O'Brien (a pseudonym) v DPP [2026] ACTCA 2

By Notice of Appeal filed on 24 June 2025, the Director of Public Prosecutions (the Director) appealed against the sentences imposed on the appellant on the following grounds: (a) The learned sentencing judge made a material factual error, namely, in respect of count 8, finding the offender was reckless as to the victim’s consent and failing to find that the offender knew the victim was not consenting. (b) The learned sentencing judge erred by imposing a conviction with no further penalty in respect of count 2, in circumstances where such a disposition was not an available sentencing option at law.

The jury were unable to agree with respect to Count 1 and were discharged without reaching a verdict on this count. The jury found the appellant guilty of Count 2.

The appellant then pulled Ms Welch’s skort down, pulled her underwear to one side, and started to rub his penis between Ms Welch’s buttocks (Count 7: Act of indecency without consent). This made Ms Welch “really uncomfortable” and she tried to push the appellant off. The jury were unable to agree and were discharged without reaching a verdict on this count.

The appellant then inserted his penis into Ms Welch’s vagina and continued to thrust until he ejaculated inside of Ms Welch’s vagina (Count 8: Sexual intercourse without consent). He was not wearing a condom. The appellant then got off Ms Welch and said that he hoped that he did not get Ms Welch pregnant.

In her Evidence in Chief Interview, Ms Welch said that she had told the appellant to stop and that she told him to “get off me”. In re-examination, Ms Welch clarified that she first told the appellant to “stop or not do it” when the appellant moved his hands down, and was pulling her skort to the side (that is, in reference to Count 7). The appellant was found guilty of this count.

Ms Welch bled and felt pain as a result of what the appellant had done. After the appellant left, Ms Welch went to the bathroom and cried. She messaged a friend, and told the friend that the appellant had raped her. Later that day, the appellant messaged Ms Welch on Snapchat. He apologised for what he did, and said that he hoped that it wouldn’t change anything between them. He also said that he didn’t want Ms Welch to break up with him because of the incident and that he hoped that she was okay.

In cross-examination regarding all the incidents which occurred on 17 November 2020, it was suggested to Ms Welch that the appellant had asked to have sex with her and she had agreed. Ms Welch did not recall whether the appellant had asked, but denied that she had agreed. It was further suggested to Ms Welch that she did not ask the appellant what he was doing, or try to push him off. Ms Welch disagreed. Additionally, it was suggested that the appellant did not rub his penis between Ms Welch’s buttocks. Ms Welch maintained that he did so.

After this incident, Ms Welch felt uncomfortable around the appellant and did not want him touching her. After a while, Ms Welch broke up with the appellant and blocked him on her social media. She also wrote a letter about the relationship, in which she recorded that the appellant had raped her. She hid the letter in the bottom of her drawers. Ms Welch also told her best friend that the appellant had raped her, that she had told him to stop, but that “he kept going”. Ms Welch also disclosed that the appellant had sexually assaulted her to two other friends that year.

The following year, in April 2021, the appellant and Ms Welch started talking and hanging out again. On 3 April 2021, Ms Welch went with the appellant to the dam near Urambi Hill. They sat down and talked. The appellant rolled Ms Welch over so that she was lying on her stomach with her arms crossed and her head on her arms. The accused sat on top of her.

Ms Welch told the appellant that she did not want to have sex with the appellant, that she was on her period and that she was not ready for anything like that. The appellant said that he did not really care and he was just “really horny”. He said, “We’ve done it before, so why can’t we do it again?” The appellant then put a condom on and rubbed his penis between Ms Welch’s buttocks. The condom broke, so the appellant put another one on and rubbed it on her buttocks until he ejaculated into the condom (Count 9: Act of indecency without consent). The appellant then removed the condom and threw it in the bush. The jury were unable to agree and were discharged without reaching a verdict on this count.

In 2021, Ms Welch’s mother found the letter that Ms Welch had written in Ms Welch’s drawer. Ms Welch’s mother recalled that the letter said, “He raped me. I can’t believe he could rape me.” Ms Welch’s mother spoke to Ms Welch about the letter. Ms Welch said that it wasn’t true and that the appellant “couldn’t do this”. At some stage, Ms Welch told her mother something about it being “a bad dream”.

In late 2021, Ms Welch became pregnant with the appellant’s child. She gave birth to a baby boy in July 2022. The charged offences did not relate to the child’s conception.

On 4 August 2022, the appellant visited Ms Welch at home to see their baby, who was then a few weeks old. The appellant and Ms Welch were left alone in Ms Welch’s room, along with their baby. Ms Welch was post-partum and bleeding. The appellant got on top of Ms Welch, pushed her shoulder down and kneeled over her with a leg on each side. The appellant held Ms Welch’s face still, with one hand gripping her face, and kissed her. Ms Welch gave up and thought, “It’s not like we haven’t kissed before, I don’t give a shit anymore”.

The appellant then placed his hand inside the waistband of Ms Welch’s leggings and tried to move his hand inside her pants. Ms Welch pushed him away. The appellant persisted. Ms Welch said that she could not have sex with the appellant for at least six weeks after she had given birth, because of the risk of infection. The appellant told Ms Welch not to worry about the “six-week thing” because he was “wasn’t scared of a little bit of blood”. Ms Welch eventually kicked the appellant in the testicles. The appellant got off and said words to the effect of, “why the fuck [did you] do that”. Ms Welch responded that the baby was crying, and she did not want to leave him crying (Count 13: Act of indecency without consent).

In cross examination, it was suggested to Ms Welch that this incident did not occur, and that there was never an occasion after the baby was born where the appellant tried to have sex with Ms Welch. Ms Welch disagreed with both propositions. It was suggested to Ms Welch that she did not report this incident in her first EICI as it did not occur. Ms Welch disagreed. In re-examination, Ms Welch stated that she had not reported the incident initially because she perceived it as less relevant, as in her mind it was “just” an attempt.

The jury found the appellant not guilty of this count.

Ms Welch said that this kind of thing happened every time the appellant came over to her bedroom when there were no parents present, but that this was the only incident where she could be certain of the date that it occurred.

Ms Welch provided an Evidence in Chief Interview on 24 November 2022. In that interview, she told police about the incidents the subjects of Counts 5–9. On 8 August 2024, Ms Welch returned to police and disclosed the incident that was the subject of Count 13.

The following matters are some of the bases upon which allegedly ‘inconsistent’ verdicts relating to the same complainant have been reconciled: (i) Where there is a difference in the elements of the relevant offences: Hudson at [50]; (ii) Where there is a reason for the different verdicts that is not related to the credibility or reliability of the complainant (such as where the jury may have had a doubt about whether the accused knew, or was reckless as to consent, or where the jury may have had a doubt as to the timing of the allegation in question): Hudson at [50]; R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [150]; (iii) Where the evidence concerning the guilty verdicts is stronger than the counts upon which verdicts of not guilty were reached (such as where the stronger count is supported by the evidence of a witness, or by early complaint): see, for example, MFA at [22]; Markuleski at [82]-[83]; Kumar v R [2025] NSWCCA 119 at [184]; and (iv) Where there is a possibility that the jury reached a merciful verdict as a result of applying “their innate sense of fairness and justice in place of the strict principles of law” (MacKenzie at 367) or where the jury concludes, that, although a number of offences have been alleged, justice is met by convicting an accused of some only (MFA at [34], citing R v Kirkman (1987) 44 SASR 591 at 593).

In other words, where the acquittals can be explained by matters which are unrelated to the complainant’s credibility, the verdicts will not be inconsistent: TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128]. However, as Rigg J (Wright and Weinstein JJ agreeing) recently emphasised in Kumar at [131], “the obverse is not a legally binding proposition”. In particular, it is not the case that “in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot”: see MFA at [89]. A jury has “the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness”: Markuleski at [212].

Accordingly, in addition to the matters outlined at [71] above, matters which may explain differing verdicts may also include: (i) Where the complainant exhibited, or conceded, the possibility of a faulty recollection in respect of some events but not others; (ii) Where the complainant was able to provide more detail in respect of some events than others; (iii) Where there was an inherent unlikelihood about an aspect of the complainant’s evidence, which cast doubt on the accuracy of the witness’ evidence about that matter, but not the complainant’s general honesty; and (iv) Where the complainant may have resorted to a degree of exaggeration in some instances but not others. See CCX at [65], citing R v Smillie [2002] QCA 341; 134 A Crim R 100 at [28].

The above matters are just examples, and are not intended to be exhaustive: CCX at [63]. There is “no limit to the bases upon which verdicts may legitimately differ”: CCX at [62], citing Markuleski at [234].

Finally, when determining whether a jury has acted unreasonably by returning inconsistent verdicts: The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. M v R [1994] HCA 63; 181 CLR 487 at 493. Determination

The appellant’s submissions in support of this ground of appeal were limited to the verdicts concerning Ms Welch. It will be recalled that the verdicts relating to Ms Welch were as follows: Count 4 (October 2020: rubbing penis against Ms Welch’s thighs): Not guilty Count 5 (October 2020: attempting to kiss Ms Welch and touching Ms Welch’s breasts): Not guilty Count 6 (October 2020: choking): Not guilty Count 7 (October 2020: rubbing penis between Ms Welch’s buttocks): No verdict Count 8 (October 2020: penile penetration): Guilty Count 9 (April 2021: rubbing penis on Ms Welch’s buttocks): No verdict Count 13 (Aug 2022: putting hands down pants): Not guilty

Counts 4 and 13 are readily explicable. Count 4 (an allegation of an act of indecency) was preceded by consensual “messing around” and “play fighting” in the context of a boyfriend/girlfriend relationship. It is understandable that the jury may have given the appellant the benefit of a reasonable doubt as to whether the appellant honestly believed that Ms Welch was consenting. Count 13 was not reported until August 2024, well after Ms Welch had complained about the other incidents.

Counts 5, 6, 7 and 8 were the focus of the appellant’s submissions in support of this ground of appeal. These counts all relate to the same incident, which was alleged to have taken place in Ms Welch’s bedroom on 17 November 2020. The appellant contended that these counts cannot be reconciled and demonstrate that the jury must have compromised regarding their verdicts.

Contrary to the appellant’s submissions, there are at least two logical bases upon which the jury could have reached the differing verdicts for these counts.

First, as the Director submitted, Count 8 was the strongest of the allegations concerning Ms Welch. Count 8 was supported by Ms Welch’s complaints to her friends that the appellant had “raped” her, and by Ms Welch’s letter, which was written contemporaneously with the event in question, which also recorded Ms Welch’s statement that the appellant had “raped me”. None of the other counts was supported by such contemporaneous complaint evidence.

The trial judge directed the jury about this complaint evidence. His Honour informed the jury that this evidence was “capable of showing… consistency of conduct”. His Honour also informed the jury that they were entitled to take a delay in complaint into account when deciding whether they were satisfied beyond reasonable doubt of a particular complainant’s evidence (whilst also reminding the jury that there may be good reasons why a person may not complain). It was open to the jury, cognisant of the “heavy responsibility” upon them (MFA at [34]), to afford the appellant the benefit of a reasonable doubt concerning each allegation which was not supported by this evidence of contemporaneous complaint. To so conclude would not involve a “rejection” of Ms Welch’s evidence: MFA at [34].

Alternatively, as the trial judge observed in his sentencing decision, another basis upon which the verdicts may be reconciled concerned the appellant’s state of mind. Because the incident that gave rise to Counts 5–8 was alleged to have occurred prior to the enactment of the 2022 Amending Act (which will be addressed further below), it was necessary for the prosecution to demonstrate beyond reasonable doubt that the accused either knew that Ms Welch was not consenting; that he realised that there was a possibility that she did not consent and went ahead anyway; or that he did not even think about whether Ms Welch consented. It was not sufficient to demonstrate that the appellant did not “say or do anything to ascertain” consent, or that any honest belief in consent was not reasonable.

At the time of the events relating to Counts 5–8, the appellant was in a relationship with Ms Welch. The jury may well have accepted Ms Welch’s evidence and yet afforded the appellant the benefit of a reasonable doubt as to whether he honestly believed that Ms Welch consented to kissing and to rubbing his penis between her buttocks. The following extract of Ms Welch’s cross-examination is of particular significance in this respect. Concerning Counts 5 and 7, Ms Welch responded as follows: On this occasion, you were making out with [the appellant] in your bedroom? – Yes. That led to sexual intercourse between the two of you? – Yes. [The appellant] - before that, so before you – there was any sexual intercourse, [the appellant] had been touching your breasts? – Yes. He was touching other parts of your body? – Yes. You and he were kissing at the same time while this was happening? – Yes. When he was touching your body, you didn’t say anything to him? – I don’t remember. You didn’t tell him to stop? – I don’t remember. When he was touching your body, you also had your hands around him? – I don’t remember. At one point, you were lying face down? – Yes. He was straddling you? – Yes I think that’s a word you used, so do you know – is it a word you understand? – Yes Do you understand it to mean one leg on either side of your body? – Yes He was rubbing your back? – Yes You, at that point, did not tell him to stop or, “Don’t do it.”? – Not at that point, no. And you weren’t wriggling around or trying to get out from underneath him? – Not at that point, no.

In contrast, Ms Welch’s cross-examination concerning Count 8 was as follows: And [the appellant] asked you ‘Can I have sex with you?’ – I don’t remember. And you said ‘Okay.’? – That did not happen. He pulled your skort and underwear to one side? – Yes. And he put his penis inside you? – Yes. You didn’t say to him, ‘What are you doing?’? – I did. You didn’t say to him, ‘What are you trying to do?’? – I did. Before he had inserted his penis into you, he had also touched on the outside of your vagina through your skort? – Yes He did not rub his penis between your buttocks? – He did. He did not – I withdraw that. You did not try to push him off? – I did. And you never said anything to him indicating you didn’t want to have sex? – I did.

In short, in contrast to Ms Welch’s somewhat uncertain memory concerning what she said and did during the events which were the subject of Counts 5 and 7, her memory concerning Count 8 was clear. Ms Welch’s unequivocal account was that in respect of count 8, she expressed her lack of consent verbally and physically, asking the appellant “What are you doing?” and attempting to push him off. In these circumstances, it was open to the jury to give the appellant the benefit of a reasonable doubt with respect to the appellant’s state of mind concerning Counts 5 and 7, but to conclude that such a doubt should not be given with respect to Count 8, for which the appellant must have been at least reckless as to Ms Welch’s consent given her verbal and physical protests.

As the Director submitted, this possible explanation for the jury’s verdicts may also gain some support from the particular directions that were provided to jury by the trial judge concerning knowledge of lack of consent. Specifically, in explaining the third way in which the accused’s state of mind could be established, the trial judge provided the following “extreme example”: … assume that a man is pressing his groin against a woman who is yelling out, ‘Stop’ to him, struggling, screaming, crying and calling out for help. Now if that man actually believed that the woman was consenting to him doing what he was doing, then he would have to be found not guilty of that offence. It matters not whether his belief that she was consenting was unreasonable.

In Ware v DPP [2025] ACTCA 15 at [43] (delivered after the present trial), this Court cautioned against the use of such “extreme” examples in explaining consent to jurors. In the present case, the extreme example may have caused the jury to particularly focus on overt demonstrations of lack of consent, which were present for Count 8, but absent with respect to Counts 5 and 7.

Count 6, which concerned the allegation that the appellant choked Ms Welch, raises slightly different issues. The appellant contended that a reasonable doubt as to consent could not explain the verdict for this count, “in respect of which the issue of consent can hardly have been an issue”.

There are two answers to this submission. The first is that there was no contemporaneous complaint concerning this allegation. As explained above, it was open to the jury to afford the appellant the benefit of a reasonable doubt concerning a count which was not supported by a contemporaneous complaint.

Second, as noted above, it is open to a jury to reach differing verdicts where a complainant may have resorted to a degree of exaggeration or where there was an inherent unlikelihood about the event complained of. In this respect, in his closing address, counsel for the appellant juxtaposed Ms Welch’s evidence that she had been choked by the appellant in October 2020 against a letter that she wrote to the appellant in June 2021, when she expressed her love for him. This might have been a matter that raised a doubt in the jury’s mind about this particular allegation, but which did not cause the jury to doubt Ms Welch’s evidence concerning the sexual assault, which was the subject of a number of contemporaneous complaints. To so find would not necessarily have involved the making of a negative finding as to the complainant’s credibility, but even if it did, “it did not require a blanket rejection of the complainant’s evidence”: see similarly Kumar at [184].

As in Kumar (at [183]), the above observations are not intended to “indicate a determined view as to how the jury did reason”. Rather, they simply illustrate that “there is a proper way by which the appellate court may reconcile the verdicts”: Williams at [11(d)]; MacKenzie at 367. In these circumstances, the jury’s differing verdicts concerning Counts 5–8 do not demonstrate that the jury failed to perform its functions as required.

This ground of appeal must be dismissed. The change in the law of consent (Ground B) The change in the law

The 2022 Amending Act came into effect on 12 May 2022 (the day after its notification). As Mossop J observed at [8] of the Severance and Tendency Judgment, the amendments made by this Act: (a) required that, in addition to consent being freely and voluntarily given, consent must be communicated by saying or doing something: s 50B of the Crimes Act 1900 (ACT); (b) updated the circumstances set out in s 67 of the Crimes Act, which provides a non-exhaustive list of circumstances in which consent is negated: s 67(1) of the Crimes Act; (c) required that any belief that a person has that the other person consents to a sexual act in ss 54, 55(5)(b), 60, 61(5)(b) (sexual intercourse or acts of indecency without consent of a young person) be “reasonable in the circumstances”: s 67(4), and (d) provided that a belief is “not taken to be reasonable in the circumstances” if the person “did not say or do anything to ascertain whether the other person consented”.

Contrary to the appellant’s submission, the changes made by the 2022 Amending Act did not change the onus of proof. The onus of proof remains at all times on the prosecution: Ware at [33].

However, although the onus was not altered, significant changes were made to the elements of the offence by the 2022 Amending Act. Most importantly, under the ‘old law’, an accused who had an honest, but unreasonable belief as to consent would be entitled to an acquittal. Under the ‘new law’, such an accused must be found guilty. Contrary to the Director’s submission, this is a significant practical difference in the way in which the element of consent may be established

The trial judge provided the jury with an “Elements Document”. That document set out the elements for each separate count, correctly stated the law as it applied at the time of each alleged act, and distinguished between those counts that were alleged to have occurred before the change in the law and those counts that were alleged to have occurred after the change in the law. For Counts 10 and 11, which may have occurred either before or after the change, the document directed the jury as follows: Because the law changed on 22 May 2022, there are two different sets of elements, one relating to conduct which you are satisfied beyond reasonable doubt occurred after that date and one relating to conduct where that condition is not satisfied. The first set of elements are these: [Pre-2022 Amending Act elements extracted] If you are not satisfied beyond reasonable doubt that [Count 10/Count 11 occurred] after 22 May 2022, you need to decide whether the accused is guilty or not of [Count 10/Count 11] by looking at these elements: [Post-2022 Amending Act elements extracted]

The trial judge provided this document to the jury prior to the closing addresses.

The trial judge returned to the Elements Document in his Summing Up. Importantly, after correctly explaining the elements of the offences which occurred before the commencement of the 2022 Amending Act, the trial judge then turned to Counts 10 and 11 (which may have occurred before, or after, the change in the law). His Honour described the conduct which was alleged to have given rise to these counts and then said: Now, count 10 has an unusual aspect to it which raises a bit of a complication which it’s necessary for me to deal with. This complication arises because count 10 is alleged to have occurred sometime between the date[s] specified in the indictment and the law changed partway through that period. So the elements of count 10 are different depending on when the offence actually occurred either before or after the law changed. The elements appearing on page 10 of that document apply if you are unanimously satisfied, that is, you are all satisfied beyond reasonable doubt that the events which are the subject of count 10 occurred after 22 May 2022. And the elements of count 10 as they are set out on the following page, that’s page 11, apply if you are not unanimously satisfied beyond reasonable doubt that the events occurred after 22 May 2022.

The trial judge then repeated this direction, emphasising: So to make things perfectly clear, I hope, if you all agree that you are satisfied beyond reasonable doubt that the… events [which are the subject of count 10] occurred, and this was after 22 May 2022, then you apply the elements on page 10. You apply the elements on page 11, however, if you do not reach that conclusion. Now that might be because not all of you agree that the events occurred after 22 May 2022. And as I said, you apply the elements on page 10 if you are unanimously in agreement that the events occurred after 22 May 2022. So even if a single one of you is not satisfied of that, then you don’t look at the elements on page 10. You look at the elements on page 11.

The trial judge then emphasised to the jury that they should only consider the elements on page 10 of the elements document if they unanimously concluded that the offence occurred after 22 May 2022. His Honour told the jury that the reason for the different elements was “because the law changed”.

After directing the jury that they must be unanimously satisfied that the act alleged occurred and that the complainant did not consent to that act, the trial judge reminded the jury of the differences in the definitions of consent that applied depending on whether the relevant act occurred before or after 22 May 2022. His Honour then explained: The difference is that, if you’re looking at the elements of Count 10, as they appear on page 10, it’s not enough to say that a person consent[s] to a sexual act if they give informed agreement to that sexual act freely and voluntarily. The purposes of the definition that applies here, that is, after the law is changed something else has to happen before consent occurs. That is the person must communicate by saying or doing something to indicate that agreement. So let me explain how that works. Consent as it applies here, in the elements for Count 10 as they appear on page 10, requires not only something going on in the mind of the person, but also that they do something. A person might without saying or do anything consent to something, might actually want it, but if they don’t say or do something to indicate that consent they have not consented. So we’re looking at not only what is going on in the mind of the person, but also what they did. So it is possible, I guess, that a person could desire a sexual act and in their mind really want it, but unless they say or do something to indicate consent, they have not consented. So the law requires that after… 22 May 2022 that before you can say that someone consented to something they have to do or say something to indicate that consent. So that’s the major difference between – well, probably the only difference. That’s the difference between consent as we have been applying it up till now and consent from… 22 May 2022.

The trial judge then directed the jury concerning the change in the element of recklessness for counts which occurred after the change in the law. His Honour explained: When we look at this third element, in contrast to the earlier counts where the third element is something the prosecution can prove in one of three ways, when you look at page 10, you will see the prosecution can prove this element in one of four ways. The first three are similar to the earlier counts, but the fourth is not… So I am not going to repeat what I have said about the first three dot points. I have spoken to them – about them – a couple of times. But I am going to say something about the fourth dot point because it’s something that we haven’t come across before for this document. So to make clear this fourth dot point arises for offences which are alleged to have been committed after… 22 May 2022. And it has some important differences from the earlier three dot points. As I have made clear to you, the first three dot points require you to look at what was going on in the mind of the accused, as he was at the relevant time. But the fourth dot point is a bit different. What do you think? What do you do if you think its reasonably possible that [the appellant] actually believed that [Ms Parks] was consenting to what he was doing? Well, if that’s your conclusion you could not find in favour of the prosecution when you look at any of the first three dot points. But that’s not the end of the matter, because there’s this fourth dot point. It arises where you think it is a reasonable possibility that [the accused] actually believed that [Ms Parks] was consenting to what he did. The prosecution proves this dot point if it proves that [the accused] had no reasonable grounds for any belief that [Ms Parks] was consenting to sexual intercourse, and his belief is not a reasonable one if he did not say or do anything to ascertain whether [Ms Parks] consented.

His Honour then returned to the “extreme example” which he had provided earlier in his summing up, of a man who was doing a sexual act to a woman, who was struggling, screaming and crying for help. His Honour explained that “[e]ven if that man actually believed that the woman was consenting to the sexual act, a jury may well find he did not have reasonable grounds for that”. He said that this extreme example “illustrate[s] what this fourth dot point is all about”.

His Honour continued: For those earlier counts and also count 10 if you are looking at page 11 for that matter [ie if the jury was not unanimously satisfied beyond reasonable doubt that the act occurred after the change in the law], if the accused believed that the particular complainant was consenting to him doing what he did, then he is not guilty.

However, his Honour explained, if the jury were unanimously satisfied beyond reasonable doubt that the act the subject of Count 10 occurred after the change in the law, then the position is different. For an act occurring after the change in the law, his Honour directed: Even a person who genuinely believes that someone with whom he is performing a sexual act is consenting to that act may be found guilty if that belief is not a reasonable one. Similarly, a person who genuinely believes that someone with whom he is performing a sexual act is consenting to that sexual act may be found guilty if he or she did not say or do anything to ascertain whether that person is consenting.

When his Honour turned to Count 11, he explained that “[a]s with count 10, the elements of count 11 are different, depending on when the events occurred”. His Honour reminded the jury that “that is because the law changed on 26 May 2022 [sic]”.

In relation to Count 12, the trial judge explained that “[t]here is no problem with the dates of this count, so there is only one set of elements, fortunately”. In relation to count 13, his Honour directed the jury that as this count “relates to events after 22 May 2022”, the definition of consent to be applied was as set out on page 17 of the Elements Document, and that there were four ways that the prosecution could prove the third element of recklessness.

At the conclusion of the summing up, counsel for the appellant informed the trial judge that the relevant date of the change in the law was 12 May 2022, rather than 22 May 2022, neither counsel having previously noted this error (despite being provided with a copy of the draft elements document on 22 October 2024, prior to the summing up on 24 October 2024). The trial judge immediately corrected this error and directed the jury to apply 12 May 2022 rather than 22 May 2022 as the operative date when considering the Elements Document.

As can be seen from the above, the trial judge informed the jury that there were important differences in the elements concerning consent and recklessness that applied depending on when the count occurred. The trial judge explained that the reason for those differences was because “the law changed”. The directions were clear and were repeated orally, and were also provided to the jury in writing. The trial judge clearly identified to the jury the correct elements that applied for each count.

The appellant’s submission that “no mechanism was put in place to ensure that the jury were ad idem on the date [of the commission of Counts 10 and 11]” must also be rejected. As is clear from the extracts at [101] and [102] above, the trial judge informed the jury that their decision as to whether the events occurred after 12 May 2022 had to be unanimous, and directed the jury that if “even a single one of you is not satisfied of that”, then the elements that were applicable under the ‘old law’ were to be applied. The appellant did not submit that there was any error in this direction.

The appellant has not demonstrated that the jury was likely to have been misled or confused about the elements of consent or recklessness.

Accordingly, this ground of appeal must be dismissed.

The final submission that the prosecutor made to the jury concerned the standard of proof which the jury were to apply when considering the tendency evidence. The prosecutor told the jury that, in contrast to the elements of the offences, the jury did not need to find the tendency proved beyond reasonable doubt. The prosecution told the jury that they could use the tendency to assist in their deliberations if they were satisfied that it was “more likely than not” that the appellant had the tendency alleged.

This submission concerning the onus of proof for the tendency evidence departed from a concession which the prosecution had made before Mossop J in the hearing of the tendency and severance applications. At that time, the prosecution accepted that the jury should be directed that they could “only consider as a tendency incident those charged incidents where the tendency was proved beyond reasonable doubt”: Severance and Tendency Judgment at [42].

The Severance and Tendency Judgment was delivered on 17 April 2024. This was the same day that the High Court delivered its decision in DPP v Roder (a pseudonym) [2024] HCA 15; 281 CLR 18, which held that an alleged tendency is an intermediate fact which need not be proved beyond reasonable doubt, unless it is indispensable to proof of guilt. The change in the prosecution’s position is no doubt explained by the High Court’s clarification of the law in Roder.

The trial judge then instructed the jury that there were “two aspects” that needed to be taken into account when determining the use to be made of the tendency evidence. First, his Honour instructed the jury to “examine the reliability of the evidence on which the prosecution relies to decide what acts of the accused you will take into account”. Second, his Honour instructed the jury to “examine the question of whether those acts of the

The appellant in Kanbut was charged with Commonwealth slavery and money laundering offences involving two complainants, X and Y. The Crown’s Tendency Notice expressed the tendency sought to be relied on was a tendency to commit a series of acts against both of the complainants X and Y (for example, a tendency “to impose on X and Y a debt of $45,000”), where that series of acts particularised in the Notice wholly comprised every particular relied on to satisfy proof of the offences on the indictment (and no other conduct): Kanbut at [60] – [63]. The tendency direction that was given by the trial judge was in the terms of the tendency as particularised in this tendency notice.

In upholding an appeal against conviction, Beech-Jones CJ at CL (as his Honour then was, and with whom Button and Hamill JJ relevantly agreed) observed that, “[b]y grouping the conduct engaged in against X and Y together and then formulating the alleged tendency in a manner specific to both of them”, the tendency direction “wholly failed” to achieve the purpose of tendency evidence, namely, to “utilise [the] acceptance of the evidence of one of the complainants to accept the evidence of the other”: Kanbut at [65].

The decision in Kanbut was distinguished by the NSW Court of Criminal Appeal in Rassi. The appellant in Rassi was charged with four counts of sexual offending against a child. In support of its case on each count, the prosecution relied on tendency reasoning, specifically that the appellant had a “tendency to act in a particular way, namely, to have a sexual interest in the complainant, [MM] and a preparedness to act on that interest in respect of [MM]”: Rassi at [81]. The Crown relied on the evidence of each count, and a number of uncharged acts, to establish this tendency.

One of the grounds of appeal in Rassi concerned the directions that had been provided to the jury in respect of this evidence. Specifically, the appellant contended that the directions “invited a circular process of reasoning”, and “may have led the jury to convict the appellant… by adopting a standard of proof less onerous than proof beyond reasonable doubt”: Rassi at [90].

Justice Hamill (with whom Beech-Jones CJ at CL and Button J relevantly agreed) rejected this contention. His Honour observed (at [105]) that: …the process of tendency reasoning involves the tribunal of fact deciding whether the asserted tendency exists by reference to the whole of the evidence, considered together, including the charged and uncharged acts. This is consistent with the way circumstantial evidence works more generally.

His Honour rejected the contention that the tendency directions provided to the jury were “incoherent” and also rejected the contention that the directions had misled the jury as to the standard of proof attaching to each of the charges: Rassi at [121]–[122]. Rather, his Honour held, the directions were “quite clear about the standard of proof attaching to each of the charges”: Rassi at [122].

In a concurring judgment, Beech-Jones CJ at CL (as his Honour then was, and with whom Button J relevantly agreed) agreed that the trial judge’s directions had not given rise to a miscarriage of justice. His Honour emphasised (at [6]) that: … the applicant’s argument that using evidence that directly supports a charged count as tendency evidence necessarily invites circular reasoning falls away when regard is had to the nature of tendency evidence and that a tendency need not be established beyond reasonable doubt…

His Honour continued (at [9]): So far as the onus of proof is concerned, it is not circular reasoning for the jury to first consider whether, based on all the evidence adduced in support of the tendency, including the evidence adduced in support of the counts on the indictment, the asserted tendency is established and then consider whether each of the counts on the indictment is proven beyond reasonable doubt including by reference to the asserted tendency if the jury considers it to be established. This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.

In so finding, Beech-Jones CJ at CL distinguished the decision in Kanbut. His Honour noted that Kanbut had held (at [65]–[66]) that: There are a number of problems with a tendency direction that identifies the alleged tendency in precisely the same terms as the acts said to give rise to it and which concern both complainants. The utility of a tendency direction in a case such as this is that, if properly formulated, it was a means of enabling the jury to utilise its acceptance of the evidence of one of the complainants to accept the evidence of the other. By grouping the conduct engaged in against X and Y together and then formulating the alleged tendency in a manner specific to both of them, the direction wholly failed to achieve that purpose. Moreover, the direction was misleading. As formulated, this direction meant that, unless the jury were satisfied of each of the precise acts relied on in relation to both complainants, then they could not be satisfied that the corresponding tendency has been established. However, leaving aside any question of the standard of proof, if they were satisfied of the relevant acts in relation to both victims then the Crown would not need to rely on the existence of any alleged tendency to prove its case as it would already be proved. (emphasis added in Kanbut)

His Honour then explained (at [11]): These passages need to be considered in light of the flawed tendency that was relied on by the Crown and the subject of the directions to the jury in Kanbut. The applicant in Kanbut was charged with slavery offences in relation to two victims, X and Y. As the above passage indicates, the tendency was formulated in terms of the accused’s tendency to commit acts against X and Y and not vulnerable women generally. The evidence relied on to establish that tendency was the acts of the accused that formed the basis of the charges. A tendency formulated in those terms and relied on as such invites circular reasoning when the jury must determine whether offences against X and Y have been committed. This has no relevance here given the manner in which the tendency was framed by the Crown in this case. In any event, the statement in Kanbut at [66] does not address the significance of the difference between establishing the tendency and the standard of proof of the elements of a charge. The significance of that difference has been explained.

The appellant in Decision Restricted was charged with a number of sexual offences against a single complainant, who was the daughter of his former partner. Each of the counts on the indictment related to an occasion where the complainant had gone to sleep watching a movie with the appellant, and then woke up to find the appellant sexually touching her.

The Crown invited the jury to find that the appellant had a tendency to have a particular state of mind, namely a sexual interest in the complainant, and a tendency to act on that sexual interest “by penetrating her vagina with his fingers and/or sexually touching her when she had fallen asleep beside him watching a movie”: Decision Restricted at [30]. The NSW Court of Criminal Appeal held that this tendency suffered from the same “intractable problems” described in Kanbut, in that the tendency was framed “so as to constitute exclusively the offending behaviour itself”: Decision Restricted at [92], [95].

The trial judge in Decision Restricted had invited the jury to make factual findings concerning the alleged counts when assessing the use to be made of tendency evidence. The Court observed that this direction given by the trial judge was “at odds with Roder at [37]”, but acknowledged that “[such a] flaw is not necessarily fatal”: Decision Restricted at [87]–[88]. The Court concluded that, having regard to the way in which the tendency had been framed in that case, the trial judge’s direction had occasioned a miscarriage of justice because "it was likely that the jury's attention would be deflected from applying the required standard of proof in respect of the offences charged": Decision Restricted at [105].

The High Court has granted the Crown special leave to appeal the decision in Decision Restricted. At the time of writing these reasons, that decision is pending. For the reasons discussed further below, the issues in Decision Restricted are quite different to those in the present case. Further, the appellant is a young person who has been convicted of serious offences, the sentences of which are the subject of a prosecution appeal. In these circumstances, it was not appropriate to delay judgment in the present case to await the decision of the High Court.

The final two authorities which should be mentioned are Wardell v R [2025] NSWCCA 26 and JS v R [2022] NSWCCA 145, which were not relied on by the appellant. JS preceded the High Court’s decision in Roder, and its reasoning was largely adopted by the High Court. Wardell was decided by a Court of Criminal Appeal constituted by the same judges as in Decision Restricted, and was delivered on the same day as Decision Restricted, but reached a different conclusion to Decision Restricted.

The appellant in JS was charged with two counts of sexual intercourse with a child under 10 years. Both counts related to the same complainant. The Crown alleged that the appellant had tendencies to have a sexual interest in that complainant and a willingness to act on that interest. In support of these tendencies, the Crown relied on evidence of the charged acts as well as an uncharged act.

The trial judge instructed the jury, consistently with the then Criminal Trial Bench Book, that: You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges on those occasions. In doing so you do not consider each of the acts in isolation: you should consider all the evidence and decide what conduct you are satisfied occurred. Although you are looking at the two episodes of conduct that are the subject of the charges, you are not, in this exercise, considering whether those episodes of misconduct have been proven beyond reasonable doubt… [Y]ou do not consider each of these episodes of conduct in isolation but you look at them collectively to decide what conduct you are satisfied occurred for the purposes of tendency reasoning. You consider all three of the episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established. It does not follow from this that you are satisfied beyond reasonable doubt of the guilt of the accused; it is simply part of the process of reasoning along the pathway toward whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges.

The Court (Basten JA, Hamill and Dhanji JJ agreeing) held that the trial judge had not erred in instructing the jury that in assessing one charge, they could take into account the evidence relating to the other charge “without being satisfied at that point that it was proved beyond reasonable doubt”: JS at [39]. In so holding, the Court acknowledged that such a direction “would be apt to undermine the general directions concerning proof beyond reasonable doubt in respect of each charge” and warned that “[t]hat danger calls for some care in formulating directions”: JS at [40]. To mitigate against this risk, the Court warned (at [43]) that: … it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency. [43]

It will be noted that this passage was adopted by the High Court in Roder at [37] (extracted at [143] above).

The direction given by the trial judge in JS did not accord with this preferred approach. As can be seen in the extract at [161] above, the trial judge in JS had directed the jury to “consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges on those occasions”. Nonetheless, the Court concluded (at [44]) that there had no miscarriage of justice arising from the direction because: … [the trial judge’s] careful directions as to the onus and standard of proof, the need for separate consideration of each count, the elements of the offences, the need to accept the evidence of the complainant as to the occurrence of each count, and the direction that the tendency, if proved, did not prove guilt of the offences but was ‘simply part of the process of reasoning along the pathway towards whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges’ …

This reasoning was applied by the Court in Wardell. Wardell concerned an appellant who had been charged with 10 counts of aggravated indecent assault and 13 counts of aggravated sexual assault against two complainants who had undertaken work experience with the appellant. The Crown relied on tendency reasoning, particularised as follows: (i) his tendency to have a particular state of mind, namely a sexual interest in young females aged between 16 to 19 years old; (ii) a tendency to act in a particular way, namely by acting on his sexual interest in young females aged between 16 and 19 years old by engaging in inappropriate sexual touching as well as sexually and indecently assaulting females in that age bracket who he was exercising authority and control over as their employer; (iii) a particular state of mind, namely a sexual interest in [the first complainant]; and (iv) a particular state of mind, namely a sexual interest in [the second complainant].

As in JS, the trial judge in Wardell had, consistently with the then Trial Bench Book, directed the jury to “decide whether [the appellant] did in fact conduct himself in the way that the Crown alleges” and “consider all the evidence and decide what conduct you are satisfied occurred” when determining whether to employ tendency reasoning: Wardell at [42]. This direction did not accord with the approach recommended in JS and adopted in Roder. However, the Court held that no miscarriage of justice had resulted because “when the summing up [was] read as a whole, there was no realistic possibility that in this case the onus and standard of proof were not understood and properly applied by the jury”: Wardell at [83]. Relevant to the Court’s conclusion in this respect was the fact that the tendency evidence related to a mixture of charged and uncharged conduct, two complainants and an additional witness: Wardell at [83].

That is not so in the present case. Rather, as in Hughes, Roder and Rassi, the tendency in the present case was expressed in terms which differed from the elements of the charged offences. Specifically, it would be possible for the jury to accept the existence of the tendency, and yet not be satisfied of guilt in respect of any particular count; and it would also be possible for the jury to find guilt in respect of any particular count, yet not find the tendency established.

Because the tendency evidence in the present case concerned multiple complainants, the tendency was not expressed by reference to any particular complainant by name. The present case also included a number of uncharged, as well as charged, acts. In these ways, in contrast to Decision Restricted, the tendency particularised in the present case did not “[replicate] the detail” of the particular allegations. These matters were central to the reasoning of the NSW Court of Criminal Appeal in Decision Restricted: Decision Restricted at [90]; see also New v The King [2025] NSWCCA 32 at [276]. Accordingly, the decision in Decision Restricted may be readily distinguished.

As outlined above, it was held in Roder that it is not necessary for a trial judge to direct a jury that they must exclude consideration of “so much of the tendency evidence relied on that consists of direct evidence of that charge”: Roder at [34]. In the present case, when explaining the tendency reasoning sought to be employed in respect of Count 1, the trial judge told the jury that “the prosecution says that that evidence comes from the evidence of the other complainants” (emphasis added). The effect of this direction was to excise from the jury’s consideration of any count on the indictment any evidence concerning complaints made by the same complainant. This direction potentially deprived the prosecution of some of the potential probative force of the tendency evidence. Although this conservative approach was arguably inconsistent with the approach enunciated in JS and Roder, it cannot have operated to the prejudice of the appellant.

Finally, in Roder, the High Court cautioned that a trial judge “should not direct or invite the jury to make findings in respect of charged conduct”: Roder at [37]. As can be seen from the extract at [128] above, the trial judge instructed the jury to “examine the question of whether those acts of the accused do establish the tendency that the prosecution says the accused has”. We do not consider that this instruction infringed the warning in Roder. The trial judge did not invite the jury to make any findings in respect of any particular count on the indictment, but instead invited the jury to “decide what acts of the accused you will take into account” when considering the tendency evidence. The trial judge did not make reference to any lesser standard of proof in this respect. The risk which gave rise to the warning in JS and Roder, of diluting or distracting from the directions concerning the onus and standard of proof, did not arise.

In any event however, we do not read the High Court’s decision in Roder as establishing a rule or prohibition against such an instruction, or as supporting the proposition that it will necessarily be a miscarriage of justice for a trial judge to invite the jury to make a finding in respect of charged conduct when the jury is considering whether to employ tendency reasoning. Rather, as the decisions of the NSW Court of Criminal Appeal in JS, Rassi and Wardell demonstrate, the relevant question is whether the directions given were apt to confuse the jury as to the appropriate burden and standard of proof. This question requires consideration of the whole of the summing up, in the context of the evidence and issues in the trial: Wardell at [87].

In the present case, the jury could not have been misled as to the onus and standard of proof. The trial judge provided the jury with a written Elements Document, which clearly instructed the jury that they could not find the appellant guilty of any count on the indictment unless the elements of each count were established beyond reasonable doubt. Those instructions were also repeated orally. The jury were also directed that they needed to give separate consideration to each count, and were specifically warned that that they could not find the accused guilty of any count on the indictment based on the tendency evidence alone. These directions were reiterated in the tendency direction itself, when the trial judge reiterated that the jury was required to be satisfied beyond reasonable doubt of the elements of each count.

Although the admission of the tendency evidence was objected to, counsel for the appellant did not raise any complaint about the tendency directions at trial. However, the issues raised by the appellant are important, and to the extent that the appellant requires leave to appeal under r 5332 of the Court Procedure Rules 2006 (ACT), that leave should be granted.

The appellant has not demonstrated that the tendency directions gave rise to a miscarriage of justice. It follows that this ground of appeal must be dismissed.

The Director’s written submission in support of this ground of appeal was briefly stated. The Director referred generally to the evidence concerning Count 8 as summarised earlier in her submissions, and contended that the sentencing judge’s finding ignored the apology that was made by the offender and was inconsistent with the sentencing judge’s reasoning concerning Counts 10 and 11.

The evidence that had been summarised earlier in the Director’s submissions included Ms Welch’s account of Counts 5 and 7. The Director did not contend that the sentencing judge had been wrong to proceed on the basis that the acts the subject of Counts 5 and 7 (the offender’s touching of Ms Welch’s breasts and rubbing his penis between her thighs) had occurred, but that the jury had concluded that the offender did not know that Ms Welch did not consent to those acts. Indeed, as outlined above, that was one of the ways that the Director invited this Court to reconcile those verdicts.

As the sentencing judge recognised, given that the offending occurred before the change in the law of consent on 12 May 2022, the offender was to be sentenced on the basis that he was reckless as to consent, and not on the basis that the offender held an honest, but an unreasonable, belief as to consent. The sentencing judge correctly explained to the jury in his summing up, recklessness is established where it is proved that an accused “didn’t even think about whether [the complainant] was consenting”.

When viewed in the context of activity which the offender honestly believed to have been consensual, it was open to the sentencing judge to conclude that the offender was reckless as to consent, as that concept is understood at law, even accepting that Ms Welch had expressed her lack of consent both verbally (by saying “what are you doing?”) and physically (by attempting to push the offender away).

Nor does the offender’s apology support the Director’s contention. Ms Welch gave evidence that the offender had messaged her following Count 8, and had “apologis[ed] for what he did” and said that he “didn’t actually know that it went in”.

The sentencing judge’s factual finding concerning the offender’s state of mind was open. It follows that this ground of appeal must be dismissed. Whether a conviction with no further penalty is an available sentencing option at law

The second alleged patent error concerned Count 2. As noted above, the sentencing judge imposed a conviction with no further penalty in respect of this offence. The Director contended that this disposition, that is, a conviction with no further penalty, is “not an available sentencing option at law”.

In the ACT, there is no equivalent to provisions such as s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that: (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

The Director submitted that in the absence of an equivalent provision to s 10A in this jurisdiction, the Court has no power to impose a conviction without a further sentence. The Director contended the “sentencing options are set out exhaustively in Chapter 3 [of the Crimes (Sentencing) Act 2005 (ACT)]”. She pointed in particular to s 9 of the Crimes (Sentencing) Act, which states that: The penalty a court may impose for an offence is the penalty provided under this Act or any other territory law. (emphasis added)

The Director also observed that the note to s 9 sets out the options available to the Court, including imprisonment, intensive correction order, suspension, good behaviour orders, reparation orders and the like. She submitted that s 9, and the note to that provision, indicated a legislative intention against the availability of the imposition of a conviction with no further penalty.

In response, the offender submitted that the scheme of the Crimes (Sentencing) Act “reposes considerable discretion in how courts impose sentences”. He submitted that this discretion is exemplified by ss 33 and 133D, which provide that, “in deciding how an offender or young person should be sentenced (if at all) for an offence” (emphasis added), the Court is to take into account a list of specified considerations. The offender submitted that it followed from the wording of these provisions that “there will be cases where a person has been convicted of an offence but not sentenced”.

This issue has been the subject of differing views at first instance. In Saunders v Crowe [2010] ACTSC 78, Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 and DPP v Higgins (a pseudonym) [2024] ACTSC 225, conviction only orders have been entered. However, in Burge v McCarron [2011] ACTSC 87, Refshauge J held that neither the Crimes (Sentencing) Act, nor the common law, permitted such an order.

In support of the proposition that the common law does not permit an order to be made convicting an offender, with no further penalty, Refshauge J relied on the decision of the High Court in Pearce v R [1998] HCA 57; 194 CLR 610: Burge at [27]. With respect to his Honour, the High Court’s decision in Pearce was not concerned with the question of whether a conviction with no further penalty was required at law; rather, it was concerned with questions of concurrency and accumulation where an offender was being dealt with for offences with overlapping elements. The High Court held that it was necessary for the sentencing judge to separately fix the appropriate sentence for each individual offence: Pearce at [49]

In any event, regardless of whether a conviction with no further penalty is permitted at common law, such a penalty is permitted in this jurisdiction pursuant to the Crimes (Sentencing) Act.

As the offender submitted, the text of the Crimes (Sentencing) Act differentiates between the stages of a finding of guilt, the imposition of a conviction and the imposition of sentence (or penalty). Importantly, each of the sentencing options for which provision is made by the Crimes (Sentencing) Act applies where an offender has been “convicted” of the offence. For example: (i) Section 10 (relating to sentences of imprisonment) applies where “a court is sentencing an offender convicted of an offence punishable by imprisonment”; (ii) Section 11 (relating to Intensive Correction Orders) applies where “an adult offender is convicted of an offence and the court imposes a sentence of imprisonment”; (iii) Section 12 (relating to suspended sentences) applies where “(a) an offender is convicted of an offence; and (b) the court sentences the offender to imprisonment for the offence”; (iv) Section 12A (relating to Drug and Alcohol Treatment Orders) applies where the Supreme Court convicts the offender of an eligible offence and sentences the offender to a term of imprisonment of a specified length; (v) Sections 13 and 14 (relating to good behaviour orders and fines) apply where “an offender is convicted or found guilty of an offence”; and (vi) Section 19 (relating to reparation orders) applies where an offender is convicted or found guilty of an offence against a territory law; and a person has suffered loss or incurs expense as a direct result of the commission of the offence.

In the typically sparse language which is common to statutes of the ACT, there is no express power conferred on the Court to enter a conviction upon a finding of guilt. Rather, s 17 provides for a discretion for the Court to decline to enter a conviction, despite a finding of guilt. Section 17 relevantly states: 17 Non-conviction orders—general (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13.

Section 17 is a strong indication that the power of the Court to enter a conviction upon a finding of guilt exists apart from any express provision of the Crimes (Sentencing) Act, and indeed, will follow from a finding of guilt unless the Court exercises the discretion conferred by s 17 to make a “non-conviction order”. The sentences, or “penalties”, set out in provisions such as ss 10, 11, 12, 12A, 13, 14 and 19 of the Act are then enlivened upon the entry of a conviction, or the making of a “non-conviction order” under s 17.

As the offender submitted, the discretionary language in each of the provisions, and in ss 33 and 133D of the Crimes (Sentencing) Act, confirms that the Court retains a discretion to determine not to impose a penalty or other sentence following entry of a conviction.

Accordingly, read within the context of the Act as a whole, it is clear that s 9 of the Crimes (Sentencing) Act does not preclude the Court from entering a conviction and imposing no other penalty.

This construction also accords with the purpose of the Crimes (Sentencing) Act, which is to provide the court with a broad range of sentencing options. There is no reason to adopt a construction that denies the Court a discretion to impose a conviction with no further penalty. As the trial judge observed, it is open to the Court to convict an offender and to then sentence the offender to the rising of the Court. However, such a disposition is only available where the s 10 threshold is crossed (that is the Court must be satisfied, having considered possible alternatives, that no other penalty is appropriate). It would be a curious outcome if an offender who had committed a less serious offence was effectively denied this sentencing option. Such an irrational construction of the statute should be avoided: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [45].

In short, a construction of the Crimes (Sentencing) Act which permits a sentencing judge to impose no further penalty following the entry of a conviction accords with the text, structure and purpose of the Crimes (Sentencing) Act.

This ground of appeal must be dismissed.

Further, as the Court of Appeal held in MT v R [2021] ACTCA 26; 17 ACTLR 22 at [84]: … when sentencing young offenders, the sentencing purpose of rehabilitation is infused into all aspects of the sentencing exercise and may legitimately take precedence over sentencing purposes that speak to the community’s needs (such as general deterrence and denunciation) rather than to the circumstances of the individual offender (such as rehabilitation and personal deterrence).

Taking full account of the above principles, the sentence that was imposed upon the appellant, which included a period of full-time imprisonment, was open to his Honour.

This ground of appeal must be dismissed. Orders

For the above reasons, the following orders were made: (1) The appellant is granted leave to appeal under r 5332 of the Court Procedure Rules 2006 (ACT) in regard to the tendency directions given at trial. (2) The appellant’s appeal against conviction is dismissed. (3) The Director of Public Prosecutions’ appeal against the sentence imposed is dismissed.