms Kendal] if she would have sex with him; inviting [Ms Kendal] to spend time alone with him at the Reptile Store and arranging for that to occur; talking to [Ms Kendal] about matters with sexual connotations; cornering [Ms Kendal] in the back of the store; touching her, and hugging her. (In respect of the latter matters, I will take care not to double count the conduct which is the subject of count 2).

51. The jury found the offender not guilty of count 14, which alleged that the offender had asked [Ms Kendal] for nude photographs on a particular occasion. In view of this verdict, the offender will be sentenced on the basis that his grooming of [Ms Kendal] did not involve the soliciting of nude photographs.

52. The motivation for the offending was the offender’s own sexual gratification. The offender, who was aged 20 or 21 years old, was considerably older than [Ms Kendal], who was 13 years old at the time of the offending. The offending was not premeditated, but as it involved a number of separate decisions to offend, the objective seriousness of the grooming offence is not greatly reduced by this matter.

53. The offence was particularised by the prosecution as spanning the period from when the offender added [Ms Kendal] on Snapchat to 1 October 2020. [Ms Kendal] was not sure exactly when the offender added her on Snapchat, but thought it might be in June or July. [Ms Kendal]’s mother thought that it was August to September. Bearing in mind that any aggravating matter must be established beyond reasonable doubt, I will sentence the offender on the basis that the grooming offence occurred over a period of some weeks, which is shorter than is often the case for offending of this nature.

54. The prosecution submitted that the offending was aggravated by the fact that the offender was in a position of authority over [Ms Kendal], as he was an employee and she was a volunteer.

55. The offender submitted that there was no evidence that [Ms Kendal] was actually a volunteer at the Zoo at any time prior to, or during the offending conduct. He submitted that in those circumstances, the offending the subject of counts 1 and 2 was not aggravated by [Ms Kendal] being under the authority of the offender.

56. I do not accept this submission. There was certainly evidence that [Ms Kendal] was never a formal volunteer. However, the offender was an employee of the Zoo, who had suggested that [Ms Kendal] spend time with him at the shop. He knew that she was keen to become a volunteer. The offender was much older than [Ms Kendal], and, during her time in the shop, he was able to direct her as to what she could do and whether she could remain. In those circumstances, I find that the offending against [Ms Kendal] was a breach of his authority. In so finding, I am conscious that the breach of authority arose in large part because of the age differential between the two. I will be careful not to double count this aspect of the offending when determining the sentence to be imposed for this count.

Count 2 (Act of Indecency: [Ms Kendal])

57. The conduct the subject of count 2 was touching [Ms Kendal]’s bottom, and hugging her from behind, putting both of his arms around her waist and pressing his arms so that they were “kind of” on her breasts.

58. Again, the motivation for the offending was for the offender’s own sexual gratification. The act of indecency offence was spontaneous, but occurred in a broader context of sexualised conduct toward [Ms Kendal]. The offending was relatively brief in duration, and only involved touching over the clothes. For the reasons outlined above, I also find that the offending was aggravated by the offender’s breach of his position of authority.

Counts 3 and 5 (Act of Indecency: [Ms Clarke])

59. Count 3 concerns the offender’s conduct in kissing [Ms Clarke] while touching her hips and thighs whilst she was on the kitchen counter at the Zoo. Count 5 concerns the offender’s conduct in rolling [Ms Clarke] on top of him in the swag, and attempting to kiss [Ms Clarke], despite her previous rejections.

60. When assessing the objective seriousness of counts 3 and 5, the offender submitted that I must take into account the jury’s verdict of not guilty in respect of count 4, which alleged that the offender kissed the [Ms Clarke] whilst they were walking from the kitchen back to the swags. Specifically, the offender submitted that if the jury accepted that there was a reasonable possibility that the offender had an honest belief that [Ms Clarke] consented to the kiss that was the subject of count 4, I should sentence him on the basis that he had an honest belief that the kiss that was the subject of count 3 was consensual, but that his belief in that regard was not reasonable, and hence that count 3 should be assessed as less objectively serious

61. It is clear from the overall verdicts that the jury found [Ms Clarke] to be a credible, and generally reliable, witness. I am myself satisfied beyond reasonable doubt of [Ms Clarke]’s credibility and reliability. There are two possible explanations for the jury’s verdict of not guilty on count 4. First, the jury may have had a reasonable doubt as to whether the offender honestly believed that [Ms Clarke] consented to the conduct the subject of count 4. Second, as [Ms Clarke]’s first description of the offending, she only spoke of two kisses, the jury may have had a reasonable doubt as to whether [Ms Clarke] was mistaken in her belief that the second kiss, that is on the walk back to the swags, occurred. It is not necessary for me to second guess the jury’s verdicts on this count.

62. Regardless of the jury’s conclusions concerning Count 4, [Ms Clarke]’s unequivocal evidence was that during the offending which was the subject of Count 3, she was pushing the offender away, and that she said “No, I don’t want this”. Ms Frew did not suggest that the offender’s ASD symptoms rendered him incapable of understanding such clear demonstrations of lack of consent. Further, the offender’s partner confirmed that he understands explicit communication relating to consent. If the offender did not understand from [Ms Clarke]’s verbal and physical protestations that she did not consent, it can only be that the offender was acting with extreme recklessness, and that he did not care whether [Ms Clarke] consented or not. Such a state of mind is no less objectively serious than acting with an actual knowledge that [Ms Clarke] was not consenting.

63. In respect of count 5, [Ms Clarke] was uncertain whether the offender kissed her, or only attempted to kiss her. In these circumstances, I cannot be satisfied beyond reasonable doubt that the offender kissed [Ms Clarke], and will sentence on the basis that the conduct the subject of count 5 was an attempt to kiss [Ms Clarke], having rolled her on top of him in the swag.

64. Although count 3 involved an actual kiss, whereas count 5 involved an attempted kiss, count 5 also involved the offender rolling [Ms Clarke] on top of him whilst in his swag without her consent. I assess each of these counts as being of roughly equivalent objective seriousness.

65. [Ms Clarke] had consumed alcohol at the time of the commission of both counts. The offender acknowledged that he had purchased the alcohol for [Ms Clarke] (on the offender’s account, when [Ms Clarke]’s credit card was declined). There was no dispute that the offender knew that [Ms Clarke] was a minor, and that she had consumed the alcohol which he purchased. The offender took advantage of the vulnerability that had been created by this alcohol consumption.

Count 7 (Choking: [Ms Clarke])

66. As outlined above, the conduct the subject of count 7 involved the offender placing one hand on [Ms Clarke]’s neck, applying pressure for approximately 5-10 seconds. There is no suggestion in the evidence that [Ms Clarke] consented to this conduct, nor any basis for the offender to belief she consented. I find that the offender knew that [Ms Clarke] did not consent to the offender’s acts. [Ms Clarke] did not sustain any physical injuries as a result of the choking.

Transfer charge common assault

67. As noted above, [Ms Clarke] gave evidence that, immediately prior to the offence of choking (Count 7), the offender forcefully pushed her down. The prosecution charged the pushing as a separate common assault, and the charge was transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). I am required to determine whether this charge has been established beyond reasonable doubt on the evidence that was adduced at trial.

68. Counsel for the offender submitted that on [Ms Clarke]’s evidence, the ‘pushing down’ should properly be regarded as part and parcel of the commission of Count 7, rather than an independent assault.

69. On a careful review of [Ms Clarke]’s evidence, I am satisfied beyond reasonable doubt that the pushing down was a separate act to the choke. In her Evidence in Chief Interview, [Ms Clarke] described being pushed down first. She then said “there was, at some point when he put me down, he did put his hands around my neck” (emphasis added). She was not cross-examined about this evidence.

70. Nonetheless, in view of the clear connection between the two acts and the short period of time between them, the sentence to be imposed for this transfer offence will be entirely concurrent with the sentence to be imposed for the offence of choking.

The sexual assault offences: Counts 6, 8, 9, 10, 11 and 13

71. I have set out the circumstances of the offences of attempted sexual intercourse without consent and sexual intercourse without consent above.

72. On behalf of the offender, it was submitted that the evidence as to the offender ignoring warnings or protests was limited to count 6, and that following this time, [Ms Clarke] was not protesting. In these circumstances, it was submitted that a finding should be made that the offender may have believed that [Ms Clarke] consented, but that any such belief was not reasonable.

73. I do not accept this submission. I do accept that an offender’s ASD may be highly relevant when determining knowledge of consent where a complainant’s trauma response is one of freezing or otherwise engaging with an offender. This is because an offender’s ASD may affect the offender’s capacity to interpret non-verbal communication, such as freezing, or facial expressions which might otherwise convey a lack of consent. However, offences of this nature cannot be assessed in isolation, or devoid of context.

74. Although [Ms Clarke]’s initial response in attending the van may have been misinterpreted by the offender, upon her arrival at the van [Ms Clarke] repeatedly refused and resisted when the offender attempted to force her to engage in oral intercourse with him. As outlined above, even taking into account his ASD, the offender also cannot have been under any misapprehension that [Ms Clarke] did not consent to him choking her without his consent. He also cannot have been under any misapprehension that [Ms Clarke] did not consent to oral sexual intercourse, Whilst [Ms Clarke] later froze, in circumstances where he had engaged in these forceful acts against [Ms Clarke]’s express verbal and physical resistance shortly beforehand, I do not accept that the offender had an honest belief as to [Ms Clarke]’s consent at the time of these acts. Further, as I have previously stated, if the offender did not understand from [Ms Clarke]’s verbal and physical protestations that she did not consent, it can only be that the offender was acting with extreme recklessness and that he did not care whether [Ms Clarke] consented or not. Again, I find that such a state of mind is no less objectively serious than acting with actual knowledge that [Ms Clarke] was not consenting.

75. There is no hierarchy of offences, and the offences involving digital penetration are not less serious for that reason alone. Digital penetration also involves an acute violation of a victim’s body. However, Count 13 involved penile vaginal intercourse without a condom. Although the offender ejaculated on [Ms Clarke]’s jumper, this act of penile vaginal penetration nonetheless involved an additional risk of sexually transmitted infections, as well as the risk of pregnancy, which was recognised by the offender: he sent [Ms Clarke] a text message asking her to let him know when it was “that time [of] the months [sic]” so he could be sure that she was “not pregnant”.

Absence of threats, violence, humiliation

76. The offender submitted that the offending against both [Ms Kendal] and [Ms Clarke] was less serious because it did not involve any violence (other than count 7), and did not involve threats, or additional humiliation. If any of these matters had present, then, subject to Pearce considerations (Pearce v The Queen [1998] HCA 57; 194 CLR 610), the offending would have been rendered more objectively serious. However, the absence of these matters does not mitigate the objective seriousness of the offending.

Breach of trust

77. I do not accept the prosecution submission that the offender was in a position of authority over [Ms Clarke]. Although [Ms Clarke] was a volunteer, and the offender was an employee, there was no evidence that the offender exercised authority over [Ms Clarke]. They were closer in age than [Ms Kendal] and the offender and [redacted]. However, as the offender conceded, an aggravating feature of all of the offending against [Ms Clarke] was the breach of trust in the context of a friendship between the offender and [Ms Clarke].

The offender’s moral culpability for the offences

78. As outlined above, I have accepted that the offender has ASD. However, as also outlined above, I have not accepted the offender’s contentions with respect to the effect of that condition on his state of mind. As noted above, I accept that a diagnosis of ASD may have the capacity to provide an explanation for offending where there has been a misunderstanding on the part of the offender: see, for example, DPP v Donnelly [2025] ACTSC 452 at [30].

79. That is not the case here. The evidence of the offender’s symptoms was that he is liable to misinterpret social cues and facial expressions. This condition does not explain or contextualise the offender’s decisions to sexually offend against [Ms Kendal], a thirteen year old girl, or to ignore the clear verbal and physical expressions of non-consent expressed by [Ms Clarke]. As the offender’s conversation with police demonstrated, the offender has a proper understanding of the need to obtain consent before engaging in any sexual act, and understood this at the time of the offences. I do not accept that the offender’s moral culpability is reduced by his ASD: see similarly Stein v R [2023] NSWCCA 324 at [46]-[47].

The relevance of the offender’s prior good character

80. Prior to the commission of the present offences, the offender had no prior convictions. His parents and his partner have also provided character references, in which they speak of the offender’s caring nature, and his love of his daughter. I accept that the offender was of good character prior to the commission of the offences. As the prosecution did not submit that the offender’s good character enabled him to commit the offences, s 34A of the Crimes (Sentencing) Act 2005 (ACT) does not apply.

81. However, it is important to understand that the offender’s good character does not, of itself, mitigate the sentence to be imposed. Rather, it is a matter which is relevant to the determination of the weight to be given to each of the purposes of sentence in s 7 of the Crimes (Sentencing) Act, which are addressed below.

Extra-curial punishment

82. The offender’s solicitor has provided an affidavit which annexes a number of social media screenshots of messages that have been sent to the offender concerning these proceedings. On behalf of the offender, it was contended that these messages constitute extra-curial punishment, which should be taken into account on sentence.

83. The offender’s counsel was careful to emphasise that her contention only related to the social media communications, and did not relate to the reporting of the proceedings by mainstream media. This concession was appropriate. There is no evidence that the media has engaged in anything other than responsible and accurate reporting of these proceedings.

84. I have carefully considered the social media messages. They are of a disturbing nature, they contain references to the offender’s child.

85. The prosecution submitted that I would not take these messages into account when determining the sentence to be imposed. I did not understand her to submit that the messages were appropriate, rather, as I understood her submission, it was that there was no evidence that these messages have had any adverse effect on the offender. I do not accept this submission. There is evidence that the offender has suffered PTSD following his arrest. The nature of these communications is necessarily such as to impact upon that PTSD. I will take these communications into account when determining the appropriate sentence to be imposed.

Determination

86. There is, appropriately, no dispute that the s 10 threshold is crossed. Imprisonment is the only appropriate sentence. As described above, the offending against each victim was serious. As eloquently described in their victim impact statements, the consequences of the offending for the victims, and their families, has been profound. As the victim impact statement of Mr Child further testifies, the harm occasioned by the offending has spread throughout the community, causing financial and reputational consequences for his business. There is a strong need for the sentence imposed to reflect the need for punishment of the offender, to denounce the offending, and to recognise the widespread and profound harm that the offender’s conduct has caused.

87. As outlined above, I do not accept that the offender’s moral culpability is reduced by reason of his ASD. I do accept that his experience of custody will be rendered more onerous by reason of this condition, and his other mental health issues. As outlined above, I have taken into account the impact of the social media communications on the offender’s mental health. I also accept that a sentence of imprisonment will cause hardship to the offender’s partner and their child. I will take into account each of these matters when determining the length of the sentence to be imposed.

88. The offender is not remorseful, and has little insight into his offending. However, he was of prior good character and has been engaging with treatment with MensLink and has been compliant with his medication. The need for specific deterrence is reduced to some extent by these matters.

89. Some of the reports in the proceedings suggested that the offender may be at an above average risk of sexual or general re-offending. However, taking into account the offender’s prior good character, his commitment to his treatment, his supportive family, and the deterrent effects of these proceedings, and the sentence I am about to impose, I do not consider that the offender’s risk of reoffending is such as to give rise to a concern that the offender presents a significant ongoing risk to the community.

90. As the offender accepted, there must be a degree of accumulation to take account of the different offences, particularly as between the two victims and the two separate sets of offences against [Ms Clarke]. In view of the substantial overlap in criminality covered by the grooming offence and the act of indecency offence involving [Ms Kendal], the sentence to be imposed for Count 2 will be largely concurrent with the sentence imposed for Count 1. There will also be substantial concurrency as between Counts 3 and 5, which were part of the same course of conduct. For the same reason, the sentences for Counts 7-11 and 13 will also be largely concurrent, and the offences of attempted sexual intercourse without consent will be entirely concurrent with each other and partially concurrent with the offences of sexual intercourse without consent.

91. The overall sentence to be imposed will be one of imprisonment for five years and three months. An intensive correction order is not available for such a sentence.

92. The hardship which the offender, his partner and his young child, will suffer whilst the offender is in custody is a factor of particular relevance to the non-parole period to be imposed. The sentence to be imposed must also facilitate the offender’s rehabilitation. However, these matters must be also balanced against the need for denunciation, deterrence and recognition of the harm caused to the victims, their families, and the broader community. Balancing each of these matters, a non-parole period of three years and two months’ imprisonment is appropriate in all of the circumstances.

Orders

93. The orders of the Court are: (1) For Count 9, sexual intercourse without consent (SC CAN 4/2024), the offender is convicted and sentenced to 2 years’ imprisonment, commencing on 4 March 2026 and expiring on 3 March 2028. (2) For Count 10, sexual intercourse without consent (CAN 7004/2023), the offender is convicted and sentenced to 2 years’ imprisonment, commencing on 4 September 2026 and expiring on 3 September 2028. (3) For Count 13, sexual intercourse without consent (CAN 7006/2023), the offender is convicted and sentenced to 2 years’ imprisonment, commencing on 4 March 2027 and expiring on 3 March 2029. (4) For Count 7, choke, suffocate or strangle (CAN 7001/2023), the offender is convicted and sentenced to 1 year’s imprisonment, commencing on 4 September 2028 and expiring on 3 September 2029. (5) For the transfer charge of common assault (CAN 7000/2023), the offender is convicted and sentenced to 3 months’ imprisonment, commencing on 4 September 2028 and expiring on 3 December 2028. (6) For Count 6, attempt sexual intercourse without consent (CAN 6999/2023), the offender is convicted and sentenced to 1 year’s imprisonment, commencing on 4 March 2029 and expiring on 3 March 2030. (7) For Count 8, attempt sexual intercourse without consent (CAN 7002/2023), the offender is convicted and sentenced to 1 year’s imprisonment, commencing on 4 March 2029 and expiring on 3 March 2030. (8) For Count 11, attempt sexual intercourse without consent (SC CAN 5/2024), the offender is convicted and sentenced to 1 year’s imprisonment, commencing on 4 March 2029 and expiring on 3 March 2030. (9) For Count 3, act of indecency without consent (CAN 6997/2023), the offender is convicted and sentenced to 6 months’ imprisonment, commencing on 4 December 2029 and expiring on 3 June 2030. (10) For Count 5, act of indecency without consent (SC CAN 3/2024), the offender is convicted and sentenced to 6 months’ imprisonment, commencing on 4 March 2030 and expiring on 3 September 2030. (11) For Count 1, grooming (CAN 8103/2023), the offender is convicted and sentenced to 1 year’s imprisonment, commencing on 4 April 2030 and expiring on 3 April 2031. (12) For Count 2, act of indecency on a young person (SC CAN 2/2024), the offender is convicted and sentenced to 9 months’ imprisonment, commencing on 4 September 2030 and expiring on 3 June 2031. (13) The overall sentence will be a term of imprisonment for 5 years and 3 months, commencing on 4 March 2026 and expiring on 3 June 2031. (14) A non-parole period of 3 years and 2 months will be imposed, commencing on 4 March 2026 and expiring on 3 May 2029. I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker. Associate: Date: 12 March 2026