DPP v Umunakwe

1. The offender, Emmanuel Umunakwe, was tried before a jury of twelve from 15 July 2024 until 22 July 2024 for three counts of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (count 1 CC2023/1092; count 2 C2023/2900; and count 3 SCCAN2023/370).

2. On 22 July 2024, the jury returned a verdict of guilty for count 2, and not guilty for counts 1 and 3. The offender now comes before the Court to be sentenced for count 2.

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

Background

Findings of Fact

4. As the offender was found guilty by a jury, it is necessary for me to find the facts upon which he will be sentenced. These facts must be consistent with each of the jury’s verdicts: Cheung v R [2001] HCA 67; 209 CLR 1 at [14]. There is no requirement that I take the most lenient nor favourable view of the facts: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64] – [70] (French CJ, Bell, Gageler, Keane and Nettle JJ). I must be satisfied beyond reasonable doubt of any aggravating matter. I must be satisfied on the balance of probabilities of any mitigating matter: R v Olbrich [1999] HCA 54; 199 CLR 270.

5. In a case such as the present, where the jury found the offender guilty of one count, and not guilty of two other counts, I must be careful to sentence consistently with the jury’s verdicts: R v Storey [1998] 1 VR 359 at 366. To this end, I will firstly address the factual findings that were not the subject of dispute, before turning to the disputed factual findings.

Undisputed Facts

6. On the evening of 27 January 2023, the victim went to several nightclubs in Civic with two friends. The victim consumed a number drinks, including Smirnoff double black premixes, with her friends both before leaving for Civic and whilst she was at Civic.

7. On that evening, the offender was also out in Civic with several friends.

8. At approximately 10:30pm, the victim went into the Mooseheads nightclub. CCTV footage taken from Mooseheads records that the victim and the offender danced together and kissed several times over the course of the evening.

9. At 1:22am on 28 January 2023, the victim and her friend left the Mooseheads nightclub and entered the One22 nightclub. The offender was already at that nightclub when the victim arrived.

10. Whilst at the One22 nightclub, the offender and the victim went to the male bathroom together. The offender and the victim walked into the disabled stall together.

11. There was no dispute that the offender and the victim had sexual intercourse whilst they were in the stall. However, precisely the nature of that sexual intercourse was the subject of dispute at trial, and in the sentence proceedings. I will address this disputed aspect of the findings of fact below.

12. After leaving the stall, the victim ran from the nightclub and into the laneway near the Mooseheads nightclub. CCTV footage of the laneway taken at approximately 1:55am on 28 January 2023 shows the victim distraught and sobbing. The contrast been her carefree appearance in earlier CCTV footage, and her appearance at this time was pronounced. Various other witnesses, including friends of the victim and the General Manager of Mooseheads, also gave evidence of the victim’s acute distress at this time. When asked what had happened, the victim replied “he took me to the bathroom and I kept saying no”.

13. Police attended within a short period. The victim told police that she had been at the One22 nightclub, where she had met a guy, but that he had taken it “too far”. The victim described the offender to police. Police were able to identify the offender from the victim’s description. They approached the offender at approximately 2:21am.

14. An ambulance attended at 2:39am and took the victim and her friend to the Canberra Hospital, where swabs were taken from the victim. The offender’s DNA was found on a number of those swabs. Disputed Facts: What occurred in the toilet stall

15. The disputed facts concerned what occurred after the victim and the offender entered the disabled stall of the male bathroom at the One22 nightclub.

16. The victim gave evidence that there was another male in the disabled stall. She said that the offender told the male to get out, which the male did. The victim gave evidence that once they were in the stall, the offender locked the door. The offender then placed his hands on the victim’s shoulders and told her to “give him head”. She refused. The victim gave evidence that the offender then told her to get up against the wall, before thrusting his penis into the victim’s vagina. This conduct was alleged by the prosecution to constitute count 1 on the indictment (sexual intercourse without consent). The prosecution case was that the victim did not consent to this act, and the offender did not do or say anything prior to this act to ascertain whether the victim was consenting. The jury did not accept the prosecution case and found the offender not guilty of this count.

17. The victim gave evidence that the offender then turned her to face him and again asked that she perform oral sex upon him, placing his hand on her shoulder and pushing her down. The victim refused, saying “I’m not doing that”. The victim gave evidence that the offender then turned the victim back around and again inserted his penis into her vagina. The victim gave evidence that she did not consent to this intercourse, that she told the offender that it was hurting and to stop. She gave evidence that she tried to get away and began crying. The conduct of the offender, in penetrating the victim without her consent, constitutes count 2 on the indictment (sexual intercourse without consent). The jury found the offender guilty of this count.

18. The victim gave evidence that during the second instance of sexual intercourse, the offender inserted his penis into her anus without her consent. However, the victim was unsure about whether penetration actually occurred. She said “I think he may have put it in my arse at one point”, that this was “way more painful” and “a very different change”. This conduct was alleged to constitute count 3 on the indictment. The jury found the offender not guilty of this charge.

19. The victim gave evidence that she then used the toilet seat to push away, and that sexual intercourse ended at that point. The victim said that as she left, the offender appeared confused, and said “Where are you going? What’s happened?”

20. The offender did not give evidence in the trial.

21. As outlined above, the jury returned a verdict of guilty for count 2, and not guilty for counts 1 and 3.

22. With respect to count 3, the victim herself acknowledged in cross-examination that the pain she experienced may have been caused by the appellant’s penis touching her perianal area. A readily apparent explanation for the jury’s verdict of not guilty with respect to count 3 was that the jury may have had a doubt as to whether anal penetration in fact occurred: see further DPP v Umunakwe [2024] ACTSC 229. Such a verdict says nothing about the credibility or the reliability of the victim’s evidence.

23. The difference in verdicts between counts 1 and 2 are also readily explained. As outlined above, at the time of count 1, the victim had followed the offender into the disabled toilet stall. The offender asked her for oral sex, which she refused. The victim’s evidence was that she did not say anything further to him at that stage. The jury heard that the toilet stall was not well lit and the victim was facing away from the offender. The jury may have been prepared to give the offender the benefit of a reasonable doubt as to whether the offender knew that the victim was not consenting or was reckless as to whether the victim was not consenting at the time of this intercourse. The jury may also have been prepared to give the offender the benefit of a reasonable doubt, by finding that the accused’s actions (the earlier kissing, entering into the toilet stall, asking the victim for oral sex, and then asking the victim to turn around) amounted to a reasonable attempt to ascertain her consent.

24. In contrast to count 1, the victim’s evidence was that, during the course of count 2, she repeatedly told the accused to stop, she tried to get away and she was crying. In these circumstances, the jury may well have been satisfied that although the offender had an honest belief as to consent during count 1, he could not have had an honest belief as to her consent after she made her lack of consent apparent during the acts constituting count 2.

25. In the proceedings on sentence, there was a dispute between the prosecution and the offender as to whether the victim consented to the sexual intercourse which was the subject of count 1. I do not consider that I need to, or should, resolve this dispute. The offender is not to be sentenced for the conduct relating to count 1, for which he was found not guilty.

26. Counsel for the offender submitted that I would find that the offender had an honest, but unreasonable belief as to consent in respect of count 2. I do not agree. By their verdicts, the jury must have been satisfied beyond reasonable doubt that the victim was a credible and reliable witness in respect of the conduct which was the subject of count 2.

27. Like the jury, I was satisfied beyond reasonable doubt that the victim’s evidence in respect of count 2 was both honest and reliable. The victim’s evidence as to what occurred was supported by the evidence of her immediate complaint (in which she stated that she had been “raped” and that she “kept saying no”) and her extreme distress: see The King v Ryan Churchill (a pseudonym) [2025] HCA 1 at [25] and [27].

28. In so finding, I have borne in mind that aspects of the victim’s account of events that occurred earlier in the evening were inconsistent with CCTV footage that police obtained from the Mooseheads nightclub. For example, the victim recalled that her first interaction with the offender occurred at the bar at Mooseheads, where he kissed her with little warning. In fact, the CCTV footage reveals that after meeting at the bar at Mooseheads, the offender gave his phone to the victim, who returned it shortly after. They briefly kissed and continued to converse with their respective groups of friends. Further, the victim gave evidence that she did not interact with the offender between the kiss at Mooseheads bar, and just prior to entering the bathroom with him at One22. However, the CCTV footage shows that the victim and offender danced together and kissed several times over the course of the evening.

29. The victim was never shown the CCTV footage during the trial, and never had an opportunity to comment on those discrepancies. The events that occurred in the toilet stall were traumatic. The victim was immediately asked to explain what had happened in the stall, whereas she was not asked to recall what had happened earlier in the evening until her evidence in chief interview on 9 February 2023. It is understandable that her memory of the events in the toilet stall would have been more accurate than her memory of events occurring earlier in the evening.

30. As noted above, the victim gave evidence that during the commission of count 2, she told the offender to stop, saying words to the effect of “its hurting. Stop. This is not – just get off”. She said that she said this a few times, and that she tried to move away. The victim said that she was crying. The offender did not stop but instead “picked up the pace”. The victim agreed that it was dark and that music was playing in the nightclub. However, she said that “I believe I would have very clearly been heard and seen”. Given the account that was provided by the victim: that she was asking him to stop, crying, and was attempting to get away, the respondent must have been aware that she was not consenting.

31. Once the victim’s account is accepted as credible and reliable, it must follow that the offender knew that the victim was not consenting to intercourse from the moment that the victim told him to stop. Indeed, the only basis upon which counts 1 and 2 can be distinguished is that the victim made her lack of consent apparent to the offender in respect of the act that was the subject of count 2.

32. In these circumstances, I am satisfied beyond reasonable doubt that the victim did not consent to the sexual intercourse which was the subject of count 2, and that the offender knew that the victim did not consent.

33. In so finding, I have not overlooked the victim’s evidence that the offender appeared to be confused when she went to leave the toilet stall. In my view, the proper explanation for the offender’s confusion was that he was surprised by the victim’s sudden resistance, and the strength of her adverse response to the non-consensual sexual intercourse.

Subjective Circumstances

Personal background

34. The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR) dated 29 January 2025, an Intensive Correction Order Assessment Report (ICOAR) dated 29 January 2025 and a psychologist report of Dr Jenna Bollinger (Knightlamp Psychology) dated 10 December 2024.

35. In 2010, when the offender was 9 years old, he moved to Australia from Nigeria with his family for his father’s employment at the Nigerian Embassy in Canberra. The offender reported that Nigeria was an unsafe place to live. He said that children would often be taken from their families for ransom, the police were corrupt and armed robberies were common.

36. The offender reported that his life in Australia was “a lot better”, and that he had made friends. However, the offender also reported experiencing racism from students and teachers.

37. The offender’s parents divorced in 2020. The offender reported that he had witnessed some yelling, arguing and physical violence. This escalated during his High School years. The offender reported that his parents would direct their anger and aggression towards him, and would “go off at [him] for the smallest thing” such as leaving a light on. When the offender’s parents decided to separate, they told him he was required to choose which of his parents to live with. The offender instead moved in with a friend, where he was not required to pay rent.

38. The offender reported having minimal contact with his father, and some contact with his mother since that time. The offender said that his relationship with both was improving.

39. The offender completed his Year 12 Certificate and then pursued full-time employment. He has since worked in various roles, including as a labourer, car detailer, yard hand, casual tyre fitter and most recently with a local beverage sales company in the deliveries section.

40. The offender is currently living with his father, and proposed to reside with his father if a non-custodial sentence is imposed. A Home Visit Assessment, which was completed for the purposes of the PSR, revealed that whilst the offender’s father’s apartment was cluttered, the offender’s room was clean and tidy.

41. The offender reported being “scared off relationships” since this incident and said that he struggled to socialise due to his bail conditions.

Substance Use

42. The offender began using alcohol during his early teenage years, and at 16, was hospitalised due to excessive use. Service records accessed by the PSR author revealed that the offender had previously acknowledged an abnormal increase in his use following his parents’ divorce. The offender reported that his last use of alcohol was over 12 months ago.

43. The offender reported a problematic history of illicit substance use. He began using cannabis in his teenage years, which progressed to weekly use of around $30 a week of cannabis. During his PSR interview, the offender claimed he had stopped his weekly consumption of cannabis over three months previously, but this was contradicted by his urinalysis test dated 21 January 2025. The offender reported that he had recently begun using cannabis more frequently to help him sleep.

44. The offender also reported experimental use of Methylenedioxymethamphetamine (MDMA) during his Year 11 and 12 years of school. He claimed that he had only consumed MDMA approximately six times with consumption of 0.2 grams per session, with his last reported consumption being over a year ago. The offender also reported using cocaine sporadically in social settings from 18 years of age until a few months ago.

45. The offender reported he had engaged in Alcohol and Other Drugs related programs. The offender’s responses to the Drug Use Questionnaire, administered by Dr Bollinger, indicate that he currently has a low level of problematic drug use. Dr Bollinger considered that this would be best served by psychoeducation.

46. The offender also provided two letters from ACT Directions, which outlined his participation in SMART Recovery sessions to deal with his ongoing substance use. The letters noted the offender engaged in further counselling on 31 January 2025, and had an additional counselling appointment on 7 February 2025.

Mental and physical health

47. The PSR author reported that the offender expressed a desire to engage with a mental health professional for anxiety and depression-related concerns.

48. When speaking to Dr Bollinger on 6 August 2021, the offender reported that when his parents separated, he experienced a “dark” time and had some thoughts of suicide, but thought it would be “traumatising” to be diagnosed.

49. When Dr Bollinger examined the offender again on 9 December 2024, the offender informed him that he had moved away from where his previous psychologist (Mr O’Donohue) worked, but that had recently obtained a mental health care plan and had an appointment to see a psychologist at Insight Psychology.

50. The offender reported that he had been hospitalised with heart issues as a result of stress. He said that other manifestations of his anxiety and stress included psoriasis and hair loss. The offender also reported to Dr Bollinger that he was concerned about being deported to Nigeria, and that he had anxiety about going out in public, feeling “worthless” and having suicidal thoughts.

51. Dr Bollinger expressed the opinion that the offender met the DSM-V criteria for post-traumatic stress disorder (PTSD) and social anxiety disorder. The offender’s responses to the Depression, Anxiety, and Stress Scale indicated moderate levels of depression, severe levels of anxiety and normal levels of stress. Dr Bollinger did not consider that the offender’s ability to exercise appropriate judgment was impaired at the time of the offending (other than by the consumption of alcohol) and did not consider that there was any link between the offender’s mental health and the commission of the offence. Dr Bollinger assessed the offender’s risk of re-offending as low.

Criminal History

52. The offender’s criminal history includes offences committed on 27 September 2020, when the offender was 19 years of age. The offender was contacted by a friend to attend a planned fight “in case things just went south”. The subsequent fight involved 10 young people, many of whom were underage, and tragically resulted in the death of an 18-year-old man. The offender was not involved in the fight from the beginning, but later used a rake to smash a car. In September 2021, the offender was convicted and sentenced for the following offences by the Chief Magistrate: (a) Joint commission common assault (sentenced to a good behaviour order of 12 months with supervision); (b) Joint commission damage property (sentenced to a good behaviour order of 18 months with supervision); (c) Affray with five or more people present (sentenced to a good behaviour of 12 months with supervision).

53. The good behaviour orders were each ordered concurrently. The offending was subject to the good behaviour order for the offence of joint commission damage property at the time of the present offending.

54. The PSR states that the offender has been known to ACT Corrective Services since 4 December 2020, through the supervision of a bail order. He breached this order on 30 June 2021 when he returned a positive result for cannabis after a urinalysis test.

Pre-Sentence Report and Intensive Correction Order Assessment Report

55. The PSR author noted that the offender has stable accommodation, family support, financial circumstances and employment. His risk of sexual reoffending was assessed as above average. The offender found to be not suitable for an Intensive Correction Order (ICO) due to his degree of dependence on a controlled drug.

Victim Impact statement

56. In her victim impact statement, the victim described the far-reaching effect that the offender’s actions have had upon her life. She explained that she has become paranoid and anxious when leaving the house. She experiences sleepless nights and has flashbacks. The victim’s fear of the memory of the moment of the offence is “overwhelming and inescapable”. She described how “simple things in [her] everyday life are now a challenge for [her]”.

57. The victim described how she now feels alone, isolated, and ashamed. She finds it hard to open up and trust her emotions. She explained that she is “no longer the same person”, and feels “as if [her] identity had been taken away”. She is no longer able to enjoy things she once loved and enjoyed. The victim described how the trauma that she suffers has impacted upon her relationships with friends and family, as struggles to trust or to open up and share her emotions.

Sentencing Considerations

Objective seriousness of the offence

58. In R v Palmer [2017] ACTSC 357 at [22], Mossop J identified a number of factors which were said to be relevant to the assessment of the objective seriousness of an offence of sexual intercourse without consent. These matters included whether the offence was premeditated; whether the offender acted alone or in company; how long the attack lasted; whether the victim was raped more than once; whether the offender used violence or threats of violence; whether a weapon was used; whether the victim was injured, humiliated or degraded; whether the offender used a condom; whether the victim was particularly vulnerable and whether the offender ignored warnings or protests by the victim.

59. Considerable care needs to be taken with respect to a number of the matters enumerated in Palmer. Where present, some of those matters would give rise to liability for offences which carry higher maximum penalties than the present offence: see, for example s 54(3) of the Crimes Act (where the offence is committed in company); ss 55 and 55A of the Crimes Act (where the offence is committed against a young person or a person under special care); and ss 51 to 53 of the Crimes Act (where physical violence or threats of physical violence accompany an act of sexual intercourse without consent). As the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 would preclude the Court taking these matters into account as a matter of aggravation when sentencing for an offence contrary to s 54(1), it follows that offending is not less serious because of an absence of these matters.

60. Accordingly, I do not consider that the objective seriousness of the present offending is any less because it did not involve a particularly vulnerable victim; or because the offender was not in company. I also do not consider the offender’s conduct to be less serious because it did not involve physical violence or threats of violence.

61. Nonetheless, as McCallum CJ observed in DPP v Earle [2023] ACTSC 93, the range of possible offending under s 54 remains broad. It encompasses both predatory and humiliating acts of forced penetration and “fleeting, impulsive acts undertaken without regard to whether there is consent from the victim”: Earle at [23]. Following the amendments to s 54 of the Crimes Act, the offence now also encompasses acts of sexual intercourse where the offender has an honest, but objectively unreasonable, belief that there was consent to sexual intercourse.

62. I accept that the present offending was impulsive and fleeting; it was not planned. However, as McCallum CJ emphasised in Earle at [22], the resulting trauma of such offences is “often intense and enduring”.

63. In the present case, the offender did not know the victim prior to the night of the offending. The sexual intercourse occurred less than two hours after the offender first met the victim.

64. By their verdicts, the jury has demonstrated that they were satisfied beyond reasonable doubt that the victim did not consent to sexual intercourse in the bathroom. For the reasons outlined above, I am satisfied that the offender knew that the victim did not consent. If, contrary to the above, I am wrong in my conclusion that the offender knew that the victim was not consenting, in circumstances where the victim was saying no, crying and was trying to get away, the level of recklessness would be so high as to be indistinguishable from knowledge of lack of consent.

65. The duration of the offending was not long. I have concluded that the offence was committed only from the time that the victim said no, started crying and tried to get away. However, as the present case demonstrates, significant harm can be occasioned from offending which is short in duration.

66. Like McCallum CJ in Earle, “I do not consider it necessary to pinpoint the seriousness of the offence on a notional line”: Earle at [27]. It suffices for me to record my finding that the present case is a serious instance of sexual intercourse without consent.

Remorse – s 33(1)(w) of the Crimes (Sentencing) Act 2005

67. In the PSR and ICOAR, the offender declined to comment on the offending, explaining that he was pursuing an appeal against his conviction.

68. However, the offender reported to Dr Bollinger that he “got walked into a bathroom” after the victim had put her number into his phone. The offender told Dr Bollinger that he requested that she “give me head. She said no, I didn’t force her”. The offender acknowledged that they had sexual intercourse, but he reported a belief that it was consensual. He said that “She never told me to stop, she never said to stop. If I’d been told to stop I would have instantly stopped”. He said “I thought there was consent”.

69. The offender said that he does not “want to take away from [the victim’s] experience”. He reported feeling “like a terrible human being”. He said that this “destroys me”. He stated he that he has been “trying hard to get my life back on track” and he feels that “I’ve failed everyone”.

70. This limited expression of remorse is far from a proper recognition of the offender’s conduct or the harm which the offender caused the victim. I have not found that it is such as to justify any significant mitigation of the sentence to be imposed.

Risk of deportation

71. The offender’s father wrote a letter to the Court in which he described the family’s relocation from Nigeria to Australia. The offender’s father informed the Court that the family travelled to Australia on a diplomatic assignment, but did not return after the offender’s father was declared a person of interest by the Nigerian Government. The offender’s father explained that “Pro Biafrans”, as he has been labelled, are considered enemies of Federal Republic of Nigeria and are often killed. The offender’s father attached several news articles to his letter as evidence of this risk.

72. The offender’s father informed the Court that the offender’s mother has become an Australian citizen. The offender and his father were eligible, however they have not been able to secure the necessary documents without assistance from people in Nigeria who are too afraid to assist.

73. The offender’s father explained the offender is at risk of being deported. The offender’s father explained the offender does not have any family or friends in Nigeria and does not speak the language. He described the effect of deportation as a “death sentence”, as a result of the risk of persecution from the government which the offender faces.

74. Various Australian jurisdictions have taken different approaches to evidence of this nature: R v Ruwhiu [2023] ACTCA 18 at [80] – [81], per Loukas-Karlsson J, citing R v Calica [2021] NTSCFC 2; 43 NTLR 7 at [15] – [18]. In Victoria. it has been held that: … the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/ her release. See Guden v The Queen [2010] VSCA 196; 28 VR 288 at [25]. See also Abdullahi v R [2024] VSCA 156 at [70].

75. A similar approach is taken in Queensland, South Australia, the Northern Territory and Tasmania: see R v Norris [2018] QCA 27; 3 Qd R 420; R v SEB [2023] QCA 69 at [10]; R v Kroni [2021] SASCFC 15; 138 SASR 37 at [217]; Calica at [156] and MAC v Tasmania [2018] TASCCA 19 at [196].

76. In contrast, in New South Wales and Western Australia, it has been held that a risk of deportation is not a mitigating factor on sentence, because the decision to deport is an executive decision: Afful v The Queen [2021] NSWCCA 111 at [51]; Hickling v The State of Western Australia [2016] WASCA 124; 260 A Crim R 33 at [57].

77. In the Australian Capital Territory, it has been accepted that: (i) A risk of deportation may affect the impact of a sentence of imprisonment, where the prospect of deportation will make a period of incarceration more burdensome for the offender: R v Aniezue [2016] ACTSC 82 at [67]; Ruwhiu at [83]; (ii) A risk of deportation may also be relevant in considering hardship to third parties (such as family members) under s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT): Ruwhiu at [85]; (iii) There must be sufficient evidence of the risk of deportation and the impact of that risk for deportation to be taken into account on sentence: R v Butters [2019] ACTSC 143 at [96] – [97] and Aniezue at [65]; and (iv) A court must not craft a sentence that is designed to circumvent migration laws: Butters at [95], [103]; Islam v R [2006] ACTCA 21 at [35].

78. In the present case, the prosecutor did not challenge the above principles. Rather, she contended that there was insufficient evidence to demonstrate that there was a risk of deportation.

79. The evidence from the offender’s father that the offender is at risk of deportation accords with Commonwealth law: s 501(3A)(a)(i) of the Migration Act 1958 (Cth) provides that the Minister for Home Affairs must cancel a visa of a person who fails the character test because he or she has a “substantial criminal record”. A “substantial criminal record” is defined to include a “term of imprisonment of 12 months or more”: s 501(7) of the Migration Act. See similarly Ruwhiu at [90] and the authorities cited therein. However, it is not certain that the offender will be deported. The Minister has a discretion to revoke the mandatory decision to cancel the offender’s visa: s 501CA of the Migration Act, discussed in Konamala v The Queen [2016] VSCA 48 at [31] – [32].

80. Nonetheless, whilst there must be sufficient evidence of the risk of deportation, it is not the case that deportation must be certain before it may be taken into account. In Magedi v The Queen [2019] VSCA 102 at [56] – [58], the Victorian Court of Appeal, after noting the mandatory cancellation provision, and the “uncertainty as to whether that discretion would be exercised”, continued (at [58]): … The applicant’s visa has been cancelled, and he has foreshadowed an application for revocation. We proceed on the assumption, therefore, that uncertainty about whether the cancellation will be revoked is a matter weighing heavily on his mind. (emphasis added)

81. This statement accords with authority in this Court as to the proper approach to be taken when assessing an offender’s risk of deportation: see, for example, Aniezue at [65] and Butters at [96].

82. Importantly, as the authorities in all jurisdictions make clear, a court must not craft a sentence so as to avoid the effects of the Migration Act. An otherwise appropriate sentence must not be reduced to avoid a risk of deportation: R v MAO; Ex Parte Attorney- General (Qld) [2006] QCA 99; 163 A Crim R 63 at [18]. Rather, when taking into account the risk of deportation, the court simply recognises that any term of imprisonment may be more burdensome on a person who faces the prospect of removal from the country upon their release. The risk of deportation must not reduce the weight to be given to the purposes of denunciation and/or recognition of the harm caused to the victim.

83. I accept that the offender is at risk of deportation. In view of the unchallenged evidence that the offender will face persecution in Nigeria if he is deported, that the offender has no supports in Nigeria, and that the offender does not speak Nigerian, I am satisfied that the prospect of the offender’s deportation will weigh heavily on the offender and his family during any period of imprisonment imposed. Prospects of rehabilitation

84. The offender is young. He was 21 years old at the time of the offending, and is now 23 years old. The offender’s youth heightens the purpose of rehabilitation: MT v R [2021] ACTCA 26; 17 ACTLR 22.

85. The offender also has supportive parents. However, the fact that the offender committed the present offending in breach of a good behaviour order is a matter of concern. When the offender was sentenced by the Chief Magistrate for the offences outlined at [51] above, her Honour commented that the offender’s motivation to avoid future re-offending “may be reduced further by a strong motivation to avoid the risk of deportation”: Hawke v Umunakwe [2021] ACTMC 13 at [195]. The offender committed the present offence whilst subject to a good behaviour order, and having had the risk of deportation made explicit to him. The offender’s lack of remorse also weighs against a positive finding as to his prospects of reoffending.

86. In these circumstances, I do not find that the offender’s prospects of rehabilitation are good. However, in view of the offender’s family support and his youth, I have also not considered his prospects to be poor.

Comparative cases

87. Annexed to this judgment is a table of sentences imposed in this jurisdiction for offences of sexual intercourse without consent.

88. I have carefully considered the sentences imposed in these decisions, as required by s 33(1)(za) of the Sentencing Act. Important matters which distinguish the present case from many of the comparative cases is the fact that the offender knew that the victim did not consent, the fact that the offender lacks any significant remorse and the fact that the offender was on conditional liberty at the time of the offending.

89. In considering the sentences imposed in the comparative cases, I have also borne in mind that these cases illustrate, but do not define, the possible range of sentences available, and that sentencing practice cannot cap the upper nor lower ranges of a sentence: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51] – [53]. The function of comparative cases is not to pursue strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles: Hili v R [2010] HCA 45; 242 CLR 520 at [48] – [49]. Determination

90. The seriousness of sexual assault offences has been emphasised in numerous decisions of intermediate appellate courts. Over two decades ago, Gleeson CJ (with whom Meagher JA and Newman J agreed) said: … non- consensual intercourse is itself an extreme form of violence, and one which the community expects the courts to take seriously. See R v Hartikainen (unreported, 8 June 1993, NSWCCA).

91. Sexual violence invades a person’s bodily integrity and autonomy. The Court must recognise the deep and lasting trauma that is wrought by offending of this nature, the tendrils of which have, in the present case, reached into every facet of the victim’s life.

92. As the Court of Appeal held in Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288, the serious nature of sexual intercourse without consent “demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence”: Wyper at [114]. As outlined above, I am satisfied that the offender knew that the victim did not consent to this act of sexual intercourse. In such a case, the weight to be given to these purposes of sentencing are particularly pronounced.

93. The offender is young. He was 21 years old at the time of the offending. He is now 23 years old. He was subject to a good behaviour order at the time of the offending. He has shown limited remorse for his offending. Whilst facilitating the offender’s rehabilitation is important because of his youth, his subjective case is not such as to outweigh the significant need for punishment, denunciation and the recognition of the harm that has been occasioned.

94. It was not submitted that the offender’s background was such as to raise any Bugmy considerations; nor was it submitted that the offender’s moral culpability was reduced by reason of his mental health. I accept that the offender’s mental health will render his experience of custody more onerous: R v Verdins [2007] VSCA 102; 16 VR 269 at [29 – [30], [32]. I will also take the offender’s risk of deportation into account in the manner discussed at [70] – [82] above. In particular, I accept that the prospect of deportation will weigh heavily on the offender, in view of his mental health conditions. I also accept that the prospect of deportation will weigh heavily on the offender’s family.

95. As outlined above, the comparative cases indicate that the range of sentences imposed for offending of this nature range from alternatives to full time imprisonment to imprisonment for four years. The offender’s counsel invited me to impose an alternative to full time imprisonment, such as an Intensive Correction Order (ICO) or a suspended sentence. The offender has not been assessed as eligible for an ICO, but nothing turns on this. No sentence other than a term of full-time imprisonment would be adequate to meet the need for denunciation, punishment, deterrence and recognition of the harm that the offender’s conduct caused the victim.

96. As noted above, the present offence was committed some sixteen months after the imposition of a good behaviour order, and two months before the good behaviour order concluded. It appears from the PSR that the supervision component of the good behaviour order was cancelled early due to satisfactory compliance. Otherwise, there is no suggestion of non-compliance with the good behaviour order. I have taken into account the breach of the good behaviour order in assessing the appropriate sentence to be imposed for the index offence. In these circumstances, I will take no action on the breach.

97. The offender has spent 1 day in custody in relation to this offence. Accordingly, I will backdate the sentence imposed by 1 day to account for this pre-sentence custody.

Orders

98. For the above reasons, the following orders are made: (1) The offender is convicted of sexual intercourse without consent (CC2023/2900) and sentenced to a period of imprisonment of three years, to commence 9 April 2025 and to expire on 8 April 2028. (2) A non-parole period for two years will be imposed. This non-parole period will commence on 9 April 2025 and will expire on 8 April 2027. (3) The breach of the Good Behaviour Order imposed for the conviction of joint commission damage to property (CC2020/14077) is proved, with no further action to be taken on the breach.

I certify that the preceding ninety eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate: A McKay Date: 11 April 2025 ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances Subjective Sentence Circumstances imposed DPP v Charges: Found guilty Sexual intercourse Ierfone 1x act of indecency without consent after trial without consent: [2025] 1x sexual intercourse without consent Convicted and ACTSC 60 The offender and victim were colleagues. Offender was sentenced to two (Taylor J) They attended a Christmas party together 29 years of age years of in December 2022. The offender touched at time of imprisonment. the victim’s breasts which was captured on sentence and Act of indecency CCTV. The victim offered to drive the reported stable without consent: offender home in her vehicle. The offender upbringing and Convicted and asked to go home with the victim and she employment sentenced to 10 declined. The offender digitally penetrated history. months the victim’s vagina over her stockings in her Offender imprisonment. car. showed little Sentences partially remorse. cumulative. Total term of imprisonment for two years and four months. Sentence to be suspended after offender spent four months in custody. DPP v Charges: Guilty plea Two years Williams 1 x sexual intercourse without consent (discount of imprisonment [2024] The offender and the victim had been in a 20% applied) suspended after ACTSC 283 relationship, broken up but had reunited to serving six (Taylor J) “work things out”. The victim allowed the The offender months in custody offender to stay the night at her residence. was 52 years of and They went to bed together. The victim woke age and entering into a up as the offender pushed her onto her left pleaded guilty. GBO for 12 side and inserted his penis into her vagina. He lacked months. The victim asked “what are you doing?” and genuine the offender responded “just relax”. The remorse and offender continued to engage in penile- insight into his vaginal sexual intercourse with the victim offending. He for about 10-15 minutes until he ejaculated. disclosed problematic alcohol use. DPP v Charges: 4x sexual intercourse without Guilty plea Count 1 (sexual Aghahosseini consent (discount of intercourse without [2024] 2x acts of indecency 15% to 20% consent): two years ACTSC 237 4x further dishonesty/personal violence applied) and six months (McCallum offences imprisonment CJ) The victim (19) and offender (37) met on a The offender dating app. The offender messaged the was 39 years Count 2 (sexual victim offering money to meet up in person old had limited intercourse without and watch the victim undress. After meeting supports in consent): two years up, the offender kissed and bit the victim’s Australia and and six months neck and nipples. The victim audibly had been imprisonment protested. The offender penetrated the employed victim’s anus with his finger and penis. The sporadically. He Count 3 (sexual offender then forced the offender to engage had an illicit intercourse without in oral intercourse. Later, after the victim substance consent): two years and offender left to obtain funds to pay the issue. Offender and six months victim, they returned to the accommodation also sentenced imprisonment and the offender again anally penetrated for theft, Objective Circumstances Subjective Sentence Circumstances imposed the victim. The offender again forced the robbery and Count 4 (sexual victim to perform oral sex. assault. 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] intercourse without consent (discount of distribute images: ACTSC 227 1x count of threatening to distribute 15% applied) five months (McCallum intimate images imprisonment CJ) The offender and victim met a bar. Later in The offender the evening, they crossed the road to an was 19 years of Sexual intercourse alleyway and carpark. The offender asked age at the time without consent: the victim if she wanted to have sex. She of offending one year and eight said she did not. They kissed and the and had a months offender digitally penetrated the victim’s substance use imprisonment vagina, which was consensual, but filmed disorder. the act, which was non-consensual. The Sexual intercourse offender told the victim to sit on a trolley and without consent: wrote several words on exposed parts of two years and one her body including on her breasts and month vulva. The offender took several photos and imprisonment. videos of the victim without her consent. The offender forced the victim to perform All sentences oral sex. They engaged in consensual concurrent. penile-vaginal sex before the offender removed the condom. The victim told him Non-parole period she 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] 1x Act of indecency without consent (discounts of without consent: ACTSC 270 1x sexual intercourse without consent 5% and 15% Convicted and (Taylor J) The offender and the victim met in October applied) sentenced to 19 2019. The offender was a friend of the months victim’s partner at the time. Prior to the Offender had imprisonment (six offending, the offender had purchased limited pro months cumulative drugs from the victim on a few occasions. social for sexual He had also previously engaged in drug use connections, intercourse without at the victim’s residence. There was no prior was a consent sentence) romantic or sexual relationship between the significant drug offender and the victim. On the evening of user and Sexual intercourse the offending, the offender came over to the reported poor without consent: victim’s house. They took drugs and the mental health. Convicted and victim turned on the CCTV camera above sentenced to 35 her bed as she had a “bad feeling”. The Objective Circumstances Subjective Sentence Circumstances imposed victim passed out at some stage. The months offender spent approximately 44 minutes imprisonment. touching the victim’s vaginal area and legs, placing his fingers inside her underwear Total head and rubbing and touching her breasts sentence of three stopping only when she appeared to stir or years and five regain consciousness (Rolled up count, act months. of indecency without consent). The offender then removed the victim’s pants and began Non parole period to perform cunnilingus, digitally penetrated of one year and 10 her vagina and then penetrated her vagina months. with his penis (rolled up count, sexual intercourse without consent). Okwechime v Charges: 1 x sexual intercourse without No guilty plea Sentence imposed The Queen consent (oral sex) by Norrish AJ, [2023] 1 x sexual intercourse without consent The offender upheld by the ACTCA 233 (penile–vaginal) was 33 years of Court of Appeal: (McCallum 1 x act endangering health (Choke) age and had a CJ, Mossop The victim and the offender and his friends substantial First offence: and arrived at a nightclub together. The victim criminal history Convicted and Charlesworth had been in company with the offender and of dishonesty, sentenced to two JJ) his friends for approximately two hours. The driving and years and six victim and the offender left the nightclub drug offences. months together at about 4:15 am and arrived at the At the time of imprisonment. offender’s apartment for a party. On arrival, the offences, the victim realised there was not going to be the offender Second offence: a party so she asked the offender if she was subject to Convicted and could charge her phone and then go home. parole for NSW sentenced to four Whilst inside the apartment, the offender dishonesty and years began kissing the victim and the victim told possession imprisonment. him to stop. The victim initially consented to offences. oral sex and digital penetration but after Choking: Convicted some time the victim refused consent and and sentenced to tried to wriggle away but could not. [48] The one year and three victim was dragged into a room and the months offender performed penile-vaginal sex. The imprisonment. victim cried saying: “Please stop this. I want Choking sentence to go home. I want to go to my dad” at which concurrent to point the offender grabbed her neck and sentence for first started choking her. The offender was offence. found guilty at trial on three counts. He appealed his conviction on these counts Total sentence of and appealed his sentences for the penile- five years and vaginal intercourse and choking counts. three months. The appeal was dismissed. Non-parole period of 3 years. 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 consent Offender was Sexual intercourse (McCallum The offender and the victim met through a person of good without consent: CJ) dating application. They had an intimate character with ICO for two years romantic relationship and when that ended strong pro- and six months. they remained friends. The victim contacted social ICOs partially the offender seeking prohibited drugs and influences. cumulative. invited him to her house and “stay over”. Relatively 300 hours of The victim went to bed and fell asleep. She young man community service woke up to the offender rubbing her clitoris without any and 20 hours of with his fingers. The offender digitally criminal history. counselling. penetrated the victim’s vagina. The victim Raised in a Objective Circumstances Subjective Sentence Circumstances imposed alleged that further digital penetration and loving and cunnilingus occurred, which were the acts supportive charged as counts 2 and 3. The jury family and returned verdicts of not guilty for those holds strong counts. The offender then inserted his penis relationships into the victim’s vagina with force without with friends, her consent. The victim said “wait, wait, family and wait” and the offender immediately stopped colleagues. and asked if she was okay. The victim said Strong he had taken her by surprise and he prospects of laughed and apologised. rehabilitation. DPP v Jones Charges: 1x sexual intercourse without Found guilty Sexual intercourse (No 2) consent after trial without consent: [2023] 1x act of indecency without consent two years and six ACTSC 99 The offender and victim were work Twenty-seven- months (McCallum colleagues and matched on Hinge, a dating year-old young Imprisonment. CJ) 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 they no substance imprisonment (six got to the victim’s house she told the issues and no months concurrent) offender she had vaginal thrush and was in criminal history. a “bit of pain” and did not wish to engage in Poor attitude to Non parole period any sexual activity that night. The victim offences. Had of 15 months. went to bed and the offender joined her. underlying The offender started feeling all over the chronic mental victim’s body and she said nothing and lay health still. The offender digitally penetrated the conditions and victim while he thought she was asleep. has been Offender was found guilty at trial. suicidal. R v Finau Charges: 1 x sexual intercourse without Found guilty Two years and six (No 2) consent after trial. months’ [2020] The offender and victim were work imprisonment. ACTSC 193 colleagues. They met in Civic and attended The offender (Murrell CJ) several night clubs. They shared a taxi to had no criminal Suspended after 9 the victim’s residence with the intention that history, months on entering the offender would continue in the taxi to his otherwise a good behaviour own residence. He asked if he could come impeccable order. into her apartment for water and to use the character. toilet before ordering himself another taxi. Stable, loving She agreed. In her apartment, the victim upbringing. changed into sleeping attire. She returned Positive to the living room where she found the character offender lying on the sofa bed in his references. underwear. She asked him to dress. He Offending began to put the pants on but directed her considered out attention to the fact he had an erection. He of character. 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 Objective Circumstances Subjective Sentence Circumstances imposed 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 consent (discount of by Elkaim J, upheld ACTCA 25 The offender and the victim had been 20% applied) by the Court of (Murrell CJ, staying in shared accommodation at a Appeal: Mossop J, hostel. The offender asked the victim for a The offender Crowe AJ) kiss and to massage her shoulders. She had a lengthy Two years told him to go away. He then straddled the criminal record imprisonment. victim while she was on her back and and serious Non-parole period attempted to pull down her top and bra. She mental health of 17 months. tried to push him away and made it clear issues. There that his actions were unwelcome. The was a causal respondent grabbed the victim by the throat connection and pushed her down into the bed. The between the victim was fearful and said to the mental respondent, “if I do this, you won’t hurt me?” condition and to which the respondent responded that he the offending would not. The offender engaged in penile- conduct, vaginal sexual intercourse with the victim. reducing the The Crown appealed the sentence offender’s moral imposed, arguing it was manifestly culpability and inadequate. The appeal was dismissed. the objective seriousness of the offence. R v Aroub Charges: 1 x act of indecency Found guilty Act of indecency: [2017] 1 x sexual intercourse without consent after trial Convicted and ACTSC 187 A jury found the offender guilty of offence of sentenced to two (Murrell CJ) sexual intercourse without consent. The At the time of months victim accompanied a friend to Civic. During the offence, the imprisonment. the evening, the friends consumed alcohol offender was 25 Sexual Intercourse at several nightclubs. They met the years old. He without consent: offender. In the early hours of the morning had two years the victim, her friend, the offender and experienced a imprisonment, others went to the offender’s home. traumatic suspended after six Eventually, the victim went to a spare room upbringing and months upon where she lay down and fell asleep. The suffered from entering into a victim awoke to find the offender digitally depression. He GBO. penetrating her. He had unzipped her dress had a criminal and was kissing her back between the history for less shoulder blades. The victim pushed the serious matters offender’s hand away. He smiled and told and no prior her to “relax”. She told the offender that she history of needed to go to the bathroom. She committing attempted to do so but was unable to open sexual the door as it had no handle. The offender offences. assisted her to open the door and she left the room. The victim found her friend and He had been on told her what had occurred. The offender conditional was found guilty by a jury. liberty at the time of the offence. R v Agresti Charges: Found guilty 2 years, 4 months [2016] 1 x sexual intercourse without consent after trial imprisonment, 18 Objective Circumstances Subjective Sentence Circumstances imposed ACTSC 9 The victim and offender were ADFA cadets. The offender months of which (Murrell CJ); They went out with other cadets to Civic. was 18 years at suspended on Agresti v The The victim consumed a significant quantity the time of the entering a good Queen of alcohol and became very intoxicated. offence and behaviour order. [2017] Later in the evening, the offender and the was raised in a ACTCA 20; victim met up, and took a taxi back to ADFA. supportive 13 ACTLR 1 On reaching her room, the victim lay on her family. 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 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.