Director of Public Prosecutions v Sarmiento

In the Supreme Court of the Australian Capital Territory, the Director of Public Prosecutions prosecuted Stephen Sarmiento for the offence of attempted sexual intercourse without consent, under section 54 of the Crimes Act 1900 (ACT). Sarmiento pleaded guilty to the offence, which occurred when he attempted to have non-consensual sex with a woman, referred to as Linda Cutler, while she was asleep in his apartment. The court had to decide whether to impose a sentence of imprisonment or an Intensive Corrections Order (ICO) considering the circumstances of the offence, Sarmiento's mental health, and the principles of sentencing.

The court found that Sarmiento's mental health issues, specifically severe depression and anxiety, played a significant role in his offending. The court accepted the psychologist's opinion that imprisonment would have a significant adverse effect on Sarmiento's mental health. However, the court was critical of the psychologist's reliance on Sarmiento's version of events, which differed significantly from the facts accepted by the court. Despite this, the court acknowledged the potential harm to Sarmiento if his therapeutic relationship with the psychologist was disrupted. The court also considered Sarmiento's prior good character, stable employment, and family support as mitigating factors.

The court concluded that while a sentence of imprisonment was necessary, it need not be one of full-time imprisonment. The court accepted that the interests of justice would be met by imposing an ICO, with conditions that include community service to ensure adequate punishment. The court found that an ICO would reflect sentencing purposes such as punishment, accountability, denunciation, and general deterrence.

The final orders were that Sarmiento be sentenced to imprisonment for two years, to be served by way of an Intensive Corrections Order for the same period. The conditions of the ICO included core conditions under the Crimes (Sentencing) Act 2005 (ACT) and a requirement to complete 400 hours of community service within two years.