Director of Public Prosecutions v Sullivan (No 5)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Sullivan (No 5)
Citation:	[2025] ACTSC 303
Hearing Dates:	7 February 2025, 2 April 2025
Decision Date:	16 July 2025
Before:	Baker J
Decision:	See [102]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – assault occasioning actual bodily harm – mixed jury verdicts – whether guilty verdict encompassed more than one act of penile-vaginal penetration –whether offender of good character – interstate family – loss of employment prospects – no remorse
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 54, 60 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(m), (za)
Cases Cited:	Cheung v R [2001] HCA 67; 209 CLR 1 R v Olbrich [1999] HCA 54; 199 CLR 270 S v The Queen (1989) 168 CLR 266 Director of Public Prosecutions v Mitchell (No 3) [2024] ACTSC 274 DPP v Moala (No 3) [2023] ACTSC 306 R v MAK; R v MSK [2006] NSWCCA 381 Alseedi v R [2009] NSWCCA 185 Park v R [2010] NSWCCA 151 BP v R [2010] NSWCCA 159 Western Australia v Dunne (No 2) [2022] WASC 111 R v Gatica [2020] ACTSC 22 R v Nuttall; ex parte Attorney General (Qld) [2011] QCA 120; 2 Qd R 328 R v Gregory [2010] VSC 121 Holloway v R [2023] SASCA 130 Director of Public Prosecutions v Earle [2023] ACTSC 93 Director of Public Prosecutions v Umunakwe (No 2) [2025] ACTSC 139 R v Pham [2015] HCA 39; 256 CLR 550 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Hili v R [2010] HCA 45; 242 CLR 520 Sarhene v R [2022] NSWCCA 79 Director of Public Prosecutions v Benn (No 2) [2025] ACTSC 266 Director of Public Prosecutions v Ierfone [2025] ACTSC 60 Director of Public Prosecutions v Williams [2024] ACTSC 283 Director of Public Prosecutions v Mitchell (No 3) [2024] ACTSC 274 Director of Public Prosecutions v Aghahosseini [2024] ACTSC 237 Director of Public Prosecutions v Mack [2024] ACTSC 227 Director of Public Prosecutions v Rue [2023] ACTSC 270 Okwechime v The Queen [2023] ACTCA 233 Director of Public Prosecutions v Earle [2023] ACTSC 93 Director of Public Prosecutions v Jones (No 2) [2023] ACTSC 99 R v Finau (No 2) [2020] ACTSC 193 R v Lindsay [2020] ACTCA 25 R v Aroub [2017] ACTSC 187 R v Agresti [2016] ACTSC 9 Agresti v The Queen [2017] ACTCA 20; 13 ACTLR Director of Public Prosecutions v Smith (No 5) [2025] ACTSC 188 Director of Public Prosecutions v Hojlund (No 2) [2025] ACTSC 211 Director of Public Prosecutions v Ware [2024] ACTSC 52 Ware v Director of Public Prosecutions [2025] ACTCA 15 Director of Public Prosecutions v Ivanovski [2025] ACTSC 237 Director of Public Prosecutions v Lodding (No 5) [2025] ACTSC 240
Parties:	Director of Public Prosecutions ( Crown) Jake Sullivan ( Offender)
Representation:	Counsel T Hickey ( DPP) S Howell ( Offender)
Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender)
File Number:	SCC 322 of 2022

BAKER J:

Introduction

1․The offender, Jake Sullivan, was tried by a jury of twelve from 9 September 2024 to 24 September 2024 on an indictment that charged him with four counts of sexual intercourse without consent contrary to s 54 of the Crimes Act1900 (ACT); one count of an act of indecency without consent contrary to s 60 of the Crimes Act; and one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act.
2․On 24 September 2024, the jury returned the following verdicts:
Count 1 (CC2022/8509) – sexual intercourse without consent – guilty

Count 2 (CC2022/8510) – sexual intercourse without consent – guilty
Count 3 (CC2022/8512) – sexual intercourse without consent – not guilty
Count 4 (CC2022/8513) – sexual intercourse without consent – not guilty
Count 5 (CC2022/8511) – act of indecency without consent – not guilty
Count 6 (CC2022/8508) – assault occasioning actual bodily harm – guilty
3․The offender now comes before the Court to be sentenced for Counts 1, 2 and 6.
4․The maximum penalty for sexual intercourse without consent is 12 years’ imprisonment. The maximum penalty for assault occasioning actual bodily harm is 5 years’ imprisonment.

Findings of Fact

Principles to be applied

5․As the offender was found guilty by a jury, it is necessary for me to make findings of fact upon which the offender will be sentenced. These must be consistent with each of the jury’s verdicts: Cheung v R [2001] HCA 67; 209 CLR 1 at [14]. I must be satisfied beyond reasonable doubt of any aggravating matters. I must be satisfied on the balance of probabilities of any mitigating matters: R v Olbrich [1999] HCA 54; 199 CLR 270.
6․I will firstly address the factual findings that were not the subject of dispute, before turning to the facts which were the subject of dispute in these sentence proceedings.

Facts that were not disputed at trial

7․The offender and the victim both attended the Australian Defence Force Academy (ADFA). They met in March 2020 and shortly after matching on Tinder, commenced a casual sexual relationship, which lasted for several months. They reconnected on New Years Eve of 2021, and remained in contact until the alleged offending.
8․On the afternoon of 11 March 2022, the victim and several friends from her ADFA Squadron went out for drinks in Ainslie. The victim and her friends then returned to ADFA for an event. On the same evening, the offender had dinner with friends at a pub in Civic, and then attended the Mooseheads nightclub.
9․At 9:30pm, the victim and her friends caught an Uber to Civic to attend the Mooseheads nightclub. The victim saw the offender at the nightclub and approached him. After a brief conversation, she informed the offender she was heading back to her accommodation at ADFA. The offender initially told the victim that he would remain in Civic but after hearing his friend was also planning to return to ADFA, the offender decided to accompany the victim back to ADFA in an Uber, along with his friend and one of the victim’s friends.
10․The victim and the offender then went to the victim’s private room at ADFA where they engaged in consensual sexual intercourse.

Facts that were disputed at trial

The prosecution case

11․The prosecution case was that at some stage during the consensual sexual intercourse, the offender began to pull the victim’s hair, and grabbed her right arm and right breast roughly, causing bruising. The victim gave evidence she responded with words to the effect of “oh… ow, it hurts” or “ow, that really, really hurts” (Count 6 – assault occasioning actual bodily harm – guilty). The victim then stopped having intercourse with the offender, got off the offender, turned over, faced the other way and tried to go to sleep.
12․The victim gave evidence that the offender then said words to the effect of “You’re the one who invited me over here, you know, you’ve been talking about this for a week, you couldn’t even make me come.” The victim said that the offender then reached between her legs and inserted his finger into her vagina without her consent (Count 1 – sexual intercourse without consent – guilty).
13․The victim gave evidence that the offender then attempted to insert his penis into her vagina from behind, before physically moving her on top of him and inserting his penis in her vagina (Count 2 – sexual intercourse without consent – guilty). The victim said that she “froze” and “blankly stared” at the offender whilst this occurred. She said that she was scared and did not know what to do. The offender was much bigger than her, and she was scared that he was going to get more aggressive. Expert evidence from Dr Jessica Pratley adduced by the prosecution in the trial confirmed that such a “freeze” response is not uncommon for victims of sexual assault.
14․The sexual intercourse continued, during which the victim and the offender changed positions several times.
15․The victim gave evidence that at one stage during this time, the offender inserted a finger inside her anus. The victim said words to the effect of “No, no, no, I don’t want to do that” and told the offender she “hadn’t prepared” for anal intercourse. The offender responded with words to the effect of “oh, come on” or “it’s fine, I don’t care” (Count 3 – sexual intercourse without consent – not guilty).
16․The prosecution case was that the victim then attempted to disengage from intercourse for a second time and told the offender “I just want to sleep”.
17․The victim gave evidence that the offender then repeated words to the effect of “You didn’t even make me come. You invited me over here” and “oh well, can you at least touch it” before moving her left hand to touch his penis, and masturbating himself with her hand (Count 5 – act of indecency without consent – not guilty). The victim said that she continued to masturbate the offender’s penis, even after the offender moved his hand away, as she was scared because of his large physical stature.
18․The prosecution case was that the offender then pulled the victim on top of him, and gestured that he wished to receive oral sex. The victim indicated to the offender that she did not wish to give him oral sex. The victim said that the offender then pulled her by the hips, forced her head onto his penis, and held her head for around 30 seconds while she performed oral sex (Count 4 – sexual intercourse without consent – not guilty).
19․The victim gave evidence that she and the offender continued to engage in sexual intercourse for approximately a further fifteen minutes. She said that during this time, she began to cry. The offender suggested they use lubricant. The victim agreed to this and grabbed the lubricant as she “just wanted it to be over”. The victim and offender continued to have intercourse until the offender ejaculated.
20․The victim gave evidence that the offender then followed her into the communal showers at ADFA, where they showered.
21․The victim told the offender he had hurt her. The offender apologised and said that he was going to return to Mooseheads to visit a kebab shop to get food. He said that he would return after he had purchased some food. The victim told the offender not to return because he had hurt her and she was in pain. The offender said “Oh, okay, well I’ll message you in the morning. I’m sorry” and then left.
22․At trial, various witnesses gave evidence of the victim’s distress in the period after these events. Shortly after the offender left, the victim called her younger brother, who gave evidence that she was “crying” and “breaking down”. After speaking to her younger brother, the victim then called a close friend, who immediately went to see the victim. The friend described the victim as “crying and in a bit of state of disarray [sic]… almost in a state of shock.” The victim told her mother about the offending on a Facetime call the following morning. The victim’s mother described the victim as “pale, crying, trembling lips, very monotone voice, in shock, upset.” Other friends who observed the victim the following day described the victim as “in distress” and “absolutely devastated”. One friend gave evidence that her “immediate reaction was that [the victim’s brother] had died because of just how devastated and, like, lost and horrified she looked.” The friend also observed the victim’s injuries, which included bruising and blood blisters. Photographs of the injuries were taken by an Australian Defence Force investigator on 16 March 2022, which depicted bruising on various parts of the victim’s body.

The offender’s case

23․The offender gave evidence in the trial that the victim consented to all penile-vaginal sexual intercourse with him that night (Count 2). He denied that the victim had ever told him she was tired or that she wanted to cease intercourse. He also denied injuring the victim, either by squeezing her breast in an aggressive manner or in any other manner (Count 6). It was suggested to the jury that the victim may have sustained the bruising during football training earlier that week.
24․The offender denied that any act of anal intercourse occurred (Count 3) and also denied penetrating the victim’s vagina with his finger at any time (Count 1). The offender gave evidence that the victim consensually engaged in oral sex, and denied ever forcing the victim's head onto his penis (Count 4) or forcing the victim to masturbate him. The offender maintained that the victim never complained of experiencing any pain, and said that it was in fact his complaints of pain during intercourse that led to the use of the lubricant.

The scope of the conduct which constituted Count 2

25․Obviously, the offender stands to be sentenced only for those offences for which he was found guilty: that is, Counts 1, 2 and 6. The alleged conduct which gave rise to the counts for which the offender was found not guilty must be disregarded by the Court when sentencing the offender.
26․However, during the sentence proceedings, an issue arose regarding the scope of the conduct which constituted Count 2.
27․Count 2 alleged an offence of penile-vaginal intercourse without consent. As outlined above, the victim’s evidence was that the offender engaged in penile-vaginal sexual intercourse at the following times:
(i)First, the offender and the victim engaged in consensual penile-vaginal intercourse shortly after the offender first arrived at the victim’s room (the jury were instructed that this intercourse was not the subject of any count on the indictment because it was consensual);
(ii)Second, the offender and the victim engaged in penile-vaginal intercourse after the offender allegedly assaulted the victim (Count 6) and digitally penetrated her (Count 1). This intercourse commenced when the offender pulled the victim on top of him;
(iii)Third, the offender and the victim continued to engage in penile-vaginal intercourse, which involved the “changing of positions” up until the point in time when the offender inserted his finger into the victim’s anus (Count 3); and
(iv)Fourth, the offender and the victim engaged in further penile-vaginal intercourse after the offender made the victim masturbate him (Count 5) and engage in oral sexual intercourse with him (Count 4). The victim said that during this intercourse, she began to cry because of the pain that she was experiencing, and the offender obtained some lubricant for her. This sexual intercourse ended when the offender ejaculated in her vagina.

28․In the proceedings on sentence, the prosecutor submitted that the prosecution “ran its case on the understanding that Count 2 encompassed all of the penile-vaginal intercourse after the offender grabbed the victim and pulled her on top of him, including the ‘changes of positions’ and that ‘during’ it other unwanted sexual contact occurred”. That is, the prosecution’s position in the proceedings on sentence was that the jury’s guilty verdict on Count 2 should be understood as encompassing every act of penile-vaginal penetration that occurred after the commission of Count 1.
29․In support of this contention, the prosecutor referred to the following passage of his opening address:
And I expect [the victim] will tell you that she hit a fight or flight response and that it probably didn’t really hit her until afterwards, but he continued to have sex with her and you will hear that there are a few changes of positions. So that is count 2 on the indictment, the penile-vaginal sexual intercourse. And at some point during that, he put his finger or thumb into her anus … (emphasis added in the prosecution’s submissions)
30․The prosecutor also referred to his closing address, in which he submitted that:
And she said she kind of froze again, and that’s when he, like, grabbed her and pulled her, and pulled her on top of him and continued having sex. So the penile/vaginal sexual intercourse after she wasn't consenting is count 2. (emphasis added in the prosecution’s submissions)
31․There may be questions as to whether it would have been permissible for the prosecution to particularise Count 2 as a ‘course of conduct’, which included more than one act of penetration over the course of the evening, particularly where some of those acts of penetration were interrupted by other charged acts: S v The Queen (1989) 168 CLR 266.
32․It is not necessary to resolve that question, upon which neither party made submissions in the proceedings on sentence. Where the prosecution seeks to rely on a course of conduct in support of a particular count, it is essential that the prosecution make this position entirely clear to the Court and to the accused, both in the Prosecution Case Statement, and in the Opening Address.
33․As can be seen from the above extracts, the prosecution’s statement as to when Count 2 ended was ambiguous in both the opening and closing addresses.
34․Nor was there any clear statement in the Prosecution Case Statement that indicated that Count 2 was intended to encompass more than one act of penetration. Indeed, the Prosecution Case Statement conveyed the opposite. Specifically, in the narrative of the allegations, the Prosecution Case Statement described a single act of penetration, which occurred after Count 1 and before Count 3 in the following terms:
Count 2 (CC2022/8510) – Sexual Intercourse without consent
The accused then attempted to insert his penis into [the victim’s] vagina from behind before holding her by the hips and manipulating her on top of him and inserted his penis into [the victim’s] vagina.
[The victim] ‘froze’ and stared blankly at the accused as he did this.
35․When the Prosecution Case Statement later referred to subsequent acts of penile-vaginal intercourse later in the evening (for example, at the end of the evening, after the alleged commission of Count 4), there was no suggestion that these later penetrations were also the subject of Count 2.
36․Consistently with the Prosecution Case Statement, in my summing up, I directed the jury as follows:
Turning now to count 2. That concerns the allegation that the accused inserted his penis into the complainant’s vagina. Count 2 is alleged to have occurred very shortly after count 1.
37․I provided a copy of this part of the proposed summing up to both parties prior to the summing up. The prosecutor did not seek any alternative direction, and, in particular, did not request that I direct the jury that Count 2 covered all instances of penile-vaginal intercourse that occurred after the offender pulled the victim on top of him, rather than simply covering the act of penetration as set out in the direction.
38․The jury’s verdict on Count 2 can only be understood against the directions that were given. The jury was not instructed that Count 2 encompassed more than one act of penile-vaginal penetration. The jury was instructed that Count 2 encompassed a single act of penetration occurring between Count 1 and Count 3.
39․In these circumstances, I do not accept the prosecution’s contention that the jury’s verdict on Count 2 constituted a finding that every instance of penile-vaginal intercourse that occurred between the victim and the offender after the offender pulled the victim on top of him was made out. As I instructed the jury, the act which was the subject of Count 2 is the act of sexual penetration which occurred after the commission of Count 1 and before the commission of Count 3. I will sentence on this basis.
40․In the alternative, the prosecutor submitted that even if “a narrow view of Count 2 were taken” (that is, that Count 2 only encompassed the penile-vaginal intercourse occurring immediately after Count 1), then “that is not the end of the matter”. The prosecutor continued:

… it is plain that the complainant clearly communicated to the offender that she no longer wanted to continue sexual intercourse with him. Her repeated comments about him hurting her, and getting off him, and rolling away, and telling him she wanted to sleep, couldn’t have spoken more loudly to this. Indeed, the only reasonable inference is that when the offender had to man-handle her smaller frame on top of him (effectively overriding her protest) he must have known she didn’t want to continue sex with him.
Further it is also necessary to put that part of the incident in the context of the broader event, by referring to the fact that the sexual intercourse continued for a lengthy period from that point onwards (on any view) in different positions, where the victim experienced and expressed discomfort to the unwanted sexual activity that followed.
41․However, when assessing the objective seriousness of Count 2, it is necessary to take account of the jury’s verdicts of not guilty with respect to the later counts. As noted above, the jury returned not guilty verdicts for Count 3 (digital-anal intercourse); Count 5 (masturbation); and Count 4 (oral sexual intercourse), each of which were alleged to have occurred after the acts which were the subject of Counts 1, 2 and 6.
42․The reason for the jury’s different verdicts for the two sets of counts is not immediately clear. In particular, there is no apparent reason to differentiate the victim’s credibility and/ or reliability in respect of Counts 1, 2 and 6 and Counts 3, 4 and 5. In the proceedings on sentence, the prosecutor did not identify any possible explanation for the different verdicts.
43․The offender’s counsel contended that the verdicts cannot be reconciled. The offender has lodged an appeal against his convictions, upon the ground that the verdicts are inconsistent. It will be the task of the Court of Appeal, rather than myself, to determine whether the verdicts can be reconciled. As noted above, I have not had the benefit of any submissions on this issue.
44․For present purposes, where there is no obvious basis upon which the not guilty verdicts may be explained or rationalised consistently with the guilty verdicts, I consider that I have no alternative other than to decline to make any finding of fact concerning the period for which the jury returned verdicts of not guilty (ie, from Count 3 onwards).

The Offender’s Subjective Circumstances

Pre-Sentence Report and Intensive Correction Order Assessment Report

45․The Court was provided with a Pre-Sentence Report (PSR) dated 3 January 2025, and an Intensive Correction Order Assessment Report (ICOAR) dated 26 March 2025.
46․The authors of each report noted that the offender reported a positive upbringing and close relationships with his parents and brother. The offender currently resides in Queensland with his parents and is working at a flooring company.
47․The offender completed year 12 at a private school and completed a Bachelor of Arts through ADFA. He is currently suspended without pay from the military. He has no current physical or mental health issues, no history of any mental health diagnoses and no criminal history. The offender described a positive social circle with no problematic substance use. The offender had consumed alcohol at the time of the offending, but there was no evidence in either the prosecution or the defence case that the offender had consumed an excessive amount of alcohol, or that the quantity of alcohol consumed contributed to the offending in any way.
48․The offender did not express any remorse for the offending. He told the authors of the PSR and the ICOAR that he maintained his innocence and was planning to appeal his conviction.
49․The PSR and ICOAR authors assessed the offender’s risk of reoffending as low, but assessed the offender’s risk of sexual reoffending as above average. This evidence will be discussed further when addressing the offender’s prospects of rehabilitation and risk of reoffending below.
50․The offender was assessed as not suitable for a Community Service work condition or an ICO as he resides interstate. The offender has indicated that he would be willing to relocate to Canberra if sentenced to an ICO.

Character references

51․The offender provided nine character references, and tendered an affidavit of his mother which spoke of the offender’s good character. The character references, which were provided by his uncle, aunt, a family friend, a friend with whom the offender had had a sexual relationship, three friends, his brother and his employer, spoke of his kindness, caring nature and leadership.
52․In written submissions on sentence filed on 7 February 2025, the prosecution objected to the tender of these character references on the basis that character had not been raised on behalf of the offender during the trial. The prosecution properly did not press that objection, but instead sought a fair opportunity to put on character evidence in reply. The initial sentence hearing was adjourned to permit this to occur.
53․At the subsequent sentence hearing on 2 April 2025, the prosecution tendered a statement of Ishaq Ali. Mr Ali did not have a close relationship with the offender, but knew of him through studying, working and socialising. Mr Ali stated he knew the offender as someone who would regularly binge drink, and would become aggressive and violent whilst under the effect of alcohol. Mr Ali did not ever personally witness this behaviour.
54․The prosecution also relied, in a supplementary tender bundle, on evidence that had been obtained for the trial, but which was not admitted at trial, including a series of text messages that were exchanged between the offender and victim approximately two to three months before the offences, as well as extracts of statements of other witnesses which referred to the offender becoming aggressive whilst drunk.
55․I will discuss the weight to be given to this evidence below.

Victim Impact Statement

56․In her victim impact statement, the victim described the effects that the offending has had upon her. She said:
On 11 March 2022… [the offender] raped me in my own bed, after I gave him more than one indicator for him to stop…. the harm from this has impacted my mental health, my job and my sense of worth.
57․In her victim impact statement, the victim described her experience of nightmares, anxiety, depression and Post Traumatic Stress Disorder as a result of the offending. The offending has impacted her mental health, her employment and her sense of worth. The victim now feels “worthless and broken” as a result of the offender’s actions. She finds it difficult to trust other men. She worries about whether other men will also ignore her if she says “no”. She has become a more closed off person, and feels that she may “never be fixed”.
58․I will take into account the victim impact statement in accordance with the provisions of the Crimes (Sentencing) Act 2005 (ACT) and in accordance with the findings of fact I have made above, as well as in accordance with the decision of Mossop J in Director of Public Prosecutions v Mitchell (No 3) [2024] ACTSC 274 at [16] – [17].

Sentencing Considerations

Objective Seriousness

59․I am required to consider the objective seriousness of the offending and where it sits on the spectrum of conduct establishing the offence. As McCallum CJ held in DPP v Moala(No 3) [2023] ACTSC 306 at [22], it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. I consider it more appropriate to assess the objective seriousness by reference to the particular factors which are relevant to the nature and circumstances of the offences: see s 33(1)(a) of the Crimes (Sentencing) Act.

Assault occasioning actual bodily harm (Count 6)

60․As outlined above, Count 6 was a count of assault occasioning actual bodily harm. In assessing the objective seriousness of this offence, I have taken into account the following matters:
(i)The offence was committed spontaneously. It was not planned or premeditated;
(ii)The offender caused harm to various parts of the victim’s body (her scalp, arm and breast), by various different acts (pulling hair; grabbing her arm; and twisting her breast);
(iii)The offender continued to inflict harm upon the victim after she cried out in pain;
(iv)The offending was not momentary, but nor was it particularly long in duration;
(v)As a result of the offending, the victim sustained bruising which was tender and visible 5 days later;
(vi)The offending occurred in the victim’s room, where she was entitled to feel safe;
(vii)The offending occurred whilst the victim was naked, and vulnerable, in her own bed; and
(viii)The offender was a person that the victim had a personal relationship with, and trusted.

61․An important issue in determining the objective seriousness of the offending is assessing the offender’s state of mind when he committed the assault upon the victim. The offender’s counsel submitted that it was:
… unlikely that [the offender] meant for the relevant acts causing bodily injury to be threatening or hostile. Rather, viewed in context, he likely meant for the relevant acts to excite [the victim], or excite himself, or both of them. His actions however clearly did not have that effect. That said, his conduct was not sufficient for [the victim] to immediately cease intercourse.
62․I accept that the offender did not intend for the relevant acts causing bodily injury to be threatening or hostile. However, I do not accept the offender’s counsel’s submission that his acts were motivated by an intent to sexually excite the victim. So much is clear from the fact that the offender did not cease the assault when the victim cried out in pain. His response (“you’re the one who invited me over… you couldn’t even make me come”) demonstrated an attitude of entitlement towards her. I find that the offender acted with an intention to excite himself, not caring whether he inflicted physical injuries upon the victim in doing so.
63․The purpose of the offender’s counsel’s additional observation that the offender’s conduct was “not sufficient for the victim to immediately cease intercourse” was not clear. Insofar as this submission implied that the assault was less serious, it must be rejected. As the victim and the expert evidence explained, the victim’s response to the assault was a “freeze” response. The fact that the victim responded in this way (rather than fleeing from the offender) says nothing about the seriousness or intensity of the assault.

Sexual intercourse without consent (Counts 1 and 2)

64․A broad range of conduct is encompassed within the offence of sexual intercourse without consent.
65․In assessing the objective seriousness of the offences of sexual intercourse without consent, I have taken into account the following matters:
(i)Each offence was committed spontaneously. There is no evidence of any planning, nor of any premeditation. The first acts of sexual intercourse between the offender and the victim were consensual;
(ii)The act of digital penetration (Count 1) was short in duration;
(iii)Even accepting the limited scope of Count 2 (see at [25] – [39] above), the act of penile-vaginal intercourse was not short in duration (but nor was it particularly prolonged);
(iv)The offending occurred in the victim’s room within ADFA, a place where she was entitled to feel secure;
(v)The offending occurred whilst the victim was naked, and vulnerable, in her own bed; and
(vi)The offender was a person that the victim had a personal relationship with, and trusted.

66․Again, in assessing the objective seriousness of the offending, it is necessary to make factual findings as to the offender’s state of mind.
67․The prosecution submitted that the offender “forced sexual intercourse” on the victim, “without her consent and over her protestation”. The prosecution further submitted that the offender “deliberately set about to gain sexual gratification from the victim despite her protestations”. In so submitting, the prosecution relied upon evidence that the victim exclaimed “ow that hurts” a few times during intercourse. The prosecution also referred to the victim’s account of having repeatedly told the offender “no”, and having attempted the flight, freeze, negotiate and surrender responses to resist further intercourse. The prosecution submitted these factors increased the objective seriousness of Count 2.
68․For the reasons explained at [23] – [37] above, I have declined to make any findings of fact (particularly any finding of fact which aggravated the offending) concerning the period for which the jury returned verdicts of not guilty (that is, after the commission of Count 2). As the victim’s evidence that she exclaimed in pain during intercourse concerned the intercourse that occurred at [60(iv)] above, I have not taken that evidence into account in determining the offender’s state of mind during the commission of Counts 1 or 2.
69․However, this is not particularly significant, because immediately before the commission of Count 2, the offender had pulled the victim’s hair, roughly grabbed her arm and grabbed, squeezed and twisted her right breast, causing her pain (which she immediately expressed to the offender) and bruising (Count 6). The offending in Counts 1 and 2 must be understood in the context of physical violence having been inflicted at such a proximate time to the offending.
70․Further, the victim had made it abundantly clear to the offender that she did not wish to engage in further sexual intercourse with him. Specifically, after exclaiming “ow it hurts”, the victim stopped having intercourse with the offender and turned away from him. The offender did not accept the victim’s clear indication that she was no longer consenting to sexual intercourse. Rather, the offender’s response, “you asked me here and you couldn’t even make me come” demonstrated that his attitude was of self-centred entitlement. It was at this time that the offender inserted his finger into the victim’s vagina (Count 1), and then manipulated her on top of him before then inserting his penis into the victim’s vagina (Count 2).
71․The offender’s counsel properly accepted that the jury must have accepted that the offender “considered the possibility she was not consenting to either of those further acts of intercourse, but proceeded anyway”.
72․In view of the chronology of events, I am satisfied beyond reasonable doubt that the offender knew that the victim did not consent. However, in the particular circumstances of this case, it matters little to the assessment of the objective seriousness whether the offender knew that the victim did not consent, or whether he contemplated the possibility and proceeded nonetheless. An attitude of recklessness in the face of an exclamation of harm and a clear indication of non-consent is so close to a knowledge of lack of consent as to be virtually indistinguishable. What is significant is that the offender prioritised his own sexual gratification over any consideration of the victim.

Character evidence

73․As outlined above, both the offender and the prosecution tendered further evidence relating to the offender’s character.
74․Very different pictures of the offender’s character were portrayed in these different documents. As noted above, the character references tendered on behalf of the offender spoke of the offender’s kindness, caring nature, success in academics, sports and in the military and his leadership qualities. In contrast, the witness statements tendered by the prosecution spoke of the offender as having a reputation of being “hot-headed”, and “angry” or “aggressive” when drunk.
75․As counsel for the offender submitted, care must be taken when assessing the material contained in the prosecution tender bundle. None of the witnesses whose statements were relied on by the prosecution described any acts of aggression or violence which they had personally witnessed. Rather, those witnesses spoke of the offender’s general reputation and events that they had heard about from other people. Similarly, whilst the text messages sent by the offender may, on one view, be read as indicating a callous and unsympathetic attitude on the part of the offender towards a possible sexual assault committed by other persons, the Court was not provided with any context of those text messages, or any explanation about precisely what precisely it was that the offender and the victim were speaking about at the time.
76․On the other hand, a number of the character references tendered on behalf of the offender expressed a level of shock and disbelief that the offender would have engaged in offending of the kind that he has been convicted of. None of the character references grappled with the significance of the conduct of the offender, or the harm that he has caused the victim.
77․Ultimately, the offender’s character is best understood by the objective evidence. Specifically, he is a young man, who has excelled at school and in the military, and who has made a positive contribution to the community. He has no prior convictions for offending of any kind.
78․Section 33(1)(m) of the Crimes (Sentencing) Act requires the Court to consider this evidence of character. However, the weight to be given to evidence of character can only be ascertained by reference to the purposes of sentencing, as contained in s 7 of the Crimes (Sentencing) Act.
79․I will take into account the evidence of the offender’s character as described above in assessing the offender’s prospects of rehabilitation and the likelihood of reoffending. Noting that offences of this nature are frequently committed by young persons who are otherwise of exemplary character, I do not consider that there should be any significant mitigation in the weight to be given to general deterrence, specific deterrence, denunciation or the need to make the offender accountable for his actions.

Remorse, prospects of rehabilitation and likelihood of reoffending

80․The offender has not demonstrated any remorse for his offending.
81․The prosecutor submitted that:
… remorse is a major factor in determining whether an offender is unlikely to re-offend or has good prospects of rehabilitation”. Without it, neither finding can be made: R v MAK; R v MSK [2006] NSWCCA 381 at [41].
82․It may be accepted that the presence or absence of remorse will often be an important consideration in determining an offender’s prospects of rehabilitation and risk of reoffending. However, it is not the case that remorse is required before a positive finding as to an offender’s prospects of rehabilitation can be made. There can be “rehabilitation without confession”: see Alseedi v R [2009] NSWCCA 185 at [65]. An offender’s prospects of rehabilitation are “not necessarily thwarted by his protests of innocence”: Park v R [2010] NSWCCA 151; 202 A Crim R 133 at [61]. Accordingly, a failure to express remorse does not, without more, disentitle an offender to a finding that his prospects of rehabilitation are good: BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [84], citing Alseedi at [65] and Ali v R [2010] NSWCCA 35 at [48].
83․As noted above, in the present case, the ICOAR and the PSR authors assessed the offender as being of “average” risk of general reoffending and “above average” risk of sexual reoffending. The Static-99R Tally Sheet, which was used to assess the offender’s risk of reoffending explained that the offender’s youth and lack of cohabitation in his previous relationships contributed to the assessment that the offender was a higher risk of sexual reoffending. These are statistical measures which are of limited value in assessing the offender personally: see similarly Western Australia v Dunne (No 2) [2022] WASC 111 at [35].

84․If the victim had not made a complaint to police, and if the offender had not been brought to trial, the prospects of the offender engaging in similar conduct in the future may well have been above average. However, as the character references attest, the offender has been deeply affected by the trial and by his (albeit relatively short) experience of custody when incarcerated following the jury’s verdicts. He has no prior convictions, and has positive support from his family and friends.
85․In these circumstances, despite the offender’s lack of remorse for his offending, I find that the offender has reasonable prospects of rehabilitation and is unlikely to reoffend.

The burden of imprisonment

86․The offender’s promising military career has been compromised as a result of the present convictions. It is appropriate to take this matter into account when determining the weight to be given to the punishment of the offender: R v Gatica [2020] ACTSC 22 at [38]-[42]; R v Nuttall; ex parte Attorney General (Qld) [2011] QCA 120; 2 Qd R 328 at [59].
87․I will also take into account that a sentence of imprisonment will weigh heavily on the offender, who will be a young person serving a first sentence of imprisonment far from his family and support network, who are all in Queensland.
88․The offender also submitted that the media reporting of the proceedings should be taken into account as extra-curial punishment. The media reports that were provided to the Court in the sentence proceedings were fair reports of the trial and the jury’s verdicts which accurately reported the cases for the prosecution and the offender. Responsible reporting of a jury’s verdicts does not constitute extra-curial punishment: see Director of Public Prosecutions v Earle [2023] ACTSC 93 at [39].

Comparative cases

89․The Court is required by s 33(1)(za) of the Crimes (Sentencing) Act to consider sentences imposed in comparative cases when determining the sentences to be imposed on the offender.
90․Neither the offender, nor the prosecution provided the Court with any comparative cases. However, that information was recently provided to the Court in connection with the sentencing of another young offender for sexual assault without consent in Director of Public Prosecutions v Umunakwe (No 2) [2025] ACTSC 139. The table provided in Umunakwe, updated to include sentences imposed since that decision, is attached to this judgment.
91․I have taken the sentences imposed in those decisions into account, whilst bearing in mind the limitations of comparative cases: see, for example, R v Pham [2015] HCA 39; 256 CLR 550 at [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]; Hili v R [2010] HCA 45; 242 CLR 520 at [48]-[49].

Determination

92․The seriousness of offences of sexual intercourse without consent has been long recognised. The victim impact statement demonstrates why this is so. The offending has had a profound impact upon the victim’s mental health, her career, and her relationships.
93․As outlined above, whilst I have held that the offender knew that the victim was not consenting, this is a case in which recklessness (that is, where an offender contemplated the possibility that a victim does not consent and proceeds nonetheless) would be no less serious. The offender prioritised his own sexual gratification over any consideration of the victim. His sense of entitlement has occasioned far-reaching harm to the victim. As well as recognising the infliction of that harm, the sentences to be imposed must be sufficient to denounce the offending, to hold the offender accountable for his actions and to deter similar conduct by others.
94․Acknowledging these matters, the offender’s counsel properly conceded that the s 10 threshold is crossed, and that no sentence other than imprisonment is appropriate for Counts 1 and 2.
95․The offender’s counsel submitted that the s 10 threshold was not crossed for Count 3, because “considered alone”, the assault would not have warranted a sentence of imprisonment. I do not agree. The context of the assault is important. It occurred whilst the victim was naked and vulnerable in her bed. It involved repeated acts of violence that were inflicted upon different parts of the victim’s body and was the precursor to two acts of sexual intercourse without consent.
96․Countervailing against the purposes of sentence to which I have referred is the need to facilitate the rehabilitation of the offender. The offender was 22 years old at the time of the offending, and is now 25 years old. As is well recognised, “emotional maturity and impulse control develop progressively during adolescence and early adulthood”: Sarhene v R [2022] NSWCCA 79 at [25]. The offending in the present case may be explained in part by the offender’s lack of emotional maturity. The weight to be given to the need for rehabilitation is heightened for such an offender. As outlined above, I have also taken into account the burden of imprisonment for a young man, serving a first sentence of imprisonment, far from the support of his family and friends.
97․However, even taking these matters into account, the offending remains too serious for a sentence other than full time imprisonment to be imposed. As Taylor J recently observed in Director of Public Prosecutions v Benn (No 2) [2025] ACTSC 266 at [115]:
Sexual offending by its nature represents an acutely intimate type of violation. The right to determine how and when to engage in sexual activity with another person is fundamental to the human experience. It need hardly be said that the community rightly expects sentencing courts to make clear their condemnation of conduct which infringes that right.
98․The individual sentences to be imposed will be three years’ imprisonment for Count 2; two years' imprisonment for Count 1 and one years’ imprisonment for Count 6.
99․The three offences occurred as a part of a single connected course of conduct which occurred over a relatively short period of time. For this reason, the sentences to be imposed will be largely concurrent. However, as each offence was constituted by separate acts, which caused separate harm to the victim, there will be some accumulation in the sentences to be imposed for each count.
100․Bearing in mind the youth of the offender, I am satisfied that this is a matter where a partially suspended sentence would best achieve the competing purposes of punishment and rehabilitation. In my view, suspension of the sentence after a period of 15 months of full-time custody will give proper weight to the rehabilitation of the offender, whilst meeting the need for denunciation, deterrence, punishment, accountability and recognition of the harm caused to the victim.
101․The offender has served 8 days in custody, bail refused, following the jury’s verdicts. The sentences will be back-dated to take account of this pre-sentence custody.

Orders

102․Accordingly, the offender is sentenced to the following:
(a)For Count 2, the offender is convicted, and I impose a sentence of 3 years’ imprisonment commencing from 8 July 2025 and expiring on 7 July 2028.
(b)For Count 1, the offender is convicted, and I impose a sentence of 2 years’ imprisonment commencing from 23 August 2026 and expiring on 22 August 2028.
(c)For Count 6, the offender is convicted, and I impose a sentence of 1 year’s imprisonment commencing from 8 October 2027 and expiring on 7 October 2028.
(d)The total effective sentence will be a period of imprisonment of 3 years and 3 months, commencing on 8 July 2025 and expiring on 7 October 2028.
(e)The sentence is to be suspended after a period of 15 months’ imprisonment on 7 October 2026, upon the offender entering into a Good Behaviour Order with core conditions for the remainder of the sentence.

I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 22 October 2025

**************

Amendments

20 October 2025 At [102](b), substitute “21 August 2026” with “23 August 2026”

At [102](b), substitute “20 August 2028” with “22 August 2028”
At [102](a),(b) and (c), after each count number, add “the offender is convicted, and”
At [102](e), at the end of the sentence, add “upon the offender entering into a Good Behaviour Order with core conditions for the remainer of the sentence”

ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances	Subjective Circumstances	Sentence imposed
DPP v Benn (No 2) [2025] ACTSC 266 (Taylor J)	Charges: 2 x sexual intercourse without consent 1 x assault occasioning actual bodily harm At the time of the offending, the victim was the offender’s wife. On the date of the first offence, the victim and the offender were together at her house. An argument commenced between them. The victim was bent down over the dishwasher in the kitchen. The offender shoved the victim in her upper back, causing her to fall over and hit her shin. The victim sustained a cut and bruising to her shin. The offender turned around and went to make a coffee in the pantry. Approximately a week later, the victim was asleep in her bedroom. She had gone to bed alone. She woke up later in the night to find the offender under her blankets. The offender had taken off her clothes and was in between her legs licking her vagina. The victim pushed the offender away and asked, “what are you doing?” The offender replied, “you are still my wife”, and then left the room. Three days later, the offender left their house and went to reside interstate until alternative living arrangements could be made. Three years later, the offender and victim were at their house. The victim and offender had been drinking in the evening and subsequently went to bed. The victim woke up in the night. She found that the offender was engaging in penile-vaginal intercourse with her. The victim asked the offender what he was doing, and the offender told her that he was asleep and did not know he was doing it. The victim got out of bed and had a shower as she felt disgusting. One additional related offence concerning an act of indecency without consent was taken into account. Transferred charges of destroying/damaging property and common assault were also considered for sentencing.	Guilty plea for one count of sexual intercourse without consent (the offence that occurred three years after). Found guilty after trial on 2 other charges. The offender was 36 and 39-40 years at the time of offending. The offender had a positive and happy upbringing and reported no instances of domestic violence or substance use. Stable accommodation and employment were available to the offender. The offender expressed no remorse and stated that the victim had “manipulated and misled” the criminal justice system.	Assault occasioning actual bodily harm: 2 months’ imprisonment. Sexual intercourse without consent: 2 years’ imprisonment. Sexual intercourse without consent (guilty plea applicable): 2 years, 10 months’ imprisonment. One month of concurrent imprisonment plus fines were imposed in relation to the transferred charges. Total sentence of 3 years, 10 months’ imprisonment. Non-parole period of 1 year, 5 months.
DPP v Lodding (No 5) [2025] ACTSC 240 (Burns AJ)	Charges: 1 x sexual intercourse without consent The offender was in a relationship with the victim’s mother and resided with the victim’s mother. The victim, who was 16 years old, primarily resided with her father but came to stay with her mother and the offender for two weeks. The offender made sexual comments towards the victim over the course of her stay. On the day of the offence, the victim had consumed alcohol and cannabis until she was acutely intoxicated. The victim retired to her bedroom and lay down on an inflatable mattress. The victim’s mother placed a bucket beside the victim into which the victim vomited. The victim’s friend, who was staying at the residence as well, came to check that the victim was okay and then left the residence. Soon after, the offender entered the room and began rubbing the victim’s thigh. The offender ceased his behaviour when the victim’s mother returned to clean the bucket out. The victim requested that her mother call her friend and ask her friend to return. The victim’s mother left the room to do so. The offender re-commenced rubbing the victim’s thigh. Subsequently, he put his hand inside her tights and under her underwear. The offender rubbed the victim’s clitoris before inserting a finger into the victim’s vagina. During this period, the victim had her eyes closed and felt unable to do anything to stop the offender. The offender would periodically cease his conduct when the victim’s mother entered the room. The offending concluded on one occasion when the victim’s mother returned, and the offender said he was going to bed and left the room.	Found guilty after trial. Offender was 35 years old at the time of offending. The offender had a positive family environment. He had stable accommodation, family support and no issues with substance abuse. The offender had a consistent work history however his employment was terminated following his conviction.	2 years, 10 months’ imprisonment. Suspended on 1 year and 3 months upon entering a good behaviour order for the remaining period.
DPP v Ivanovski [2025] ACTSC 237 (Burns AJ)	Charges: 1 x sexual intercourse without consent The victim was working as an escort at a bar and commercial brothel. The establishment did not offer unprotected sexual services. The offender made a booking with the victim and told her he wanted to have unprotected sexual intercourse with her. The victim told the offender that he was required to use a condom if he wanted to have sex. The offender became irritated but agreed to use a condom. The offender was unable to sustain an erection with the condom on. During the booking, the offender turned the victim over so that she was on her hands and knees facing away from the offender. The offender then removed the condom and engaged in penile-vaginal intercourse. Soon after, the victim’s booking timer went off, and the victim told the offender that it was time to leave. At this point, the victim then saw that the offender was not wearing a condom. The victim made an immediate complaint to the manager that the offender had stealthed her.	Found guilty after trial. Offender was 34 years old at the time of the offence. Offender had a relatively stable family history. He had no history of substance abuse or criminal activity. Offender had a very good work history. He continued to deny committing the offence.	Two years, six months’ imprisonment. Suspended on one year upon entering a good behaviour order for the remaining period.
DPP v Ware [2024] ACTSC 52 (Berman AJ) Ware v DPP [2025] ACTCA 15 (Loukas-Karlsson, Baker and Taylor JJ)	Charges: 2 x sexual intercourse without consent The offender and the victim were neighbours. They spent time together consuming drugs which were usually supplied by the offender. On the date of the first count, the offender and the victim were in the victim’s home. They consumed methylamphetamine together and fell asleep on a couch. The victim later woke up but felt unable to move. The offender was behind her. He pulled her clothes down and engaged in penile-vaginal intercourse with the victim. The victim did not say or do anything to indicate that she was consenting. The victim continued to associate with the offender, and further acts of sexual intercourse occurred, the victim saying that each was without consent. The second count relates to the final occasion on which the offender and the victim had sex. The offender invited the victim to his home where they consumed methylamphetamine together. They were seated on a couch. The offender began moving towards the victim, who moved away. The offender picked the victim up, carried her to his bed, removed her clothes and commenced penile-vaginal intercourse with her. At one stage, the offender told the victim to get on top of him. She did so because she was afraid of him. The victim did not do or say anything to indicate that she was consenting. The offender was tried and convicted before a jury and was subsequently sentenced. The offender was also sentenced for unrelated historical offences committed in 2013-2014, though these were imposed on a concurrent basis. The offender appealed the conviction on the ground that the decisions were unsafe and unsatisfactory having regard to the evidence. The appeal was dismissed.	Found guilty after trial. Offender was 36 years old at the time of offending. Offender had a troubled background particularly in regard to his family life. Offender had a history of troubles with drugs. He had a lengthy criminal history and mental health troubles, but these did not affect his capacity to form judgements.	Sentence imposed by Berman AJ, upheld by the Court of Appeal. Three years’ imprisonment for each count. Total sentence of four years’ imprisonment. Non-parole period of three years.
DPP v Hojlund (No 2) [2025] ACTSC 211 (Baker J)	Charges: 1 x aggravated intimate observations or capturing visual data 3 x aggravated sexual intercourse without consent 1 x sexual intercourse without consent The offending related to two separate victims over two separate time periods. The first victim and the offender were in a sexual relationship. On the night of the offending, the offender and the first victim went to a hotel. The offender set up a camera facing the bed while the first victim took a shower. The offender came to the shower and injected the first victim with MDMA and methamphetamine. The offender assisted the first victim on to the bed. They engaged in consensual sexual intercourse. The offender then injected the first victim with GHB and she lost consciousness. When the first victim regained consciousness the next morning, she felt unwell. The first victim later discovered the offender’s videos of the hotel room. During the entirety of the conduct depicted on the videos, the first victim was unconscious. The videos depicted three counts of aggravated sexual intercourse without consent, and one count of aggravated common assault, being spitting on the first victim. The second victim and the offender had also been in a sexual relationship. On an unknown date during their relationship, the second victim consumed an unknown substance and lost consciousness. After regaining consciousness, the offender told the second victim that while he was asleep, the offender had engaged in penile-anal intercourse with the second victim. On another date, the offender and the second victim hosted a gathering at the second victim’s house. The second victim recalled being in the lounge room. His next memory was waking up alone in the bedroom. When he returned to the lounge room, the offender showed the second victim a video on his phone. The second victim recognised his own bedroom in the video. The video depicted the offender engaging in penile-anal intercourse with the person on the bed. The offender told the second victim that the person in the video was the second victim, and that “I just had sex with you whilst you were passed out”. Additional offences of aggravated common assault and making intimate observations taken into account.	Guilty plea. The offender was aged between 26 and 27 years of age at the time of offending. The offender did not have a traumatic childhood. The offender was homeless for 5 years prior to offending. The offender did not have employment and had a history of illicit substance use. The offender reported mental health issues, and showed a limited degree of remorse for his offending.	Aggravated intimate observations: 1 year, 10 months and 14 days’ imprisonment Aggravated sexual intercourse without consent: 5 years, 2 months and 14 days’ imprisonment Aggravated sexual intercourse without consent: 3 years, 3 months and 14 days’ imprisonment. Aggravated sexual intercourse without consent: 3 years, 3 months and 14 days’ imprisonment. Sexual intercourse without consent: 3 years, 7 months’ imprisonment. Total sentence of 9 years, 3 months and 11 days’ imprisonment. Non-parole period of 6 years.
DPP v Smith (No 5) [2025] ACTSC 188 (Mossop J)	Charges: 1 x sexual intercourse without consent 1 x act of indecency without consent 1 x common assault The offender was living with the victim. She was approximately 34 weeks pregnant. The offender went out with his older brother, and consumed methamphetamine, cocaine and alcohol while he was out. When the offender came home, he accused the victim of having someone there with her. He was initially behaving reasonably but then switched and made violent threats. The victim went back to sleep. The offender subsequently woke her up because he wanted to have sex. The victim said no. The offender made the victim get on her knees and perform oral sex on him. The offender also touched the outside of the victim’s vagina and said “who’s been in there”, alleging that she had been with someone else. After the offence, the victim cried herself back to sleep. When she woke up, she ordered pizza as she was hungry. The offender interpreted the pizza delivery person as being “someone sneaking around the back that he thought was over the night before”. The offender made several threats against the victim. He took off his shoe and hit the victim in the face with it.	Found guilty after trial and hearing of transfer charge (common assault). The offender was 18 years old at the time of offending. The offender suffered from schizophrenia or a schizophrenia-related condition. He had a history of illicit substance use. The offender had a very poor criminal history.	Sexual intercourse without consent: Three years’ imprisonment Act of indecency: Two months’ imprisonment Common assault: Three months’ imprisonment Total sentence of 3 years, 3 months’ imprisonment. Non-parole period of 23 months.
DPP v Umunakwe (No 2) [2025] ACTSC 139 (Baker J)	Charges: 1 x sexual intercourse without consent The victim went to several nightclubs in Civic with friends. On that evening, the offender was also out in Civic with several friends. The victim and offender danced together and kissed over the course of the evening at one nightclub. The victim eventually left the nightclub and went to a different one, which the offender was already at. The offender and the victim went to the male bathroom together and walked into the disabled stall. The offender requested that the victim perform oral sex upon him, which she refused. The offender told the victim to get up against the wall and inserted his penis into the victim’s vagina. (Count 1) The offender then turned the victim around to face him and asked again for her to perform oral sex upon him, which the victim refused again. The offender then turned the victim back around and again inserted his penis into her vagina. (Count 2) The victim repeatedly told the accused to stop, tried to get away and was crying. The victim also gave evidence that the offender also inserted his penis into her anus without consent. (Count 3). The offender was found guilty by a jury of Count 2 only.	Found guilty after trial The offender was 21 years old at the time of the offending. He had a history of substance abuse and a criminal record with one previous incident. The offender expressed limited remorse for his offending. The offender was at risk of deportation due to the sentence. The offence was committed 16 months after the imposition of a good behaviour order, and 2 months before it concluded.	3 years imprisonment. Non-parole period of 2 years.
DPP v Ierfone [2025] ACTSC 60 (Taylor J)	Charges: 1x act of indecency without consent 1x sexual intercourse without consent The offender and victim were colleagues. They attended a Christmas party together in December 2022. The offender touched the victim’s breasts which was captured on CCTV. The victim offered to drive the offender home in her vehicle. The offender asked to go home with the victim and she declined. The offender digitally penetrated the victim’s vagina over her stockings in her car.	Found guilty after trial Offender was 29 years of age at time of sentence and reported stable upbringing and employment history. Offender showed little remorse.	Sexual intercourse without consent: Convicted and sentenced to two years of imprisonment. Act of indecency without consent: Convicted and sentenced to 10 months imprisonment. Sentences partially cumulative. Total term of imprisonment for two years and four months. Sentence to be suspended after offender spent four months in custody.
DPP v Williams [2024] ACTSC 283 (Taylor J)	Charges: 1 x sexual intercourse without consent The offender and the victim had been in a relationship, broken up but had reunited to “work things out”. The victim allowed the offender to stay the night at her residence. They went to bed together. The victim woke up as the offender pushed her onto her left side and inserted his penis into her vagina. The victim asked “what are you doing?” and the offender responded “just relax”. The offender continued to engage in penile-vaginal sexual intercourse with the victim for about 10-15 minutes until he ejaculated.	Guilty plea (discount of 20% applied) The offender was 52 years of age and pleaded guilty. He lacked genuine remorse and insight into his offending. He disclosed problematic alcohol use.	Two years imprisonment suspended after serving six months in custody and entering into a GBO for 12 months.
DPP v Aghahosseini [2024] ACTSC 237 (McCallum CJ)	Charges: 4x sexual intercourse without consent 2x acts of indecency 4x further dishonesty/personal violence offences The victim (19) and offender (37) met on a dating app. The offender messaged the victim offering money to meet up in person and watch the victim undress. After meeting up, the offender kissed and bit the victim’s neck and nipples. The victim audibly protested. The offender penetrated the victim’s anus with his finger and penis. The offender then forced the offender to engage in oral intercourse. Later, after the victim and offender left to obtain funds to pay the victim, they returned to the accommodation and the offender again anally penetrated the victim. The offender again forced the victim to perform oral sex.	Guilty plea (discount of 15% to 20% applied) The offender was 39 years old had limited supports in Australia and had been employed sporadically. He had an illicit substance issue. Offender also sentenced for theft, robbery and assault.	Count 1 (sexual intercourse without consent): two years and six months imprisonment Count 2 (sexual intercourse without consent): two years and six months imprisonment Count 3 (sexual intercourse without consent): two years and six months imprisonment Count 4 (sexual intercourse without consent): two years and six months imprisonment Sexual offence sentences partially concurrent and totalling four years. Total sentence for all offences of six years. Total non-parole period of four years.
DPP v Mack [2024] ACTSC 227 (McCallum CJ)	Charges: 2x counts of sexual intercourse without consent 1x count of threatening to distribute intimate images The offender and victim met a bar. Later in the evening, they crossed the road to an alleyway and carpark. The offender asked the victim if she wanted to have sex. She said she did not. They kissed and the offender digitally penetrated the victim’s vagina, which was consensual, but filmed the act, which was non-consensual. The offender told the victim to sit on a trolley and wrote several words on exposed parts of her body including on her breasts and vulva. The offender took several photos and videos of the victim without her consent. The offender forced the victim to perform oral sex. They engaged in consensual penile-vaginal sex before the offender removed the condom. The victim told him she would not have intercourse without a condom. The offender proceeded to have further, non-consensual penile-vaginal intercourse with her.	Guilty plea (discount of 15% applied) The offender was 19 years of age at the time of offending and had a substance use disorder.	Threatening to distribute images: five months imprisonment Sexual intercourse without consent: one year and eight months imprisonment Sexual intercourse without consent: two years and one month imprisonment. All sentences concurrent. Non-parole period of two years.
DPP v Rue [2023] ACTSC 270 (Taylor J)	Charges: 1x Act of indecency without consent 1x sexual intercourse without consent The offender and the victim met in October 2019. The offender was a friend of the victim’s partner at the time. Prior to the offending, the offender had purchased drugs from the victim on a few occasions. He had also previously engaged in drug use at the victim’s residence. There was no prior romantic or sexual relationship between the offender and the victim. On the evening of the offending, the offender came over to the victim’s house. They took drugs and the victim turned on the CCTV camera above her bed as she had a “bad feeling”. The victim passed out at some stage. The offender spent approximately 44 minutes touching the victim’s vaginal area and legs, placing his fingers inside her underwear and rubbing and touching her breasts stopping only when she appeared to stir or regain consciousness (Rolled up count, act of indecency without consent). The offender then removed the victim’s pants and began to perform cunnilingus, digitally penetrated her vagina and then penetrated her vagina with his penis (rolled up count, sexual intercourse without consent).	Guilty plea (discounts of 5% and 15% applied) Offender had limited pro social connections, was a significant drug user and reported poor mental health.	Act of indecency without consent: Convicted and sentenced to 19 months imprisonment (six months cumulative for sexual intercourse without consent sentence) Sexual intercourse without consent: Convicted and sentenced to 35 months imprisonment. Total head sentence of three years and five months. Non parole period of one year and 10 months.
Okwechime v The Queen [2023] ACTCA 25 (McCallum CJ, Mossop and Charlesworth JJ)	Charges: 1 x sexual intercourse without consent (oral sex) 1 x sexual intercourse without consent (penile-vaginal) 1 x act endangering health (Choke) The victim and the offender and his friends arrived at a nightclub together. The victim had been in company with the offender and his friends for approximately two hours. The victim and the offender left the nightclub together at about 4:15 am and arrived at the offender’s apartment for a party. On arrival, the victim realised there was not going to be a party so she asked the offender if she could charge her phone and then go home. Whilst inside the apartment, the offender began kissing the victim and the victim told him to stop. The victim initially consented to oral sex and digital penetration but after some time the victim refused consent and tried to wriggle away but could not. [48] The victim was dragged into a room and the offender performed penile-vaginal sex. The victim cried saying: “Please stop this. I want to go home. I want to go to my dad” at which point the offender grabbed her neck and started choking her. The offender was found guilty at trial on three counts. He appealed his conviction on these counts and appealed his sentences for the penile-vaginal intercourse and choking counts. The appeal was dismissed.	No guilty plea The offender was 33 years of age and had a substantial criminal history of dishonesty, driving and drug offences. At the time of the offences, the offender was subject to parole for NSW dishonesty and possession offences.	Sentence imposed by Norrish AJ, upheld by the Court of Appeal. First offence: Convicted and sentenced to two years and six months imprisonment. Second offence: Convicted and sentenced to four years imprisonment. Choking: Convicted and sentenced to one year and three months imprisonment. Choking sentence concurrent to sentence for first offence. Total sentence of five years and three months. Non-parole period of 3 years.
DPP v Jones (No 2) [2023] ACTSC 99 (McCallum CJ)	Charges: 1x sexual intercourse without consent 1x act of indecency without consent The offender and victim were work colleagues and matched on Hinge, a dating application. They had consensual intercourse once in June 2021. In July 2021, the victim confided in the offender about a previous sexual assault. When they got to the victim’s house she told the offender she had vaginal thrush and was in a “bit of pain” and did not wish to engage in any sexual activity that night. The victim went to bed and the offender joined her. The offender started feeling all over the victim’s body and she said nothing and lay still. The offender digitally penetrated the victim while he thought she was asleep. Offender was found guilty at trial.	Found guilty after trial Twenty-seven-year-old young man with employment, social support, no substance issues and no criminal history. Poor attitude to offences. Had underlying chronic mental health conditions and has been suicidal.	Sexual intercourse without consent: two years and six months Imprisonment. Act of indecency: One year imprisonment (six months concurrent) Non parole period of 15 months.
DPP v Earle [2023] ACTSC 93 (McCallum CJ)	Charges: 1 x act of indecency without consent 1 x sexual intercourse without consent The offender and the victim met through a dating application. They had an intimate romantic relationship and when that ended they remained friends. The victim contacted the offender seeking prohibited drugs and invited him to her house and “stay over”. The victim went to bed and fell asleep. She woke up to the offender rubbing her clitoris with his fingers. The offender digitally penetrated the victim’s vagina. The victim alleged that further digital penetration and cunnilingus occurred, which were the acts charged as counts 2 and 3. The jury returned verdicts of not guilty for those counts. The offender then inserted his penis into the victim’s vagina with force without her consent. The victim said “wait, wait, wait” and the offender immediately stopped and asked if she was okay. The victim said he had taken her by surprise and he laughed and apologised.	No guilty plea Offender was person of good character with strong pro-social influences. Relatively young man without any criminal history. Raised in a loving and supportive family and holds strong relationships with friends, family and colleagues. Strong prospects of rehabilitation.	Act of indecency: ICO for one year. Sexual intercourse without consent: ICO for two years and six months. ICOs partially cumulative. 300 hours of community service and 20 hours of counselling.
R v Finau (No 2) [2020] ACTSC 193 (Murrell CJ)	Charges: 1 x sexual intercourse without consent The offender and victim were work colleagues. They met in Civic and attended several night clubs. They shared a taxi to the victim’s residence with the intention that the offender would continue in the taxi to his own residence. He asked if he could come into her apartment for water and to use the toilet before ordering himself another taxi. She agreed. In her apartment, the victim changed into sleeping attire. She returned to the living room where she found the offender lying on the sofa bed in his underwear. She asked him to dress. He began to put the pants on but directed her attention to the fact he had an erection. He pulled her down to kiss her, but she resisted. The offender grabbed the victim and pinned her down to the sofa. He tried to prise her legs open while she resisted. She repeatedly said words to the effect of, “Get off me. This is not happening. Stop it” and “No, stop, I don't want to have sex. I don't want you to do this”. She resisted, pushing against his windpipe and slapping him. The accused became angry and said, “I want this, I'm here”. When she objected, he covered her mouth with his hand, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The victim hit him in the face. He struck her cheekbone and she froze. The offender engaged in penile-vaginal penetration for “less than a minute”. The offender did not use a condom.	Found guilty after trial. The offender had no criminal history, otherwise impeccable character. Stable, loving upbringing. Positive character references. Offending considered out of character.	Two years and six months’ imprisonment. Suspended after 9 months on entering a good behaviour order.
R v Lindsay [2020] ACTCA 25 (Murrell CJ, Mossop J, Crowe AJ)	Charge: 1 x sexual intercourse without consent The offender and the victim had been staying in shared accommodation at a hostel. The offender asked the victim for a kiss and to massage her shoulders. She told him to go away. He then straddled the victim while she was on her back and attempted to pull down her top and bra. She tried to push him away and made it clear that his actions were unwelcome. The respondent grabbed the victim by the throat and pushed her down into the bed. The victim was fearful and said to the respondent, “if I do this, you won’t hurt me?” to which the respondent responded that he would not. The offender engaged in penile-vaginal sexual intercourse with the victim. The Crown appealed the sentence imposed, arguing it was manifestly inadequate. The appeal was dismissed.	Guilty plea (discount of 20% applied) The offender had a lengthy criminal record and serious mental health issues. There was a causal connection between the mental condition and the offending conduct, reducing the offender’s moral culpability and the objective seriousness of the offence.	Sentence imposed by Elkaim J, upheld by the Court of Appeal: Two years imprisonment. Non-parole period of 17 months.
R v Aroub [2017] ACTSC 187 (Murrell CJ)	Charges: 1 x act of indecency 1 x sexual intercourse without consent A jury found the offender guilty of offence of sexual intercourse without consent. The victim accompanied a friend to Civic. During the evening, the friends consumed alcohol at several nightclubs. They met the offender. In the early hours of the morning the victim, her friend, the offender and others went to the offender’s home. Eventually, the victim went to a spare room where she lay down and fell asleep. The victim awoke to find the offender digitally penetrating her. He had unzipped her dress and was kissing her back between the shoulder blades. The victim pushed the offender’s hand away. He smiled and told her to “relax”. She told the offender that she needed to go to the bathroom. She attempted to do so but was unable to open the door as it had no handle. The offender assisted her to open the door and she left the room. The victim found her friend and told her what had occurred. The offender was found guilty by a jury.	Found guilty after trial At the time of the offence, the offender was 25 years old. He had experienced a traumatic upbringing and suffered from depression. He had a criminal history for less serious matters and no prior history of committing sexual offences. He had been on conditional liberty at the time of the offence.	Act of indecency: Convicted and sentenced to two months imprisonment.

Objective Circumstances

Subjective Circumstances

Sentence imposed

DPP v Benn (No 2) [2025] ACTSC 266 (Taylor J)

Charges:

2 x sexual intercourse without consent

1 x assault occasioning actual bodily harm

At the time of the offending, the victim was the offender’s wife. On the date of the first offence, the victim and the offender were together at her house. An argument commenced between them. The victim was bent down over the dishwasher in the kitchen. The offender shoved the victim in her upper back, causing her to fall over and hit her shin. The victim sustained a cut and bruising to her shin. The offender turned around and went to make a coffee in the pantry. Approximately a week later, the victim was asleep in her bedroom. She had gone to bed alone. She woke up later in the night to find the offender under her blankets. The offender had taken off her clothes and was in between her legs licking her vagina. The victim pushed the offender away and asked, “what are you doing?” The offender replied, “you are still my wife”, and then left the room. Three days later, the offender left their house and went to reside interstate until alternative living arrangements could be made. Three years later, the offender and victim were at their house. The victim and offender had been drinking in the evening and subsequently went to bed. The victim woke up in the night. She found that the offender was engaging in penile-vaginal intercourse with her. The victim asked the offender what he was doing, and the offender told her that he was asleep and did not know he was doing it. The victim got out of bed and had a shower as she felt disgusting.

One additional related offence concerning an act of indecency without consent was taken into account. Transferred charges of destroying/damaging property and common assault were also considered for sentencing.

Guilty plea for one count of sexual intercourse without consent (the offence that occurred three years after). Found guilty after trial on 2 other charges.

The offender was 36 and 39-40 years at the time of offending. The offender had a positive and happy upbringing and reported no instances of domestic violence or substance use. Stable accommodation and employment were available to the offender. The offender expressed no remorse and stated that the victim had “manipulated and misled” the criminal justice system.

Assault occasioning actual bodily harm: 2 months’ imprisonment.

Sexual intercourse without consent: 2 years’ imprisonment.

Sexual intercourse without consent (guilty plea applicable): 2 years, 10 months’ imprisonment.

One month of concurrent imprisonment plus fines were imposed in relation to the transferred charges.

Total sentence of 3 years, 10 months’ imprisonment. Non-parole period of 1 year, 5 months.

DPP v Lodding (No 5) [2025] ACTSC 240 (Burns AJ)

Charges:

1 x sexual intercourse without consent

The offender was in a relationship with the victim’s mother and resided with the victim’s mother. The victim, who was 16 years old, primarily resided with her father but came to stay with her mother and the offender for two weeks. The offender made sexual comments towards the victim over the course of her stay. On the day of the offence, the victim had consumed alcohol and cannabis until she was acutely intoxicated. The victim retired to her bedroom and lay down on an inflatable mattress. The victim’s mother placed a bucket beside the victim into which the victim vomited. The victim’s friend, who was staying at the residence as well, came to check that the victim was okay and then left the residence. Soon after, the offender entered the room and began rubbing the victim’s thigh. The offender ceased his behaviour when the victim’s mother returned to clean the bucket out. The victim requested that her mother call her friend and ask her friend to return. The victim’s mother left the room to do so. The offender re-commenced rubbing the victim’s thigh. Subsequently, he put his hand inside her tights and under her underwear. The offender rubbed the victim’s clitoris before inserting a finger into the victim’s vagina. During this period, the victim had her eyes closed and felt unable to do anything to stop the offender. The offender would periodically cease his conduct when the victim’s mother entered the room. The offending concluded on one occasion when the victim’s mother returned, and the offender said he was going to bed and left the room.

Found guilty after trial.

Offender was 35 years old at the time of offending. The offender had a positive family environment. He had stable accommodation, family support and no issues with substance abuse. The offender had a consistent work history however his employment was terminated following his conviction.

2 years, 10 months’ imprisonment.

Suspended on 1 year and 3 months upon entering a good behaviour order for the remaining period.

DPP v Ivanovski [2025] ACTSC 237 (Burns AJ)

Charges:

1 x sexual intercourse without consent

The victim was working as an escort at a bar and commercial brothel. The establishment did not offer unprotected sexual services. The offender made a booking with the victim and told her he wanted to have unprotected sexual intercourse with her. The victim told the offender that he was required to use a condom if he wanted to have sex. The offender became irritated but agreed to use a condom. The offender was unable to sustain an erection with the condom on. During the booking, the offender turned the victim over so that she was on her hands and knees facing away from the offender. The offender then removed the condom and engaged in penile-vaginal intercourse. Soon after, the victim’s booking timer went off, and the victim told the offender that it was time to leave. At this point, the victim then saw that the offender was not wearing a condom. The victim made an immediate complaint to the manager that the offender had stealthed her.

Found guilty after trial.

Offender was 34 years old at the time of the offence. Offender had a relatively stable family history. He had no history of substance abuse or criminal activity. Offender had a very good work history. He continued to deny committing the offence.

Two years, six months’ imprisonment.

Suspended on one year upon entering a good behaviour order for the remaining period.

DPP v Ware [2024] ACTSC 52 (Berman AJ)

Ware v DPP [2025] ACTCA 15 (Loukas-Karlsson, Baker and Taylor JJ)

Charges:

2 x sexual intercourse without consent

The offender and the victim were neighbours. They spent time together consuming drugs which were usually supplied by the offender. On the date of the first count, the offender and the victim were in the victim’s home. They consumed methylamphetamine together and fell asleep on a couch. The victim later woke up but felt unable to move. The offender was behind her. He pulled her clothes down and engaged in penile-vaginal intercourse with the victim. The victim did not say or do anything to indicate that she was consenting. The victim continued to associate with the offender, and further acts of sexual intercourse occurred, the victim saying that each was without consent. The second count relates to the final occasion on which the offender and the victim had sex. The offender invited the victim to his home where they consumed methylamphetamine together. They were seated on a couch. The offender began moving towards the victim, who moved away. The offender picked the victim up, carried her to his bed, removed her clothes and commenced penile-vaginal intercourse with her. At one stage, the offender told the victim to get on top of him. She did so because she was afraid of him. The victim did not do or say anything to indicate that she was consenting.

The offender was tried and convicted before a jury and was subsequently sentenced. The offender was also sentenced for unrelated historical offences committed in 2013-2014, though these were imposed on a concurrent basis. The offender appealed the conviction on the ground that the decisions were unsafe and unsatisfactory having regard to the evidence. The appeal was dismissed.

Found guilty after trial.

Offender was 36 years old at the time of offending. Offender had a troubled background particularly in regard to his family life. Offender had a history of troubles with drugs. He had a lengthy criminal history and mental health troubles, but these did not affect his capacity to form judgements.

Sentence imposed by Berman AJ, upheld by the Court of Appeal.

Three years’ imprisonment for each count.

Total sentence of four years’

imprisonment.

Non-parole period of three years.

DPP v Hojlund (No 2) [2025] ACTSC 211 (Baker J)

Charges:

1 x aggravated intimate observations or capturing visual data

3 x aggravated sexual intercourse without consent

1 x sexual intercourse without consent

The offending related to two separate victims over two separate time periods. The first victim and the offender were in a sexual relationship. On the night of the offending, the offender and the first victim went to a hotel. The offender set up a camera facing the bed while the first victim took a shower. The offender came to the shower and injected the first victim with MDMA and methamphetamine. The offender assisted the first victim on to the bed. They engaged in consensual sexual intercourse. The offender then injected the first victim with GHB and she lost consciousness. When the first victim regained consciousness the next morning, she felt unwell. The first victim later discovered the offender’s videos of the hotel room. During the entirety of the conduct depicted on the videos, the first victim was unconscious. The videos depicted three counts of aggravated sexual intercourse without consent, and one count of aggravated common assault, being spitting on the first victim.

The second victim and the offender had also been in a sexual relationship. On an unknown date during their relationship, the second victim consumed an unknown substance and lost consciousness. After regaining consciousness, the offender told the second victim that while he was asleep, the offender had engaged in penile-anal intercourse with the second victim. On another date, the offender and the second victim hosted a gathering at the second victim’s house. The second victim recalled being in the lounge room. His next memory was waking up alone in the bedroom. When he returned to the lounge room, the offender showed the second victim a video on his phone. The second victim recognised his own bedroom in the video. The video depicted the offender engaging in penile-anal intercourse with the person on the bed. The offender told the second victim that the person in the video was the second victim, and that “I just had sex with you whilst you were passed out”.

Additional offences of aggravated common assault and making intimate observations taken into account.

Guilty plea.

The offender was aged between 26 and 27 years of age at the time of offending. The offender did not have a traumatic childhood. The offender was homeless for 5 years prior to offending. The offender did not have employment and had a history of illicit substance use. The offender reported mental health issues, and showed a limited degree of remorse for his offending.

Aggravated intimate observations: 1 year, 10 months and 14 days’ imprisonment

Aggravated sexual intercourse without consent: 5 years, 2 months and 14 days’ imprisonment

Aggravated sexual intercourse without consent: 3 years, 3 months and 14 days’ imprisonment.

Sexual intercourse without consent: 3 years, 7 months’ imprisonment.

Total sentence of 9 years, 3 months and 11 days’ imprisonment. Non-parole period of 6 years.

DPP v Smith (No 5) [2025] ACTSC 188 (Mossop J)

Charges:

1 x sexual intercourse without consent

1 x act of indecency without consent

1 x common assault

The offender was living with the victim. She was approximately 34 weeks pregnant. The offender went out with his older brother, and consumed methamphetamine, cocaine and alcohol while he was out. When the offender came home, he accused the victim of having someone there with her. He was initially behaving reasonably but then switched and made violent threats. The victim went back to sleep. The offender subsequently woke her up because he wanted to have sex. The victim said no. The offender made the victim get on her knees and perform oral sex on him. The offender also touched the outside of the victim’s vagina and said “who’s been in there”, alleging that she had been with someone else. After the offence, the victim cried herself back to sleep. When she woke up, she ordered pizza as she was hungry. The offender interpreted the pizza delivery person as being “someone sneaking around the back that he thought was over the night before”. The offender made several threats against the victim. He took off his shoe and hit the victim in the face with it.

Found guilty after trial and hearing of transfer charge (common assault).

The offender was 18 years old at the time of offending. The offender suffered from schizophrenia or a schizophrenia-related condition. He had a history of illicit substance use. The offender had a very poor criminal history.

Sexual intercourse without consent: Three years’ imprisonment

Act of indecency: Two months’ imprisonment

Common assault: Three months’ imprisonment

Total sentence of 3 years, 3 months’ imprisonment. Non-parole period of 23 months.

DPP v Umunakwe (No 2) [2025] ACTSC 139 (Baker J)

Charges:

1 x sexual intercourse without consent

The victim went to several nightclubs in Civic with friends. On that evening, the offender was also out in Civic with several friends. The victim and offender danced together and kissed over the course of the evening at one nightclub. The victim eventually left the nightclub and went to a different one, which the offender was already at. The offender and the victim went to the male bathroom together and walked into the disabled stall. The offender requested that the victim perform oral sex upon him, which she refused. The offender told the victim to get up against the wall and inserted his penis into the victim’s vagina. (Count 1) The offender then turned the victim around to face him and asked again for her to perform oral sex upon him, which the victim refused again. The offender then turned the victim back around and again inserted his penis into her vagina. (Count 2) The victim repeatedly told the accused to stop, tried to get away and was crying. The victim also gave evidence that the offender also inserted his penis into her anus without consent. (Count 3). The offender was found guilty by a jury of Count 2 only.

Found guilty after trial

The offender was 21 years old at the time of the offending. He had a history of substance abuse and a criminal record with one previous incident. The offender expressed limited remorse for his offending. The offender was at risk of deportation due to the sentence. The offence was committed 16 months after the imposition of a good behaviour order, and 2 months before it concluded.

3 years imprisonment. Non-parole period of 2 years.

DPP v Ierfone [2025] ACTSC 60 (Taylor J)

Charges:

1x act of indecency without consent

1x sexual intercourse without consent

The offender and victim were colleagues. They attended a Christmas party together in December 2022. The offender touched the victim’s breasts which was captured on CCTV. The victim offered to drive the offender home in her vehicle. The offender asked to go home with the victim and she declined. The offender digitally penetrated the victim’s vagina over her stockings in her car.

Found guilty after trial

Offender was 29 years of age at time of sentence and reported stable upbringing and employment history. Offender showed little remorse.

Sexual intercourse without consent: Convicted and sentenced to two years of imprisonment.

Act of indecency without consent: Convicted and sentenced to 10 months imprisonment.

Sentences partially cumulative. Total term of imprisonment for two years and four months.

Sentence to be suspended after offender spent four months in custody.

DPP v Williams

[2024] ACTSC 283 (Taylor J)

Charges:

1 x sexual intercourse without consent

The offender and the victim had been in a relationship, broken up but had reunited to “work things out”. The victim allowed the offender to stay the night at her residence. They went to bed together. The victim woke up as the offender pushed her onto her left side and inserted his penis into her vagina. The victim asked “what are you doing?” and the offender responded “just relax”. The offender continued to engage in penile-vaginal sexual intercourse with the victim for about 10-15 minutes until he ejaculated.

Guilty plea (discount of 20% applied)

The offender was 52 years of age and pleaded guilty. He lacked genuine remorse and insight into his offending. He disclosed problematic alcohol use.

Two years imprisonment

suspended after serving six

months in custody and

entering into a GBO for 12

months.

DPP v Aghahosseini [2024] ACTSC 237 (McCallum CJ)

Charges: 4x sexual intercourse without consent

2x acts of indecency

4x further dishonesty/personal violence offences

The victim (19) and offender (37) met on a dating app. The offender messaged the victim offering money to meet up in person and watch the victim undress. After meeting up, the offender kissed and bit the victim’s neck and nipples. The victim audibly protested. The offender penetrated the victim’s anus with his finger and penis. The offender then forced the offender to engage in oral intercourse. Later, after the victim and offender left to obtain funds to pay the victim, they returned to the accommodation and the offender again anally penetrated the victim. The offender again forced the victim to perform oral sex.

Guilty plea (discount of 15% to 20% applied)

The offender was 39 years old had limited supports in Australia and had been employed sporadically. He had an illicit substance issue. Offender also sentenced for theft, robbery and assault.

Count 1 (sexual intercourse without consent): two years and six months imprisonment

Count 2 (sexual intercourse without consent): two years and six months imprisonment

Count 3 (sexual intercourse without consent): two years and six months imprisonment

Count 4 (sexual intercourse without consent): two years and six months imprisonment

Sexual offence sentences partially concurrent and totalling four years.

Total sentence for all offences of six years.

Total non-parole period of four years.

DPP v Mack [2024] ACTSC 227 (McCallum CJ)

Charges: 2x counts of sexual intercourse without consent

1x count of threatening to distribute intimate images

The offender and victim met a bar. Later in the evening, they crossed the road to an alleyway and carpark. The offender asked the victim if she wanted to have sex. She said she did not. They kissed and the offender digitally penetrated the victim’s vagina, which was consensual, but filmed the act, which was non-consensual. The offender told the victim to sit on a trolley and wrote several words on exposed parts of her body including on her breasts and vulva. The offender took several photos and videos of the victim without her consent. The offender forced the victim to perform oral sex. They engaged in consensual penile-vaginal sex before the offender removed the condom. The victim told him she would not have intercourse without a condom. The offender proceeded to have further, non-consensual penile-vaginal intercourse with her.

Guilty plea (discount of 15% applied)

The offender was 19 years of age at the time of offending and had a substance use disorder.

Threatening to distribute images: five months imprisonment

Sexual intercourse without consent: one year and eight months imprisonment

Sexual intercourse without consent: two years and one month imprisonment.

All sentences concurrent.

Non-parole period of two years.

DPP v Rue [2023] ACTSC 270 (Taylor J)

Charges:

1x Act of indecency without consent

1x sexual intercourse without consent

The offender and the victim met in October 2019. The offender was a friend of the victim’s partner at the time. Prior to the offending, the offender had purchased drugs from the victim on a few occasions. He had also previously engaged in drug use at the victim’s residence. There was no prior romantic or sexual relationship between the offender and the victim. On the evening of the offending, the offender came over to the victim’s house. They took drugs and the victim turned on the CCTV camera above her bed as she had a “bad feeling”. The victim passed out at some stage. The offender spent approximately 44 minutes touching the victim’s vaginal area and legs, placing his fingers inside her underwear and rubbing and touching her breasts stopping only when she appeared to stir or regain consciousness (Rolled up count, act of indecency without consent). The offender then removed the victim’s pants and began to perform cunnilingus, digitally penetrated her vagina and then penetrated her vagina with his penis (rolled up count, sexual intercourse without consent).

Guilty plea (discounts of 5% and 15% applied)

Offender had limited pro social connections, was a significant drug user and reported poor mental health.

Act of indecency without consent: Convicted and sentenced to 19 months imprisonment (six months cumulative for sexual intercourse without consent sentence)

Sexual intercourse without consent: Convicted and sentenced to 35 months imprisonment.

Total head sentence of three years and five months.

Non parole period of one year and 10 months.

Okwechime v The Queen [2023] ACTCA 25 (McCallum CJ, Mossop and Charlesworth JJ)

Charges: 1 x sexual intercourse without consent (oral sex)

1 x sexual intercourse without consent (penile-vaginal)

1 x act endangering health (Choke)

The victim and the offender and his friends arrived at a nightclub together. The victim had been in company with the offender and his friends for approximately two hours. The victim and the offender left the nightclub together at about 4:15 am and arrived at the offender’s apartment for a party. On arrival, the victim realised there was not going to be a party so she asked the offender if she could charge her phone and then go home. Whilst inside the apartment, the offender began kissing the victim and the victim told him to stop. The victim initially consented to oral sex and digital penetration but after some time the victim refused consent and tried to wriggle away but could not. [48] The victim was dragged into a room and the offender performed penile-vaginal sex. The victim cried saying: “Please stop this. I want to go home. I want to go to my dad” at which point the offender grabbed her neck and started choking her. The offender was found guilty at trial on three counts. He appealed his conviction on these counts and appealed his sentences for the penile-vaginal intercourse and choking counts. The appeal was dismissed.

No guilty plea

The offender was 33 years of age and had a substantial criminal history of dishonesty, driving and drug offences. At the time of the offences, the offender was subject to parole for NSW dishonesty and possession offences.

Sentence imposed by Norrish AJ, upheld by the Court of Appeal.

First offence: Convicted and sentenced to two years and six months imprisonment.

Second offence: Convicted and sentenced to four years imprisonment.

Choking: Convicted and sentenced to one year and three months imprisonment. Choking sentence concurrent to sentence for first offence.

Total sentence of five years and three months.

Non-parole period of 3 years.

DPP v Jones (No 2)

[2023] ACTSC 99 (McCallum CJ)

Charges: 1x sexual intercourse without consent

1x act of indecency without consent

The offender and victim were work colleagues and matched on Hinge, a dating application. They had consensual intercourse once in June 2021. In July 2021, the victim confided in the offender about a previous sexual assault. When they got to the victim’s house she told the offender she had vaginal thrush and was in a “bit of pain” and did not wish to engage in any sexual activity that night. The victim went to bed and the offender joined her. The offender started feeling all over the victim’s body and she said nothing and lay still. The offender digitally penetrated the victim while he thought she was asleep. Offender was found guilty at trial.

Found guilty after trial

Twenty-seven-year-old young man with employment, social support, no substance issues and no criminal history. Poor attitude to offences. Had underlying chronic mental health conditions and has been suicidal.

Sexual intercourse without consent: two years and six months

Imprisonment.

Act of indecency:

One year imprisonment (six

months concurrent)

Non parole period of 15 months.

DPP v

Earle [2023]

ACTSC 93 (McCallum CJ)

Charges: 1 x act of indecency without consent

1 x sexual intercourse without consent

The offender and the victim met through a dating application. They had an intimate romantic relationship and when that ended they remained friends. The victim contacted the offender seeking prohibited drugs and invited him to her house and “stay over”. The victim went to bed and fell asleep. She woke up to the offender rubbing her clitoris with his fingers. The offender digitally penetrated the victim’s vagina. The victim alleged that further digital penetration and cunnilingus occurred, which were the acts charged as counts 2 and 3. The jury returned verdicts of not guilty for those counts. The offender then inserted his penis into the victim’s vagina with force without her consent. The victim said “wait, wait, wait” and the offender immediately stopped and asked if she was okay. The victim said he had taken her by surprise and he laughed and apologised.

No guilty plea

Offender was person of good character with strong pro-social influences. Relatively young man without any criminal history. Raised in a loving and supportive family and holds strong relationships with friends, family and colleagues. Strong prospects of rehabilitation.

Act of indecency: ICO for one year.

Sexual intercourse without consent: ICO for two years and six months.

ICOs partially cumulative.

300 hours of community service and 20 hours of counselling.

R v Finau (No 2)

[2020] ACTSC 193 (Murrell CJ)

Charges: 1 x sexual intercourse without consent

The offender and victim were work colleagues. They met in Civic and attended several night clubs. They shared a taxi to the victim’s residence with the intention that the offender would continue in the taxi to his own residence. He asked if he could come into her apartment for water and to use the toilet before ordering himself another taxi. She agreed. In her apartment, the victim changed into sleeping attire. She returned to the living room where she found the offender lying on the sofa bed in his underwear. She asked him to dress. He began to put the pants on but directed her attention to the fact he had an erection. He pulled her down to kiss her, but she resisted. The offender grabbed the victim and pinned her down to the sofa. He tried to prise her legs open while she resisted. She repeatedly said words to the effect of, “Get off me. This is not happening. Stop it” and “No, stop, I don't want to have sex. I don't want you to do this”. She resisted, pushing against his windpipe and slapping him. The accused became angry and said, “I want this, I'm here”. When she objected, he covered her mouth with his hand, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The victim hit him in the face. He struck her cheekbone and she froze. The offender engaged in penile-vaginal penetration for “less than a minute”. The offender did not use a condom.

Found guilty after trial.

The offender had no criminal history, otherwise impeccable character. Stable, loving upbringing. Positive character references. Offending considered out of character.

Two years and six months’ imprisonment.

Suspended after 9 months on entering a good behaviour order.

R v Lindsay [2020]

ACTCA 25 (Murrell CJ, Mossop J, Crowe AJ)

Charge:

1 x sexual intercourse without consent

The offender and the victim had been staying in shared accommodation at a hostel. The offender asked the victim for a kiss and to massage her shoulders. She told him to go away. He then straddled the victim while she was on her back and attempted to pull down her top and bra. She tried to push him away and made it clear that his actions were unwelcome. The respondent grabbed the victim by the throat and pushed her down into the bed. The victim was fearful and said to the respondent, “if I do this, you won’t hurt me?” to which the respondent responded that he would not. The offender engaged in penile-vaginal sexual intercourse with the victim. The Crown appealed the sentence imposed, arguing it was manifestly inadequate. The appeal was dismissed.

Guilty plea (discount of 20% applied)

The offender had a lengthy criminal record and serious mental health issues. There was a causal connection between the mental condition and the offending conduct, reducing the offender’s moral culpability and the objective seriousness of the offence.

Sentence imposed by Elkaim J, upheld by the Court of Appeal:

Two years

imprisonment.

Non-parole period of 17 months.

R v Aroub [2017]

ACTSC 187 (Murrell CJ)

Charges: 1 x act of indecency

1 x sexual intercourse without consent

A jury found the offender guilty of offence of sexual intercourse without consent. The victim accompanied a friend to Civic. During the evening, the friends consumed alcohol at several nightclubs. They met the offender. In the early hours of the morning the victim, her friend, the offender and others went to the offender’s home. Eventually, the victim went to a spare room where she lay down and fell asleep. The victim awoke to find the offender digitally penetrating her. He had unzipped her dress and was kissing her back between the shoulder blades. The victim pushed the offender’s hand away. He smiled and told her to “relax”. She told the offender that she needed to go to the bathroom. She attempted to do so but was unable to open the door as it had no handle. The offender assisted her to open the door and she left the room. The victim found her friend and told her what had occurred. The offender was found guilty by a jury.

Found guilty after trial

At the time of the offence, the offender was 25 years old. He had experienced a traumatic upbringing and suffered from depression. He had a criminal history for less serious matters and no prior history of committing sexual offences.

He had been on conditional liberty at the time of the offence.

Act of indecency: Convicted and sentenced to two months imprisonment.

R v Agresti [2016]

ACTSC 9 (Murrell CJ); Agresti v The Queen [2017] ACTCA 20; 13 ACTLR 1

Charges:

1 x sexual intercourse without consent

The victim and offender were ADFA cadets. They went out with other cadets to Civic. The victim consumed a significant quantity of alcohol and became very intoxicated. Later in the evening, the offender and the victim met up, and took a taxi back to ADFA. On reaching her room, the victim lay on her bed. The victim was passing in and out of consciousness. At one stage she awoke to find the offender engaging in penile-vaginal sexual intercourse. The offender left the victim's room. Offender gave evidence at trial said that, at the time, he believed the sexual intercourse was consensual. The offender appealed his convictions. The appeal was upheld on the following grounds: the direction to the jury on whether the complainant's consent was caused by alcohol was erroneous; the direction on consent and unconsciousness was inadequate; and the direction on the paths to criminal liability based on unconsciousness and consent. The conviction and sentence of the offender were set aside. A new trial was ordered. At the further trial, the jury was hung.

Found guilty after trial

The offender was 18 years at the time of the offence and was raised in a supportive family.

2 years, 4 months’ imprisonment, 18 months of which suspended on entering a good behaviour order.

[2025] ACTSC 303

16 July 2025