Director of Public Prosecutions v Ivanovski

[2025] ACTSC 237

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Ivanovski

Citation: 

[2025] ACTSC 237

Hearing Date: 

26 May 2025

Decision Date: 

6 June 2025

Before:

Burns AJ

Decision: 

See [34]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – non-consensual removal of condom during paid sexual service – ‘stealthing’ – intentional misrepresentation about use of condom negates consent – whether removal of condom premeditated – assessed at lower part of mid-range of objective seriousness – no prior criminal history – good work history – where offender continues to deny offending – no evidence to suggest that any underlying mental health condition affected offender’s ability to understand terms of victim’s agreement to sexual activity – period of full-time imprisonment imposed – partial suspension

Legislation Cited: 

Crimes Act 1900 (ACT) ss 54, 67

Parties: 

Director of Public Prosecutions ( Crown)

Aleksandar Ivanovski ( Offender)

Representation: 

Counsel

T Lee ( Crown)

J Nottle ( Offender)

Solicitors

ACT Director of Public Prosecutions

Operational Legal Australia ( Offender)

File Number:

SCC 48 of 2024

BURNS AJ:

Introduction

1․Aleksandar Ivanovski, on 21 February 2025 you were found guilty following a trial by jury of engaging in sexual intercourse with the victim without her consent contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Act) on 16 December 2021. The maximum penalty for this offence is imprisonment for 12 years.

2․It is now my obligation to sentence you for this offence. It is part of that obligation that I must determine the facts upon which you are to be sentenced. Any facts that I determine which would make the offence more serious, calling for greater punishment, must be determined to the standard of beyond reasonable doubt. Any facts which would make the offence less serious need only be determined on the balance of probabilities. Any facts which I determine must be consistent with the verdict of the jury.

3․At the time of this offence, the victim was working as an escort at Langtrees of Canberra (Langtrees). This is a bar and commercial brothel in Mitchell in the Australian Capital Territory (ACT). Langtrees does not offer unprotected sexual services. You attended Langtrees at about 6:40pm on 16 December 2021. You spent time with another escort from 6:40 PM before making a booking with the victim at 7:55pm for 30 minutes.

4․Your booking with the victim took place in the “Versace Suite”. In the suite you told the victim that you “wanted to fuck her raw”, meaning that you wanted to have unprotected sexual intercourse with her. The victim told you that she did not do “natural services” and that you were required to use a condom if you wanted to have sex. The victim made it clear to you that unprotected sex was not going to happen. You became irritated at this and said, “Oh, fuck it. Give it here then.” You then took a condom from the victim.

5․At this point, your penis was erect. The victim watched you put the condom on. Almost immediately, your penis became flaccid. Throughout the booking, you attempted to push your flaccid penis into the victim’s vagina. After 30 minutes, the victim’s timer went off and she told you that the booking was finished.

6․You did not want to end the booking. You accompanied the victim to the reception desk where a 10-minute extension for $100 was negotiated. You and the victim then returned to the suite. The victim gave you another condom and watched you put it on, but once again your penis became flaccid. You attempted to penetrate the victim’s vagina for about three minutes. You had the victim lying on her back so that her arms were beside her and her legs came up to her shoulders. When she did this, she saw that you had a condom on. After about two minutes you flipped the victim over so that she was on her hands and knees facing away from you. The victim felt you pull away, and your penis became erect and suddenly went into her vagina. The victim felt your hands on her waist.

7․The victim heard you say that you were “really close to coming” but after about four thrusts the timer went off. You asked for five more minutes, but the victim told you that the booking was over, and it was time to leave. In one motion the victim moved forward away from your penis and turned to look at you over her right shoulder. She saw that you were not wearing a condom. You bent down and picked the condom up off the floor, where your feet were.

8․The victim asked you “what the fuck” you were doing and said, “did you just fucking stealth me?” You responded “No, I didn’t.” The victim asked why the condom was on the floor and you said “I was about to blow. I only just took it off”, and “I didn’t stealth you”.

9․It has been accepted that the term “stealth” in this context means the removal of a condom from the penis during the act of sexual intercourse without the knowledge or consent of the other party.

10․The victim left the suite and made immediate complaint to the Langtrees manager that you had stealthed her. You came out to the reception area and denied having done anything wrong and the manager called the police. The victim was angry and upset about what had happened. You left the premises.

11․By virtue of s 67(1)(j) of the Act, a person does not consent to an act of sexual intercourse if the person participates in the act because of an intentional misrepresentation by another person about the use of a condom. You were clearly on notice that the victim was not consenting to any act of sexual intercourse which did not involve you wearing a condom on your penis. I am satisfied that you had difficulty sustaining an erection while using a condom, and you determined to remove the condom to increase your sexual arousal and pleasure.

12․The Crown submitted that I should find that this was a premeditated act and that you manoeuvred the victim into a position where she would not be able to see you remove the condom. In order to make that finding, I would need to be satisfied beyond reasonable doubt that no other inference is available. The alternative inference is that you spontaneously determined to use the opportunity presented by the position of the victim to remove the condom. I cannot rule out that inference as a possible inference, and I cannot be satisfied to the required level that your conduct was premeditated.

13․I am satisfied beyond reasonable doubt that you removed the condom from your penis at the time that the victim felt you pull away from her and immediately before your penis became erect and entered into her vagina.

14․I was provided with a Victim Impact Statement which speaks of the trauma that has been inflicted on the victim’s mental health by the offence and the subsequent investigation. She speaks of having made attempts to end her life. Her relationships have suffered. She has found it difficult to express in words the feelings that have come from being sexually assaulted.

15․In assessing the objective seriousness of this offence, I take into account:

(a)that the offence was opportunistic;

(b)that the offence was not prolonged;

(c)no threat of violence was directed towards the victim;

(d)you did not use a condom, thereby putting the victim at risk of sexually transmitted disease or pregnancy;

(e)you were clearly aware of the fact that the victim would not consent to unprotected sexual intercourse; and

(f)the offending had a profound negative effect on the victim.

16․I would assess this offence as in the lower part of the mid-range of such offences.

17․All offences of sexual intercourse without consent are serious criminal offences. The seriousness of the present offence is not diminished by the fact that the victim had engaged in consensual sexual intercourse with you prior to you removing the condom. All sexual conduct, whether with a sex worker or any other person, must be consensual. It is always open to any party to sexual activity to impose limits on what forms of sexual activity they are willing to engage in.

18․A psychological assessment prepared by Doctor Leesa Morris was tendered at your sentence hearing. Doctor Morris notes that you told her you began using cocaine socially when you were 20, initially on a monthly basis. Your use increased at a time when there were difficulties in your relationship with your wife. This was about three or four years ago. You began using methamphetamine while in your current relationship. This resulted in two admissions to the Canberra Hospital because of excessive use of this substance. You also reported reckless behaviour as a consequence of the use of methamphetamine. You have experienced symptoms of psychosis while using drugs but not otherwise.

19․You reported symptoms of low mood over the last three or four years when your marriage was breaking down. You were also having problems with your business which caused you further stress. Doctor Morris stated that you described a short history of disruptive mood in response to stressors, indicating the presence of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

20․Doctor Morris noted that you continue to deny the present offending, but you acknowledged that your behaviour at the time of this offence was irrational and impulsive. Given your lack of prior criminal history, stable employment, and marital relationship prior to the COVID‑19 pandemic, Dr Morris stated that it could be considered that this was not your usual level of functioning.

21․Doctor Morris concluded that your psychological state at the time of the present offences was impacted by your Adjustment Disorder and your underlying issues of self-worth. As a result, Dr Morris opined, your behaviour was emotion-driven, and you increased your use of substances to manage your overwhelming feelings. Doctor Morris stated that you would have had difficulty with rational thought at the time.

22․In terms of your personal history, you told Dr Morris that your upbringing was “not too bad”. You grew up in Macedonia and came to Australia in 2006 at 19 years of age. Your father had a bad temper and as a child you stayed away from him when he was angry. You now have good relationships with your parents and also an older brother who lives in Italy. No alcohol or drug abuse, gambling, mental illness, criminal activity, divorce, suicide, or any other traumas were reported in your family history.

23․A pre-sentence report was obtained for sentencing purposes. In broader terms, it confirms the history which you provided to Dr Morris. You told the author of the report that you separated from your wife about 18 months ago after a 16-year relationship. You entered a new relationship approximately 8 months ago, which you described in positive terms. You currently reside with your partner in her rental property. You reported completing Year 12 prior to ceasing mainstream education. You described your schooling in positive terms indicating you had a large friendship group and did well academically.

24․It is clear that you have a very good work history. Your business is currently struggling financially, but you have been putting off making decisions until such time as the current proceedings are complete.

25․The author of the pre-sentence report stated that you did not fully engage in interviewing for preparation of the report. In particular, you were reticent to discuss the circumstances of your offending. In relation to your drug use, you told the author of the report that you had only used minimal cocaine amounts in the past 12 months. The author of the report noted that there were reasons to doubt the accuracy of that claim, but I do note that an oral drug test conducted on 13 May 2025 returned a negative result for all illicit substances.

26․Tests administered by Dr Morris suggested that you do not present with psychopathic personality traits, and that you are at average risk of sexual reoffending. You were assessed by the author of the pre-sentence report as a low risk of general offending and an average risk of sexual reoffending. In the opinion of the author of that report, your primary risk factor is your poor attitude towards your offending behaviour and the fairness of your trial outcome. Other risk factors include your long-standing cocaine use and limited pro-social family supports in Canberra.

27․On the evidence before me, I do not accept that you suffer from a serious mental illness. This was also the case at the time that you committed the offence. You made a poor choice to address the effects of environmental stress on your mental health by using substances such as cocaine and methamphetamine. Your offending behaviour, I am satisfied, occurred as a consequence of your frustration at failing to maintain an erection against a background of reckless behaviour primarily connected with your drug use.

28․There is no suggestion that any underlying mental health condition deprived you of the ability to understand the terms upon which the victim had agreed to engage in sexual activity with you. Indeed, your behaviour on the evening demonstrates that you were well aware of the boundaries. The report by Dr Morris does not suggest that you were incapable of understanding what you were doing at the time of this offence, only that you would have had difficulty with rational thought.

29․You did not enter a plea of guilty to the charge, meaning that you are not entitled to any reduction in sentence because of your acceptance of your guilt and remorse. You have demonstrated no remorse whatsoever. You were, of course, entitled to plead not guilty to the charge and to go to trial. But you are not entitled to the leniency that could have been shown to you had you entered a plea of guilty.

30․You have no prior criminal history. The material before me supports the conclusion reached by Dr Morris that your conduct on the occasion of this offence was out of character for you. Nevertheless, you have committed a serious criminal offence which has had a significant impact upon your victim.

31․It was submitted on your behalf that I should take into account the delay between the commission of this offence and you being charged. The offence, of course, occurred on 16 December 2021. The first complaint was made to police on the same night and the complainant participated in an interview with police on 18 December 2021. You provided a DNA sample to police on 14 September 2022. I understand that to be the first occasion upon which you became aware of the fact that police were investigating the allegation that you had engaged in this offence. You were summonsed to appear in the Magistrates Court in June 2023, and you first appeared in that Court on 27 September 2023. While the time from the complaint being made to the police to the time when you were summonsed to appear in the Magistrates Court was not optimal, the delay which would have had an impact on you was only from the point at which you were asked to provide a DNA sample by police to the time that you were issued with a summons. That was a period of approximately nine months. I do not accept that you are entitled to any significant reduction in sentence based upon delay.

32․It is difficult to assess your prospects for rehabilitation. Your lack of criminal history together with your good work history and your relatively stable family history would all suggest that you have reasonable prospects for rehabilitation. On the other hand, the fact that you have continued to deny committing this offence suggests that your prospects may not be so good.

33․You were assessed as suitable for an Intensive Correction Order, but such an order involves considerable leniency compared to a sentence of full-time imprisonment. I am satisfied that nothing less than a period of full-time imprisonment is warranted to appropriately punish you for your conduct, to deter you and others from committing similar offences in the future, and to mark the community’s disapproval of your conduct. I will acknowledge your lack of prior criminal history by partially suspending the sentence of imprisonment.

Orders

34․For those reasons the following orders are made:

(1)On the charge (SCCAN2023/6340) of sexual intercourse without consent, I record a conviction, and you are sentenced to 2 years 6 months imprisonment commencing 6 June 2025 and expiring 5 December 2027.

(2)I order that the period commencing 6 June 2025 and expiring 5 June 2026 be served by way of full-time imprisonment.

(3)The balance will be suspended and there will be a good behaviour order for a period of 1 year 6 months and one day commencing 5 June 2026 and expiring 5 December 2027 on condition that you:

(a)accept the supervision of ACT Community Corrections for a period of 12 months from 5 June 2026 or such lesser period as is deemed appropriate by your supervising officer; and

(b)you are to comply with all reasonable directions given by your supervising officer, including referrals to other agencies as deemed appropriate.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Burns.

Associate:

Date: 13 June 2025