CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentencing -engaging in sexual intercourse without consent - multiple incidents - offender guilty following a trial by jury - lack of remorse - specific deterrence - substantial criminal history albeit no prior sexual offences - sentenced to a period of imprisonment

1. The offender Craig Joseph Stevens was convicted after a jury trial of four counts of engaging in sexual intercourse without consent pursuant to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty for each such offence is imprisonment for 12 years.

2. The offender met the complainant in early May 2015 via an online dating site called "Plenty of Fish". The offender said that he had been staying at friends' houses and the complainant said that he could stay with her while he was looking for somewhere to live. The complainant lived with her four children. She was separated from the father of the four children.

3. The complainant had explained to the accused that she had a bad sexual experience and as a result had to have surgery on her bowels in December 2014. She explained to him that her anus was a "no go area."

4. On 29 May 2015, after a social event involving drinking and a fire in the backyard, the couple engaged in consensual sexual intercourse.

5. She gave evidence about the nature of the sexual activity that the parties were engaged in foreplay, including the use of a dildo, and then vaginal intercourse. The sex was described as rough in the sense of involving rapid movement and more than usual force. During that intercourse the accused withdrew his penis from the complainant's vagina. She thought that he was going to use his hand to guide his penis back into her vagina. However, he then forced his penis into her anus. She jumped off the bed and cried out. The complainant said "I can't believe you did that! Why did you do that when you're not supposed to?" The accused said "I didn't mean to. I forgot."

6. The Crown established beyond a reasonable doubt that the offender was reckless in the sense that he knew that it was possible that in the light of what she had told him previously that she did not consent to any anal intercourse and that he penetrated her notwithstanding knowledge of that risk.

7. The second incident occurred on 31 May, the Sunday after the first incident. The victim's children had been spending time with their father and the victim suffered an anxiety attack. She had a shower to help calm herself down and was lying on her bed waiting for a message from the children's father to say that they were on their way home. The offender lay down on the bed beside her. He developed an erection. He grabbed her hand and put it down his pants so as to encourage her to rub his penis. She rubbed his penis for a couple of minutes. She then received a message from her ex-husband saying that he would be bringing the kids home soon. The offender then put his hand under her head so as to lift her up into a sitting position and guide her head towards his crotch. She started to perform oral sex by sucking his penis. The offender maintained one hand behind her head. He then put his other hand on the back of her head. She was crying.

It wasn't - it's hard to explain to anybody that doesn't have anxiety or has these issues and has been through some of the things that I've been through in my life, but I ended up in a submissive feeling. It was an out of body sort of experience. I didn't want to cause any more problems. I just did what I felt I needed to do just to make him happy.

What drove you to continue that intercourse? --- Like I just explained, I was put in a situation, I didn't want to start a confrontation. I was already in a bad headspace about him, about my fears of him, being scared of him and wanting to end the relationship in the first place, so I knew the kids were coming home and I was just focusing on just trying to keep everybody happy and trying to keep the house safe and calm and that's where my motivation was in that.

10. She didn't want to continue. She tried to pull away and he put both hands of the back of her head to hold her head down. She started gagging. He kept his hands on the back of her head. This continued for a few minutes until he ejaculated. During the course of the oral sex, she had given a little bite so as to give him the impression that she didn't want to do it and he hit the back of the head with an open hand, which she understood as a warning not to bite. He ejaculated in her mouth and she spat the seminal fluid out back onto him

11. I find that from the point at which she attempted to pull away or the time at which she gave the bite on his penis, whichever was the earlier he knew she did not consent to the continuation of the sexual intercourse.

12. So far as counts 3 and 4 are concerned, these offences occurred on 15 June 2015 and occurred in rapid succession, and I will deal with them together. The evidence of the complainant was that the accused had gone to a party, and she had collected him. He needed some assistance to get to the car, he was intoxicated and stumbling.

13. When he came into the house he "roused" at the kids in some way. The complainant had hoped to settle him down and that he would go to sleep and sleep off whatever he was suffering from. But he didn't settle down. He refused to eat the food that she provided for him. He was attempting to get an erection and after some period he pinned her to the bed and inserted more than one finger in her vagina and then in her anus. Her evidence was that she was crying out to him to stop and that the incident only stopped when she fell off the bed. I find that the offender then knew that the victim did not consent to either act of sexual intercourse. These incidents occurred in her home when her children were present, and of one of the children, UD, was conscious of the incident if not the specific details.

14. A victim impact statement was read in Court. The impacts described in that statement are consistent with the impacts that would be expected from a person in the position of the victim having regard to what had happened. She described herself as being fearful of everything. Her sense of self worth was gone. She lost trust in other people and was reduced to feeling suicidal. She suffered disturbed sleep and nightmares. She found it more difficult to accept affection.

15. She also reported an impact upon her child, UD, who suffered nightmares of being attacked by men and was unwilling to sleep in her own bed, sleeping at the end of her mother's bed, or on the floor where she would feel safe, for 10 or more months.

16. Both have undertaken psychological therapy over the last two years. She records that her daughter's nightmares have lessened and she has regained her confidence. The victim says that she has now found peace through faith in God and was able to forgive the offender.

17. It is clear, having regard to the maximum penalty set by the legislature, that offences of sexual intercourse without consent are serious.

18. In relation to the first incident, I consider that it is at the low-end of the objective seriousness having regard to the context in which it occurred, namely as a nonconsensual continuation of consensual rough sex.

19. The second incident falls within the low- to mid-range of objective seriousness because there was some apparently consensual, if unenthusiastic, masturbation and oral sex. The continuation of the intercourse was nonconsensual and involved exploitation by the offender of the emotional vulnerability of the victim and a minor element of physical coercion.

20. In relation to the third and fourth incidents, those are in the mid- to high-range of objective seriousness, in that while they involve a relatively brief incident, they involve physical domination over a person who has expressly not consented. They were acts of sexual violence involving domination of the victim rather than sexual gratification on the part of the offender. They occurred in the complainant's home in close proximity to her children, one of whom was sufficiently aware of what was going on to be upset. The whole incident involved exploitation of the kindness of the victim in looking after him when he became intoxicated at a friend's house.

21. The offender is aged 37 years. His parents separated when he was about eight years old and he described a stable childhood. He commenced a relationship in 2003 which has produced two children. That relationship was marred by alcohol and illicit substance abuse and ended in 2009. He commenced another relationship in 2009 which produced another child. That relationship ended in 2012. He acknowledged to the author of the pre-sentence report that he had maintained the relationship with the victim in order to enable him to stay at her house.

22. The offender did not complete Year 12 at school, leaving shortly before its conclusion to work as a mechanic. He has been predominantly unemployed since he sustained an injury in a motorcycle accident in 2003. Since that period he has done some work in retail outlets, such as JB Hi-Fi and Bing Lee, although no detail was provided of that employment either to the author of the pre-sentence report or to the Court. He receives the Disability Support Pension. He has a history of drug abuse, commencing alcohol, amphetamine, and cannabis use at approximately 18 years of age. The offender abused alcohol significantly between the ages of 18 and 22 years old. He consumed cannabis daily up until 2010. He claimed to the pre-sentence report author that he had given up all illicit substances.

23. He has been reviewed on multiple occasions by ACT Health when presenting with pain in his lower left leg, the result of injuries he received in the motorcycle accident. He has had some contact with government mental health services.

24. The author of the pre-sentence report recorded that he claimed he had been wrongly accused of the charges before the Court. The author of the report says "it is of significant concern that he does not accept responsibility for the current offences and believes he is the victim of vexatious allegations." This indicates a lack of remorse and a need for specific deterrence, and a reduced potential for rehabilitation. He is assessed as being at a moderate to low risk of similar reoffending.

25. The offender has a substantial criminal history but it is dominated by motor vehicle related offending. In 2005 he was given suspended sentences of imprisonment in relation to drink driving and driving while disqualified. In 2006 he was given a suspended sentence for driving while disqualified. In 2007 he was convicted of driving whilst disqualified, drink driving and dangerous driving. On appeal he was resentenced so that his sentence was suspended after serving 50 days of a three month sentence. In 2012 he was convicted of a Commonwealth offence described as "obtaining a financial advantage" and given a three month suspended sentence. Following a breach of the good behaviour order, he was resentenced to five months of periodic detention. He was also convicted of drink-driving and sentenced to a concurrent period of five months periodic detention. On the same day he was given a suspended sentence of imprisonment for driving while suspended. In January 2014 he was convicted of dangerous driving, driving while disqualified, level four drink-driving, and resentenced on an earlier sentence of driving while suspended. He received a total sentence of 13 months imprisonment with a nonparole period of eight months.

26. Thus, while the offender is not of good character and has demonstrated disregard for his legal obligations, he has not committed sexual offences of this nature previously.

27. His mother Christine Anne Brady gave evidence, most particularly in relation to the offender's children. He has not seen his children since being remanded in custody. A sentence of imprisonment will have a significant impact on his children. There was not any detailed evidence about the parenting role he played in relation to those children prior to being remanded in custody. The evidence was that his parenting role was shared in some way and it appears that he is not the primary carer for any of those children. I accept that a sentence of full-time imprisonment will have an impact on his children, particularly having regard to their stage of development.

28. Also tendered in relation to sentencing was a certificate indicating that whilst in prison he has completed an alcohol and drug awareness course.

29. Two references were also tendered; one from his sister Catherine and one from his uncle Robert. Those references go to their observations about his relations with women and his behaviour generally. I take both of those into account.

30. Because of the seriousness of the offending conduct, I am not satisfied that any punishment other than a sentence of imprisonment would be appropriate. Further, I am not satisfied that I should make an order suspending that sentence of imprisonment or requiring that it be served by way of an intensive corrections order. Having regard to the sentence that I will impose, an intensive corrections order is not, in any event, available.

31. I will make the sentences that I impose upon incidents three and four concurrent with each other as they relate to the same incident and are very closely related acts of intercourse.

32. In relation to counts one and two, they each involve a separate incident and that is a factor that tends against their concurrency, however, I am satisfied that some concurrency needs to be introduced in order to reduce the overall sentence, having regard to questions of totality.

33. I therefore make the periods of imprisonment between counts one and two concurrent as to 12 months, and between count two and counts three and four concurrent as to six months.

34. The offender has spent 192 days in custody attributable to these offences. I will backdate the defendant's imprisonment to take that time into account; that gives a backdate date of 13 January 2017.

35. In my view the following sentences are appropriate: on count 1, a sentence of 24 months imprisonment; on count 2, a sentence of 26 months imprisonment; and on each of counts 3 and 4, a period of imprisonment of 36 months.

1. In relation to count 1, the offender is sentenced to 24 months imprisonment, commencing on 13 January 2017 and ending on 12 January 2019.

2. In relation to count 2 the offender is sentenced to 26 months imprisonment, concurrent to the extent of 12 months with the sentence on count 1, commencing on 13 January 2018 and ending on 12 March 2020.

3. In relation to count 3, the offender is sentenced to 36 months imprisonment, concurrent to the extent of six months with the sentence on count 2, commencing on 13 September 2019 and ending on 12 September 2022.

4. In relation to count 4, the offender is sentenced to 36 months imprisonment, wholly concurrent with the sentence on count 3, commencing on 13 September 2019 and ending on 12 September 2022.

5. The total sentence of imprisonment is five years and eight months. The

nonparole period is three years and four months commencing on 13 January 2017 and ending on 12 May 2020.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.