R v MT [2014] ACTSC 162

Attorney-General (Tas) v B, KT [2010] TASCCA 6

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Coleman v The Queen (1990) 47 A Crim R 306

Director of Public Prosecutions v DJK [2003] VSCA 109

Director of Public Prosecutions v Riddle [2002] VSCA 153

Greenwood v The Queen [2014] NSWCCA 64

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v AM (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 28 March 2014)

R v Ashman [2010] ACTSC 45

R v Ballantyne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 1 April 2014)

R v Boudelah [1991] FCA 124; (1991) 28 FCR 176

R v Buckley (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 30 August 2013)

R v Buda-Kaa (Unreported, Australian Capital Territory Supreme Court, Burns J, 30 November 2012)

R v Buda-Kaa [2013] ACTCA 46

R v Dixon (1975) ACTR 13

R v Dodd; R v O'Rafferty (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 25 July 2013),

R v Dowlan [1998] 1 VR 123

R v FD [2006] NSWCCA 31; (2006) 160 A Crim R 392

R v Gordon (1994) 71 A Crim R 459

R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1

R v JJ (Unreported, Australian Capital Territory Supreme Court, Refshauge ACJ, 8 October 2013)

R v Joyce (Unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014)

R v King [2013] ACTSC 279

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

R v TW (Unreported, Australian Capital Territory Supreme Court, Burns J, 15 November 2013)

Simpson v The Queen [2014] NSWCCA 23

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

1. MT be convicted of sexual intercourse without consent on 11 January 2009.

2. MT be sentenced to two years' imprisonment to commence on 15 May 2014.

3. A non-parole period of nine months be set to commence on 15 May 2014 and end on 14 February 2015.

1. After attending a birthday party for his cousin on 10 January 2009, the prisoner, MT, went into Civic with his cousin and a number of other people, including the complainant.

2. Early in the morning of the next day, he and the complainant returned to where they were both staying and he engaged in penile vaginal intercourse with the complainant. She said that she had been asleep at the time and did not consent to the sexual intercourse.

3. MT was arrested and charged with engaging in sexual intercourse with the complainant without her consent and being reckless as to whether she had consented.

4. He was committed for trial on 22 August 2013 and the trial commenced on 17 March 2014 before me and a jury. On 24 March 2014, MT was found guilty of the offence by the jury.

5. Engaging in sexual intercourse without consent and being reckless as to whether the complainant has consented is an offence against s 54(1) of the Crimes Act 1900 (ACT) which provides for a maximum penalty of twelve years' imprisonment. It is, by this yardstick to which the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31] has required courts to have regard, a serious offence.

6. For the purposes of sentencing, it is necessary for me to find the facts. They must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where MT relies on mitigatory facts, I need to find them on the balance of probabilities. These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 12-14; [14]- [18] and in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 635-6; [18].

7. I shall approach my task in that way. I was assisted by a statement from the prosecution of suggested facts to be found to which, apart from one or perhaps two issues, MT indicated his agreement. Nevertheless, it is for me to make the necessary findings but I can do so the more confidently because of this agreement.

8. MT lives in Melbourne. He travelled to Canberra for the birthday party. The complainant, a close friend of MT's cousin, lives on the New South Wales coast and also travelled to Canberra for the birthday party. They were both staying at his cousin's place while in Canberra. They did not know each other but met before the party. They had some contact at the party but, towards the end of the night, they joined others in going into Civic to continue partying. They both had quite a lot to drink during the evening.

9. MT was barred from entering the nightclub that the others in their party had decided to visit because of the shoes he was wearing. As a result, he and the complainant went to another nightclub. They were later joined by MT's cousin. MT and the complainant danced together and had some drinks.

10. Although she denied it, I am satisfied on the balance of probabilities that the complainant, during the dancing, behaved in a quite flirtatious manner towards MT. That, of course, does not amount to consent to sexual intercourse, nor justify MT assuming that she would consent to having sex with him.

11. The finding of flirtation was clearly not a circumstance of aggravation. Insofar as it was mitigatory, it may be said to have a very limited effect on the sentence, though it seems to be a part of the explanation that MT offered as to why he thought he could do what he did.

12. I have carefully considered the evidence. The complainant emphatically denied any activity that could be described as flirtatious. Both MT and his cousin, however, described it as happening. Indeed, this was the context in which his cousin introduced him to another girl who then joined their party. The complainant did acknowledge the presence of this girl.

13. Having regard to this evidence, I am satisfied on the balance of probabilities that the complainant was flirtatious but, as Mr K Lee, who appeared for the Crown, submitted, this was some hours prior to the commission of the offence.

14. The two of them became separated from MT's cousin and, after some hours wandering around Civic, they returned together to the place where they were staying. On the ride home they stopped for MT to buy some cigarettes. The complainant said that MT told her, "Your boyfriend is going to cheat on you. It is only a matter of time in that or you will cheat on him." She said that she was upset by the conversation. MT agreed that there was a conversation about her boyfriend but denied that she was irritated by it. She said she told him he did not know what he was talking about.

15. I saw the video from the taxi's camera which showed, not very clearly or completely, the trip home. MT and the complainant were not sitting close together and there was no apparent intimacy between them. At one stage, her hand was close to his thigh but to me it appeared that the complainant was simply putting her hand on the seat. Having carefully considered the matter, I am satisfied beyond reasonable doubt that the conversation about the complainant's boyfriend happened as she described it.

16. As they could not enter the house when they arrived home, they went into a room converted from a garage at the back of the carport. The complainant, fully clothed, lay down on the couch and went to sleep. She later awoke to find MT on top of her with his penis in her vagina. He was not wearing a condom. She said to him, "What are you doing?" and he said, "Don't worry babe, it's ok". The complainant froze.

17. MT must have known that she was not then consenting. He did not stop having intercourse until his phone rang and he answered it.

18. At no time did the complainant consent to having sexual intercourse with MT. As it began when she was asleep, he must have known this. MT's cousin came into the room later and let them into the house. The complainant then made a complaint to her.

19. When confronted, MT did not deny having intercourse with the complainant but said it was consensual and that the complainant was just upset because she had cheated on her boyfriend. She later went to the police in an obviously distressed state and MT was later arrested. He told police that the intercourse was consensual.

20. MT was born nearly twenty-five years ago in Victoria, the only child of his parents, though they each had children, but much older children, of previous relationships. MT was not close to his half-siblings.

21. He remained living with his parents until he was eighteen years old, when they separated in acrimonious circumstances including serious domestic violence on his mother by his father.

22. He was a good student at school and completed his senior schooling. He has been employed since leaving school. He has completed an Agent's Representative Certificate and has a real estate licence. He is presently employed at a real estate agency and appears to be a valued employee as his employer is prepared to re-employ him if he is incarcerated for these offences. Other than this, I had no specific evidence of his character.

23. MT is said to have no financial problems but I had no further information about his finances. MT currently lives with his mother and her new partner. He has a close circle of friends, none of whom engage in criminal activity.

24. MT is in good physical health and has never received mental health counselling. Unsurprisingly, he is somewhat depressed and anxious about the sentencing proceedings.

25. MT has a conviction for drink driving in 2013, but I do not regard that as relevant or of any significance to the sentence that I must impose. Indeed, the Crown conceded that he was entitled to leniency because of his lack of criminal record. I also note that MT, himself, volunteered that he had committed this further offence, of which the Crown did not otherwise know.

26. He experimented with marijuana on two occasions when younger but has not used illicit drugs since then. He regards himself as a social drinker, but sometimes drinks more than is appropriate. He says he does this to avoid the stress of the current proceedings. He was clearly affected by alcohol during the night of the offence.

27. MT expressed remorse for his actions to the author of the helpful Pre-Sentence Report. He also showed empathy with the complainant, being able to speak at length about the effects that his crime would have had on her.

28. This was to some extent, attacked by the Crown; Mr Lee pointed out that the Pre-Sentence Report relied entirely on MT's own statements. It has been suggested that, where an offender does not give evidence, such statements can only attract some limited weight. See R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at 377; [58].

29. I suggested that there may need to be some modification of that approach in R v Ashman [2010] ACTSC 45 at [27], though this was a somewhat different situation where the question of remorse was not something that could be confirmed in the way in which other matters in pre-sentence reports regularly are in this Territory.

30. The Crown further noted that MT had clearly showed a lack of credibility in his evidence. For instance, he had said that the complainant effectively started the sexual encounter by rubbing his penis. The verdict of the jury must require me to reject that.

31. Nevertheless, I am prepared to find that MT has some insight into his offending behaviour and understanding of the effect of it on the complainant, though the degree of remorse I can and do accept is limited.

32. MT agreed to participate in programs that may be mandated for him. The author of the Pre-Sentence Report considered the following: alcohol counselling because of his high level of intoxication at the time of the offence; an assessment for mental health treatment to address his depression and anxiety and his feeling of wariness about future relationships with women; an assessment for a Sex Offender Program.

33. The Pre-Sentence Report assessed MT as having good prospects for rehabilitation in the community.

34. As Fox J said in R v Dixon (1975) ACTR 13 at 16

Rape is a crime which comprehends an immensely wide variety of circumstances and many degrees of culpability.

35. It is, nevertheless, a very serious offence and, as Gallop J remarked in R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 186

But in the case of sexual offences the voice of the community, through legislation enacted by Parliament, expresses its abhorrence.

36. The offence interferes with the bodily integrity of the victim and, of course, undermines the freedom of women to move about in our society. It induces fears about the security of women and often has long-term and serious psychological consequences.

37. Nevertheless, within this very serious class of offence, there are levels of seriousness itself. All the surrounding circumstances must be considered to determine the objective seriousness, as remarked in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2. In this case, for example, there was an absence of many of the aggravating factors that are, regrettably, found in such cases. Thus, there was no violence associated with the offence, though sexual intercourse without consent is regarded by many as violence against the female victim in itself.

38. The somewhat predatory behaviour of engaging in the act while the complainant was asleep is relevant, as is the fact that MT continued the sexual intercourse, despite the complainant making it clear that she did not consent when she awoke. It was, however, somewhat situational or spontaneous, rather than targeted as in Director of Public Prosecutions v Riddle [2002] VSCA 153.

39. There was only one offence committed and there was no additional humiliation inflicted on the complainant, though she was severely distressed by the experience and the invasion of her bodily integrity was humiliating in itself, as was clear from her Victim Impact Statement. See Greenwood v The Queen [2014] NSWCCA 64 at [32]. Understandably, penile/vaginal penetration is a serious form of the offence. Though there is said to be no ranking of types of sexual intercourse without consent (Greenwood v The Queen at [29]), it has generally been regarded that digital penetration is less serious than penile penetration (R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 at 15; [56]), though the circumstances must be considered. In this case, the absence of a condom made the offence more serious.

40. The seriousness of the offence means that ordinarily a conviction for such an offence will require a custodial sentence. In this case, there was a kind of breach of trust. While MT had no particular responsibility for the complainant, she obviously considered that he was sufficiently trustworthy to travel home with him alone in the taxi and to stay in the room with him and go to sleep. That trust he abused.

41. Mr R Thomas, who appeared for MT, submitted that the seriousness of the offence was moderated by the circumstances under which it was committed. He referred, rather inaptly, to s 33(1)(q) of the Sentencing Act. I do not think there is anything here to activate that provision. He was really referring to the flirtation that I had earlier described which, he submitted, would have led MT to misunderstand the attention of the complainant to him, exacerbated by his degree of intoxication.

42. Mr Lee submitted that this should be rejected. Although he initially submitted that I should not find that there had not been any flirtation, I have not done so and he pointed out that, in any event, it had been in the context of dancing at a nightclub, which occurred quite some hours beforehand. Such intimacy was not repeated in the taxi ride home. He also relied on the complainant's subsequent irritation with MT in his, at least, insensitive remarks about her boyfriend which must have erased any suggestion of any receptiveness of the complainant to sexual advances by him.

43. Mr Lee also relied on the fact that MT gave evidence that he had had his last drink at the nightclub. That he and the complainant had been wandering around Civic for "a number of hours", ultimately arriving home at about 5:00 am and that, by this time, he agreed that he had "definitely" sobered up a fair bit.

44. In assessing the seriousness of the offence, I note that it was opportunistic and not pre-meditated. It is also relevant that the offence was not a short invasion of the complainant's bodily integrity. The complainant could not, of course, say how long MT had been having sex with her before she awoke but he did not cease when she first spoke to him in words that must have made it clear to him that she was not consenting. Indeed, he did not stop until he answered his phone. This made the offence somewhat more serious.

45. The complainant was clearly distressed and she continued to be affected by the crime, as was evident from her demeanour in the witness box both at trial and on sentence.

46. While this offence is clearly at the lower end of seriousness for such an offence, it is by no means at the lowest end and there are factors of seriousness involved.

47. I had Victim Impact Statements from the complainant and her father. Both chose to read them to the court, as is their right, under s 50 of the Sentencing Act. This has the advantage that an offender can hear directly from victims of the harm that his crime has caused. It was obviously very difficult for the complainant to do that. She was very distressed in the witness box and had to stop a number of times. She expressed fear of the consequences of making such a statement and her ongoing insecurity where she said she could no longer move about her life without fear.

48. She had been fundamentally changed and the insecurity pervades her life. She runs from her car to her work, she locks the door behind her, she refuses invitations from friends, she looked for a job in an office where there were no male employees. She has to have a phone with her at all times and has to walk with others and not alone; this has become embarrassing for her. She suffers panic attacks as well as an underlying feeling of nervousness.

49. She looked for an apology from MT, suggesting that "an apology would help [her] to heal". None has been forthcoming.

50. She has had to undergo counselling, but she still experiences nightmares and wakes sweating.

51. Her father spoke of the pain at hearing his daughter's call to him to tell him of the offence. He also spoke of the real and significant impact of the crime upon her. He has watched her try to be strong but to fail and has been helpless in his obvious wish to ease her pain.

52. He spoke of her extended period of counselling. He referred to the way the offence had deeply affected her and he said that she experiences real fear at the possibility of seeing MT in the street.

53. He spoke, too, of his helplessness and anger and the emotion he feels at seeing his daughter in such pain. As he said, no father should have to go through this, for a father's role is to nurture and protect children and this has brought him a sense of failure.

54. I rejected one paragraph of his Statement. It is not appropriate in such a statement and is, in my view, not contemplated by Pt 4.1 of the Sentencing Act for a victim to make comments on the sentence to be imposed. It is not, in reality, a reflection of the harm suffered by a victim. As I have said before those who assist victims to compose such statements should take care to see that the statutory constraints are observed, else there is a danger that the value of such statements will be undermined. See R v JJ (Unreported, Australian Capital Territory Supreme Court, Refshauge ACJ, 8 October 2013) at 7-8.

55. The purpose of such statements has been carefully explained by Charles JA in R v Dowlan [1998] 1 VR 123 at 140 as follows

The evident purpose of the 1994 legislation was to give victims of crime an opportunity to place before the courts their own statement of the impact a crime has had upon them and their families and in doing so both to involve the victims in the working of the criminal justice system and to ensure that judges are educated as to the consequences of the crimes with which they are concerned in sentencing.

56. See also Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] per Vincent JA.

57. While a Victim Impact Statement, because of the identification of the harm done to a victim, which in many cases is very relevant to the sentence to be imposed (see s 33(1)(e) of the Sentencing Act) can result in the increased severity of a sentence (Attorney-General (Tas) v B, KT [2010] TASCCA 6 at [56]), it must not result in unfairness in the ways suggested by the NSW Court of Criminal Appeal in R v FD [2006] NSWCCA 31; (2006) 160 A Crim R 392 at 414; [98]- [101].

58. Such statements are, of course, not the only method by which a court can be informed of the harm done to a victim and, in some cases, the Court will be aware of at least the general nature of the harm suffered or, at the very least, the likely harm by offences.

59. The Court acknowledges the pain of and continuing hurt to the complainant and her family and hopes that, while it cannot resolve their problems, the sentencing today will help to give some closure to them and that they will be able to make progress to a more normal and fulfilling life.

60. Section 33(1)(za) of the Sentencing Act requires the court to take into account current sentencing practice. This has recently been echoed by the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323, where it was said by French CJ, Hayne, Kiefel and Bell JJ at 331; [38]:

If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.

61. The parties referred me to a number of decisions to which they considered I should have regard. The decision said to be closest to this case was R v Ballantyne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 1 April 2014). In that case Mr Ballantyne had been found guilty by a jury of one count of sexual intercourse without consent. The incident followed a birthday party where both victim and offender were present. The victim went to sleep and awoke to find that Mr Ballantyne had digitally penetrated her vagina. The effects on the victim were serious and similar to those of the complainant here.

62. Mr Ballantyne was nineteen years old at the time of the offence and was described as immature and naive and he had no relevant criminal history. He came from a difficult and disadvantaged background. He was in a relationship and his partner was pregnant. Although the court received, presumably in a Pre-Sentence Report, but the reasons for sentence do not so state, an assessment of recidivism as moderate to high, the court did not appear to accept that, although it was not unambiguously so stated.

63. The offence was agreed to be at the bottom end in terms of objective seriousness. The Court described the offence as follows:

the intercourse was brief, digital intercourse. It was only one incident and fleeting.

64. The only matter of seriousness described by the Court was the age of the victim, who was seventeen, almost eighteen. Mr Ballantyne, however, did not acknowledge that he had committed the offence.

65. Mr Ballantyne was sentenced to eighteen months' imprisonment, for the first six months of which the court set a period of periodic detention, the balance being suspended and a good behaviour order was made.

66. Mr Thomas submitted that this case was on all fours with the offence committed by MT and his personal circumstances and so a consistent sentence should be imposed. There were, however, some differences. The intercourse in this case was by no means fleeting and MT persisted after it had become clear that the complainant was not consenting. That makes it significantly more serious an offence.

67. Further, the circumstances were that the complainant was in the room with MT in circumstances where she was entitled to feel safe. While MT reported a traumatic event of domestic violence when his mother was stabbed by his father, he had a generally supportive childhood without disadvantage or deprivation. Also, he could not be described as naive and immature.

68. Mr Thomas referred to a number of other cases, perhaps because they were reasonably recent, but the factual circumstances of the offences and personal circumstances of the offenders in most of those cases seem quite different from this case suggesting that they were not really relevantly comparable.

69. The offence in R v AM (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 28 March 2014) involved digital penetration by a seventeen year old offender of a thirteen year old girl and fellatio with another thirteen year old girl. The offender also committed an act of indecency on each of the victims. He pleaded guilty. It was difficult from the sentencing remarks to ascertain what sentence was imposed for which offence but doing the best I can it seems likely that for the two offences of sexual intercourse the offender was sentenced to eighteen months' imprisonment (reduced from two years for the plea of guilty) and two years and three months' imprisonment (reduced from three years for the plea of guilty). The two years and three months' imprisonment reduced from three years for the plea of guilty, the age of the offender and the circumstances of the offences make for little comparability.

70. Reference was also made to R v King [2013] ACTSC 279 but, again, the circumstances were very different both as to the offences and as to the circumstances of the offender. The same applies to R v Joyce (Unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014) and R v TW (Unreported, Australian Capital Territory Supreme Court, Burns J, 15 November 2013) which latter case was described in the sentencing remarks as "unusual" and "an exceptional case."

71. These were contrasted with two New South Wales cases, Simpson v The Queen [2014] NSWCCA 23 and Greenwood v The Queen but, apart from helpfully identifying some principles, these cases are difficult to apply in this Territory because of the difference in the sentencing regime in that State.

72. Mr Thomas, however, did refer to one case which was also relied upon by the Crown, namely R v Buda-Kaa (Unreported, Australian Capital Territory Supreme Court, Burns J, 30 November 2012), the sentence in which was upheld on appeal: R v Buda-Kaa [2013] ACTCA 46. In that case, the victim fell asleep and Mr Buda-Kaa, who was twenty-two years old with a significant criminal history, came into her bedroom and touched her breast and digitally penetrated her vagina.

73. He was, for the sexual intercourse, sentenced to three years' imprisonment. The sentence for the acts of indecency were made concurrent and a non-parole period of one year and six months was set. Mr Buda-Kaa had significant mental health issues. This is a more serious case than the present case.

74. The Crown relied on other cases where sexual intercourse took place when the victim was asleep. In R v Buckley (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 30 August 2013) acts of digital penetration and cunnilingus were performed on the originally sleeping victim. There were elements of deceit and predatory behaviour involved. The sentence for acts of sexual intercourse was five years' imprisonment, concurrent with the other offences the sentences for the other offences and with a non-parole period of two years and six months. It, too, was a much more serious case than this.

75. In R v Dodd; R v O'Rafferty (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 25 July 2013), the offenders, both with criminal records, committed cunnilingus in one case and penile/vaginal intercourse in the other case with a sleeping victim aged sixteen years. The Court found there was no remorse and could not find that there were good prospects of rehabilitation for either offender. The sentences imposed were seven years' imprisonment for the penile vaginal intercourse and five years' imprisonment for the cunnilingus. The offence charged was a more serious offence with a more serious maximum penalty because they were committed in company. There is little comparability in this case.

76. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I note that, while over eighteen years old, MT was nineteen and a half years old at the time of the offence; he is still relatively young and youth is a mitigating factor even though he is an adult, though a young one. See R v Gordon (1994) 71 A Crim R 459 at 469.

77. I also note that MT had been intoxicated during the evening. Almost invariably, intoxication, which may explain an offence, cannot be considered mitigatory, as explained in Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38 at 44; [20]. It can, however, be relevant to determine the degree of deliberation involved in the crime as noted by Hunt CJ at CL in Coleman v The Queen (1990) 47 A Crim R 306 at 327.

78. As I have noted, MT considered that he had sobered up a fair bit by the time of the offence which limited the contribution that his intoxication made to his judgement before he had sexual intercourse with the complainant. I am, however, not prepared to disregard it altogether. I accept that his judgement was adversely affected to a slight degree.

79. I take into account the nature and seriousness of the offence as I have described it. Clearly, this requires some reliance on general deterrence and denunciation. In an offence such as this, it is important to make MT accountable for his actions and to recognise the harm done to the complainant.

80. While the offence was at the lower end of objective seriousness for the offence, it is still a serious offence which was a significant violation of the complainant who continues to suffer from the offence. I accept, too, that this was a single offence and not part of a course of conduct by MT.

81. I also take into account the subjective circumstances, including his background, age, antecedents and health of MT as I have described them above.

82. His absence of any relevant criminal record means that I can afford him the leniency that would generally be denied an offender with a significant and relevant criminal history.

83. I take into account, as I am required to do, the Victim Impact Statements and the harm done which is disclosed in them as having been suffered from the offence and the effect on the complainant and her family.

84. I accept that MT has shown some remorse and understanding of the harm he has caused, though that must be quite limited by the plea of not guilty and his attitude and evidence at trial which was that the sexual intercourse was consensual but the complainant was motivated by the fact that she had, by engaging in consensual intercourse, cheated on her boyfriend.

85. He is not, of course, to be punished for pleading not guilty but that denies him the leniency that a plea of guilty ordinarily affords and is relevant to his credibility.

86. I take into account sentencing practice as I have discussed above.

87. I accept that he has excellent prospects of rehabilitation, which is very relevant to the structure of the sentence to be imposed. I note that his employer said he would hold his job for MT were he to be incarcerated. It was suggested that part of the sentence could be served by periodic detention. I have a report that MT is not suitable for that form of imprisonment because he lives and works in Melbourne. I could set a period of periodic detention notwithstanding that.

88. It was submitted that he could relocate for any such period to Canberra for the time within which a term of imprisonment would be served by periodic detention. He could seek accommodation perhaps initially staying with his aunt and uncle and then in his own self-funded accommodation and apply for employment.

89. He was said to have sufficient funds to do so. These were assertions made by his counsel and they were contested by the Crown where Mr Lee pointed out some difficulties with some of the assertions.

90. I have given careful thought to this matter and consider that a period of full time custody is required. In the circumstances, I do not accept that periodic detention is feasible. I have reduced the non-parole period. I consider that this is an appropriate response to the problem as well as to his significant prospects of rehabilitation and all the other factors I am required to take into account.

1. I convict you of sexual intercourse without consent on 11 January 2009.

2. I sentence you to two years' imprisonment to commence on 15 May 2014.

3. I set a non-parole period of nine months to commence on 15 May 2014 and end on 14 February 2015.

4. I recommend to the Sentence Administration Board that if they release you on parole they arrange for you to participate in an Adult Sex Offender's Program.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Paul Edmonds & Associates