Director of Public Prosecutions v Umunakwe (No 2)

[2025] ACTSC 139

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Umunakwe (No 2)
Citation:	[2025] ACTSC 139
Hearing Date:	5 February 2025
Decision Date:	10 April 2025
Before:	Baker J
Decision:	See [98]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – offender found guilty at jury trial – finding that offender had knowledge of victim’s non- consent – offending committed in breach of conditional liberty – relevance of risk of deportation – limited remorse – need for punishment and denunciation – harm to victim recognised –
term of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT), ss 51, 52, 53, 54(1), 54(3), 55, 55A Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(o), 33(1)(w) 33(1)(za)
Migration Act 1958 (Cth), s 501(3A)(a)(i), 501(7), s 501CA
Cases Cited:	Abdullahi v R [2024] VSCA 156 Afful v The Queen [2021] NSWCCA 111 Cheung v R [2001] HCA 67; 209 CLR 1
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41; 262 CLR 428
DPP v Aghahosseini [2024] ACTSC 237
DPP v Earle [2023] ACTSC 93
DPP v Ierfone [2025] ACTSC 60
DPP v Jones (No 2) [2023] ACTSC 99
DPP v Mack [2024] ACTSC 227 DPP v Rue [2023] ACTSC 270 DPP v Umunakwe [2024] ACTSC 229 DPP v Williams [2024] ACTSC 283 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Guden v The Queen [2010] VSCA 196; 28 VR 288 Hawke v Umunakwe [2021] ACTMC 13 Hickling v The State of Western Australia [2016] WASCA 124; 260 A Crim R 33 Hili v R [2010] HCA 45; 242 CLR 520 Islam v R [2006] ACTCA 21 Konamala v The Queen [2016] VSCA 48 MAC v Tasmania [2018] TASCCA 19 Magedi v The Queen [2019] VSCA 102 MT v R [2021] ACTCA 26; 17 ACTLR 22 Okwechime v The Queen [2023] ACTCA 233 R v Aniezue [2016] ACTSC 82 R v Aroub [2017] ACTSC 187
R v Butters [2019] ACTSC 143
R v Calica [2021] NTSCFC 2; 43 NTLR 7 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Finau (No 2) [2020] ACTSC 193 R v Hartikainen (unreported, 8 June 1993, NSWCCA) R v Kroni [2021] SASCFC 15; 138 SASR 37 R v Lindsay [2020] ACTCA 25 R v MAO; Ex Parte Attorney-General (Qld) [2006] QCA 99; 163 A Crim R 63 R v Norris [2018] QCA 27; 3 Qd R 420 R v Palmer [2017] ACTSC 357 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v SEB [2023] QCA 69 R v Storey [1998] 1 VR 359 R v Verdins [2007] VSCA 102; 16 VR 269 R v Ruwhiu [2023] ACTCA 18 The King v Ryan Churchill (a pseudonym) [2025] HCA 1
Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288
Parties:	Director of Public Prosecutions (Crown)
Emmanuel Umunakwe (Offender)
Representation:	Counsel
C Muthurajah (Crown)
R Rodger (Offender)
Solicitors
ACT Director of Public Prosecutions
Kamy Saeedi Law (Offender)
File Number:	SCC 187 of 2023
BAKER J:

EDITED EX TEMPORE JUDGMENT

Introduction

1․	The offender, Emmanuel Umunakwe, was tried before a jury of twelve from 15 July 2024
until 22 July 2024 for three counts of sexual intercourse without consent, contrary to
s 54(1) of the Crimes Act 1900 (ACT) (count 1 CC2023/1092; count 2 C2023/2900; and
count 3 SCCAN2023/370).
2․	On 22 July 2024, the jury returned a verdict of guilty for count 2, and not guilty for counts
1 and 3. The offender now comes before the Court to be sentenced for count 2.
3․	The maximum penalty for sexual intercourse without consent is 12 years’ imprisonment.

Background

Findings of Fact

4․	As the offender was found guilty by a jury, it is necessary for me to find the facts upon
which he will be sentenced. These facts must be consistent with each of the jury’s
verdicts: Cheung v R [2001] HCA 67; 209 CLR 1 at [14]. There is no requirement that I
take the most lenient nor favourable view of the facts: Filippou v The Queen [2015] HCA
29; 256 CLR 47 at [64] – [70] (French CJ, Bell, Gageler, Keane and Nettle JJ). I must be
satisfied beyond reasonable doubt of any aggravating matter. I must be satisfied on the
balance of probabilities of any mitigating matter: R v Olbrich [1999] HCA 54; 199 CLR
270.
5․	In a case such as the present, where the jury found the offender guilty of one count, and
not guilty of two other counts, I must be careful to sentence consistently with the jury’s
verdicts: R v Storey [1998] 1 VR 359 at 366. To this end, I will firstly address the factual
findings that were not the subject of dispute, before turning to the disputed factual
findings.

Undisputed Facts

6․	On the evening of 27 January 2023, the victim went to several nightclubs in Civic with
two friends. The victim consumed a number drinks, including Smirnoff double black
premixes, with her friends both before leaving for Civic and whilst she was at Civic.
7․	On that evening, the offender was also out in Civic with several friends.
8․	At approximately 10:30pm, the victim went into the Mooseheads nightclub. CCTV
footage taken from Mooseheads records that the victim and the offender danced together
and kissed several times over the course of the evening.
9․	At 1:22am on 28 January 2023, the victim and her friend left the Mooseheads nightclub
and entered the One22 nightclub. The offender was already at that nightclub when the
victim arrived.
10․	Whilst at the One22 nightclub, the offender and the victim went to the male bathroom
together. The offender and the victim walked into the disabled stall together.
11․	There was no dispute that the offender and the victim had sexual intercourse whilst they
were in the stall. However, precisely the nature of that sexual intercourse was the subject
of dispute at trial, and in the sentence proceedings. I will address this disputed aspect of
the findings of fact below.
12․	After leaving the stall, the victim ran from the nightclub and into the laneway near the
Mooseheads nightclub. CCTV footage of the laneway taken at approximately 1:55am on
28 January 2023 shows the victim distraught and sobbing. The contrast been her
carefree appearance in earlier CCTV footage, and her appearance at this time was
pronounced. Various other witnesses, including friends of the victim and the General
Manager of Mooseheads, also gave evidence of the victim’s acute distress at this time.
When asked what had happened, the victim replied “he took me to the bathroom and I
kept saying no”.
13․	Police attended within a short period. The victim told police that she had been at the
One22 nightclub, where she had met a guy, but that he had taken it “too far”. The victim
described the offender to police. Police were able to identify the offender from the victim’s
description. They approached the offender at approximately 2:21am.
14․	An ambulance attended at 2:39am and took the victim and her friend to the Canberra
Hospital, where swabs were taken from the victim. The offender’s DNA was found on a
number of those swabs.

Disputed Facts: What occurred in the toilet stall

15․	The disputed facts concerned what occurred after the victim and the offender entered
the disabled stall of the male bathroom at the One22 nightclub.
16․	The victim gave evidence that there was another male in the disabled stall. She said that
the offender told the male to get out, which the male did. The victim gave evidence that
once they were in the stall, the offender locked the door. The offender then placed his
hands on the victim’s shoulders and told her to “give him head”. She refused. The victim
gave evidence that the offender then told her to get up against the wall, before thrusting
his penis into the victim’s vagina. This conduct was alleged by the prosecution to
constitute count 1 on the indictment (sexual intercourse without consent). The
prosecution case was that the victim did not consent to this act, and the offender did not
do or say anything prior to this act to ascertain whether the victim was consenting. The
jury did not accept the prosecution case and found the offender not guilty of this count.
17․	The victim gave evidence that the offender then turned her to face him and again asked
that she perform oral sex upon him, placing his hand on her shoulder and pushing her
down. The victim refused, saying “I’m not doing that”. The victim gave evidence that the
offender then turned the victim back around and again inserted his penis into her vagina.
The victim gave evidence that she did not consent to this intercourse, that she told the
offender that it was hurting and to stop. She gave evidence that she tried to get away
and began crying. The conduct of the offender, in penetrating the victim without her
consent, constitutes count 2 on the indictment (sexual intercourse without consent). The
jury found the offender guilty of this count.
18․	The victim gave evidence that during the second instance of sexual intercourse, the
offender inserted his penis into her anus without her consent. However, the victim was
unsure about whether penetration actually occurred. She said “I think he may have put
it in my arse at one point”, that this was “way more painful” and “a very different change”.
This conduct was alleged to constitute count 3 on the indictment. The jury found the
offender not guilty of this charge.
19․	The victim gave evidence that she then used the toilet seat to push away, and that sexual
intercourse ended at that point. The victim said that as she left, the offender appeared
confused, and said “Where are you going? What’s happened?”
20․	The offender did not give evidence in the trial.
21․	As outlined above, the jury returned a verdict of guilty for count 2, and not guilty for counts
1 and 3.
22․	With respect to count 3, the victim herself acknowledged in cross-examination that the
pain she experienced may have been caused by the appellant’s penis touching her
perianal area. A readily apparent explanation for the jury’s verdict of not guilty with
respect to count 3 was that the jury may have had a doubt as to whether anal penetration
in fact occurred: see further DPP v Umunakwe [2024] ACTSC 229. Such a verdict says
nothing about the credibility or the reliability of the victim’s evidence.
23․	The difference in verdicts between counts 1 and 2 are also readily explained. As outlined
above, at the time of count 1, the victim had followed the offender into the disabled toilet
stall. The offender asked her for oral sex, which she refused. The victim’s evidence was
that she did not say anything further to him at that stage. The jury heard that the toilet
stall was not well lit and the victim was facing away from the offender. The jury may have
been prepared to give the offender the benefit of a reasonable doubt as to whether the
offender knew that the victim was not consenting or was reckless as to whether the victim
was not consenting at the time of this intercourse. The jury may also have been prepared
to give the offender the benefit of a reasonable doubt, by finding that the accused’s
actions (the earlier kissing, entering into the toilet stall, asking the victim for oral sex, and
then asking the victim to turn around) amounted to a reasonable attempt to ascertain her
consent.
24․	In contrast to count 1, the victim’s evidence was that, during the course of count 2, she
repeatedly told the accused to stop, she tried to get away and she was crying. In these
circumstances, the jury may well have been satisfied that although the offender had an
honest belief as to consent during count 1, he could not have had an honest belief as to
her consent after she made her lack of consent apparent during the acts constituting
count 2.
25․	In the proceedings on sentence, there was a dispute between the prosecution and the
offender as to whether the victim consented to the sexual intercourse which was the
subject of count 1. I do not consider that I need to, or should, resolve this dispute. The
offender is not to be sentenced for the conduct relating to count 1, for which he was
found not guilty.
26․	Counsel for the offender submitted that I would find that the offender had an honest, but
unreasonable belief as to consent in respect of count 2. I do not agree. By their verdicts,
the jury must have been satisfied beyond reasonable doubt that the victim was a credible
and reliable witness in respect of the conduct which was the subject of count 2.
27․	Like the jury, I was satisfied beyond reasonable doubt that the victim’s evidence in
respect of count 2 was both honest and reliable. The victim’s evidence as to what
occurred was supported by the evidence of her immediate complaint (in which she stated
that she had been “raped” and that she “kept saying no”) and her extreme distress: see
The King v Ryan Churchill (a pseudonym) [2025] HCA 1 at [25] and [27].
28․	In so finding, I have borne in mind that aspects of the victim’s account of events that
occurred earlier in the evening were inconsistent with CCTV footage that police obtained
from the Mooseheads nightclub. For example, the victim recalled that her first interaction with the offender occurred at the bar at Mooseheads, where he kissed her with little
warning. In fact, the CCTV footage reveals that after meeting at the bar at Mooseheads,
the offender gave his phone to the victim, who returned it shortly after. They briefly kissed
and continued to converse with their respective groups of friends. Further, the victim
gave evidence that she did not interact with the offender between the kiss at
Mooseheads bar, and just prior to entering the bathroom with him at One22. However,
the CCTV footage shows that the victim and offender danced together and kissed several
times over the course of the evening.
29․	The victim was never shown the CCTV footage during the trial, and never had an
opportunity to comment on those discrepancies. The events that occurred in the toilet
stall were traumatic. The victim was immediately asked to explain what had happened in
the stall, whereas she was not asked to recall what had happened earlier in the evening
until her evidence in chief interview on 9 February 2023. It is understandable that her
memory of the events in the toilet stall would have been more accurate than her memory
of events occurring earlier in the evening.
30․	As noted above, the victim gave evidence that during the commission of count 2, she
told the offender to stop, saying words to the effect of “its hurting. Stop. This is not – just
get off”. She said that she said this a few times, and that she tried to move away. The
victim said that she was crying. The offender did not stop but instead “picked up the
pace”. The victim agreed that it was dark and that music was playing in the nightclub.
However, she said that “I believe I would have very clearly been heard and seen”. Given
the account that was provided by the victim: that she was asking him to stop, crying, and
was attempting to get away, the respondent must have been aware that she was not
consenting.
31․	Once the victim’s account is accepted as credible and reliable, it must follow that the
offender knew that the victim was not consenting to intercourse from the moment that
the victim told him to stop. Indeed, the only basis upon which counts 1 and 2 can be
distinguished is that the victim made her lack of consent apparent to the offender in
respect of the act that was the subject of count 2.
32․	In these circumstances, I am satisfied beyond reasonable doubt that the victim did not
consent to the sexual intercourse which was the subject of count 2, and that the offender
knew that the victim did not consent.
33․	In so finding, I have not overlooked the victim’s evidence that the offender appeared to
be confused when she went to leave the toilet stall. In my view, the proper explanation
for the offender’s confusion was that he was surprised by the victim’s sudden resistance,
and the strength of her adverse response to the non-consensual sexual intercourse.

Subjective Circumstances

Personal background

34․	The offender’s subjective circumstances are set out in a Pre-Sentence Report (PSR)
dated 29 January 2025, an Intensive Correction Order Assessment Report (ICOAR)
dated 29 January 2025 and a psychologist report of Dr Jenna Bollinger (Knightlamp
Psychology) dated 10 December 2024.
35․	In 2010, when the offender was 9 years old, he moved to Australia from Nigeria with his
family for his father’s employment at the Nigerian Embassy in Canberra. The offender
reported that Nigeria was an unsafe place to live. He said that children would often be
taken from their families for ransom, the police were corrupt and armed robberies were
common.
36․	The offender reported that his life in Australia was “a lot better”, and that he had made
friends. However, the offender also reported experiencing racism from students and
teachers.
37․	The offender’s parents divorced in 2020. The offender reported that he had witnessed
some yelling, arguing and physical violence. This escalated during his High School
years. The offender reported that his parents would direct their anger and aggression
towards him, and would “go off at [him] for the smallest thing” such as leaving a light on.
When the offender’s parents decided to separate, they told him he was required to
choose which of his parents to live with. The offender instead moved in with a friend,
where he was not required to pay rent.
38․	The offender reported having minimal contact with his father, and some contact with his
mother since that time. The offender said that his relationship with both was improving.
39․	The offender completed his Year 12 Certificate and then pursued full-time employment.
He has since worked in various roles, including as a labourer, car detailer, yard hand,
casual tyre fitter and most recently with a local beverage sales company in the deliveries
section.
40․	The offender is currently living with his father, and proposed to reside with his father if a
non-custodial sentence is imposed. A Home Visit Assessment, which was completed for
the purposes of the PSR, revealed that whilst the offender’s father’s apartment was
cluttered, the offender’s room was clean and tidy.
41․	The offender reported being “scared off relationships” since this incident and said that
he struggled to socialise due to his bail conditions.

Substance Use

42․	The offender began using alcohol during his early teenage years, and at 16, was
hospitalised due to excessive use. Service records accessed by the PSR author revealed
that the offender had previously acknowledged an abnormal increase in his use following
his parents’ divorce. The offender reported that his last use of alcohol was over
12 months ago.
43․	The offender reported a problematic history of illicit substance use. He began using
cannabis in his teenage years, which progressed to weekly use of around $30 a week of
cannabis. During his PSR interview, the offender claimed he had stopped his weekly
consumption of cannabis over three months previously, but this was contradicted by his
urinalysis test dated 21 January 2025. The offender reported that he had recently begun
using cannabis more frequently to help him sleep.

44․ The offender also reported experimental use of Methylenedioxymethamphetamine

(MDMA) during his Year 11 and 12 years of school. He claimed that he had only

consumed MDMA approximately six times with consumption of 0.2 grams per session,

with his last reported consumption being over a year ago. The offender also reported

using cocaine sporadically in social settings from 18 years of age until a few months ago.

45․	The offender reported he had engaged in Alcohol and Other Drugs related programs.
The offender’s responses to the Drug Use Questionnaire, administered by Dr Bollinger,
indicate that he currently has a low level of problematic drug use. Dr Bollinger considered
that this would be best served by psychoeducation.

46․ The offender also provided two letters from ACT Directions, which outlined his

participation in SMART Recovery sessions to deal with his ongoing substance use. The

letters noted the offender engaged in further counselling on 31 January 2025, and had

an additional counselling appointment on 7 February 2025.

Mental and physical health

47․	The PSR author reported that the offender expressed a desire to engage with a mental
health professional for anxiety and depression-related concerns.
48․	When speaking to Dr Bollinger on 6 August 2021, the offender reported that when his
parents separated, he experienced a “dark” time and had some thoughts of suicide, but
thought it would be “traumatising” to be diagnosed.
49․	When Dr Bollinger examined the offender again on 9 December 2024, the offender
informed him that he had moved away from where his previous psychologist
(Mr O’Donohue) worked, but that had recently obtained a mental health care plan and
had an appointment to see a psychologist at Insight Psychology.
50․	The offender reported that he had been hospitalised with heart issues as a result of
stress. He said that other manifestations of his anxiety and stress included psoriasis and
hair loss. The offender also reported to Dr Bollinger that he was concerned about being
deported to Nigeria, and that he had anxiety about going out in public, feeling “worthless”
and having suicidal thoughts.
51․	Dr Bollinger expressed the opinion that the offender met the DSM-V criteria for post-
traumatic stress disorder (PTSD) and social anxiety disorder. The offender’s responses
to the Depression, Anxiety, and Stress Scale indicated moderate levels of depression,
severe levels of anxiety and normal levels of stress. Dr Bollinger did not consider that
the offender’s ability to exercise appropriate judgment was impaired at the time of the
offending (other than by the consumption of alcohol) and did not consider that there was
any link between the offender’s mental health and the commission of the offence.
Dr Bollinger assessed the offender’s risk of re-offending as low.

Criminal History

52․	The offender’s criminal history includes offences committed on 27 September 2020,
when the offender was 19 years of age. The offender was contacted by a friend to attend
a planned fight “in case things just went south”. The subsequent fight involved 10 young
people, many of whom were underage, and tragically resulted in the death of an 18-year-
old man. The offender was not involved in the fight from the beginning, but later used a
rake to smash a car. In September 2021, the offender was convicted and sentenced for
the following offences by the Chief Magistrate:

(a) Joint commission common assault (sentenced to a good behaviour order of

12 months with supervision);

(b) Joint commission damage property (sentenced to a good behaviour order of

18 months with supervision);

(c) Affray with five or more people present (sentenced to a good behaviour of

12 months with supervision).

53․	The good behaviour orders were each ordered concurrently. The offending was subject
to the good behaviour order for the offence of joint commission damage property at the
time of the present offending.
54․	The PSR states that the offender has been known to ACT Corrective Services since
4 December 2020, through the supervision of a bail order. He breached this order on 30
June 2021 when he returned a positive result for cannabis after a urinalysis test.

Pre-Sentence Report and Intensive Correction Order Assessment Report

55․	The PSR author noted that the offender has stable accommodation, family support,
financial circumstances and employment. His risk of sexual reoffending was assessed
as above average. The offender found to be not suitable for an Intensive Correction
Order (ICO) due to his degree of dependence on a controlled drug.

Victim Impact statement

56․	In her victim impact statement, the victim described the far-reaching effect that the
offender’s actions have had upon her life. She explained that she has become paranoid
and anxious when leaving the house. She experiences sleepless nights and has
flashbacks. The victim’s fear of the memory of the moment of the offence is
“overwhelming and inescapable”. She described how “simple things in [her] everyday life
are now a challenge for [her]”.
57․	The victim described how she now feels alone, isolated, and ashamed. She finds it hard
to open up and trust her emotions. She explained that she is “no longer the same
person”, and feels “as if [her] identity had been taken away”. She is no longer able to
enjoy things she once loved and enjoyed. The victim described how the trauma that she
suffers has impacted upon her relationships with friends and family, as struggles to trust
or to open up and share her emotions.

Sentencing Considerations

Objective seriousness of the offence

58․	In R v Palmer [2017] ACTSC 357 at [22], Mossop J identified a number of factors which
were said to be relevant to the assessment of the objective seriousness of an offence of
sexual intercourse without consent. These matters included whether the offence was
premeditated; whether the offender acted alone or in company; how long the attack
lasted; whether the victim was raped more than once; whether the offender used violence
or threats of violence; whether a weapon was used; whether the victim was injured,
humiliated or degraded; whether the offender used a condom; whether the victim was
particularly vulnerable and whether the offender ignored warnings or protests by the
victim.
59․	Considerable care needs to be taken with respect to a number of the matters enumerated
in Palmer. Where present, some of those matters would give rise to liability for offences which carry higher maximum penalties than the present offence: see, for example s 54(3)
of the Crimes Act (where the offence is committed in company); ss 55 and 55A of the
Crimes Act (where the offence is committed against a young person or a person under
special care); and ss 51 to 53 of the Crimes Act (where physical violence or threats of
physical violence accompany an act of sexual intercourse without consent). As the
principle in R v De Simoni [1981] HCA 31; 147 CLR 383 would preclude the Court taking
these matters into account as a matter of aggravation when sentencing for an offence
contrary to s 54(1), it follows that offending is not less serious because of an absence of
these matters.
60․	Accordingly, I do not consider that the objective seriousness of the present offending is
any less because it did not involve a particularly vulnerable victim; or because the
offender was not in company. I also do not consider the offender’s conduct to be less
serious because it did not involve physical violence or threats of violence.
61․	Nonetheless, as McCallum CJ observed in DPP v Earle [2023] ACTSC 93, the range of
possible offending under s 54 remains broad. It encompasses both predatory and
humiliating acts of forced penetration and “fleeting, impulsive acts undertaken without
regard to whether there is consent from the victim”: Earle at [23]. Following the
amendments to s 54 of the Crimes Act, the offence now also encompasses acts of sexual
intercourse where the offender has an honest, but objectively unreasonable, belief that
there was consent to sexual intercourse.
62․	I accept that the present offending was impulsive and fleeting; it was not planned.
However, as McCallum CJ emphasised in Earle at [22], the resulting trauma of such
offences is “often intense and enduring”.
63․	In the present case, the offender did not know the victim prior to the night of the offending.
The sexual intercourse occurred less than two hours after the offender first met the
victim.
64․	By their verdicts, the jury has demonstrated that they were satisfied beyond reasonable
doubt that the victim did not consent to sexual intercourse in the bathroom. For the
reasons outlined above, I am satisfied that the offender knew that the victim did not
consent. If, contrary to the above, I am wrong in my conclusion that the offender knew
that the victim was not consenting, in circumstances where the victim was saying no,
crying and was trying to get away, the level of recklessness would be so high as to be
indistinguishable from knowledge of lack of consent.
65․	The duration of the offending was not long. I have concluded that the offence was
committed only from the time that the victim said no, started crying and tried to get away. However, as the present case demonstrates, significant harm can be occasioned from
offending which is short in duration.
66․	Like McCallum CJ in Earle, “I do not consider it necessary to pinpoint the seriousness of
the offence on a notional line”: Earle at [27]. It suffices for me to record my finding that
the present case is a serious instance of sexual intercourse without consent.

Remorse – s 33(1)(w) of the Crimes (Sentencing) Act 2005

67․	In the PSR and ICOAR, the offender declined to comment on the offending, explaining
that he was pursuing an appeal against his conviction.
68․	However, the offender reported to Dr Bollinger that he “got walked into a bathroom” after
the victim had put her number into his phone. The offender told Dr Bollinger that he
requested that she “give me head. She said no, I didn’t force her”. The offender
acknowledged that they had sexual intercourse, but he reported a belief that it was
consensual. He said that “She never told me to stop, she never said to stop. If I’d been
told to stop I would have instantly stopped”. He said “I thought there was consent”.
69․	The offender said that he does not “want to take away from [the victim’s] experience”.
He reported feeling “like a terrible human being”. He said that this “destroys me”. He
stated he that he has been “trying hard to get my life back on track” and he feels that
“I’ve failed everyone”.
70․	This limited expression of remorse is far from a proper recognition of the offender’s
conduct or the harm which the offender caused the victim. I have not found that it is such
as to justify any significant mitigation of the sentence to be imposed.

Risk of deportation

71․	The offender’s father wrote a letter to the Court in which he described the family’s
relocation from Nigeria to Australia. The offender’s father informed the Court that the
family travelled to Australia on a diplomatic assignment, but did not return after the
offender’s father was declared a person of interest by the Nigerian Government. The
offender’s father explained that “Pro Biafrans”, as he has been labelled, are considered
enemies of Federal Republic of Nigeria and are often killed. The offender’s father
attached several news articles to his letter as evidence of this risk.
72․	The offender’s father informed the Court that the offender’s mother has become an
Australian citizen. The offender and his father were eligible, however they have not been
able to secure the necessary documents without assistance from people in Nigeria who
are too afraid to assist.
73․	The offender’s father explained the offender is at risk of being deported. The offender’s
father explained the offender does not have any family or friends in Nigeria and does not
speak the language. He described the effect of deportation as a “death sentence”, as a
result of the risk of persecution from the government which the offender faces.
74․	Various Australian jurisdictions have taken different approaches to evidence of this
nature: R v Ruwhiu [2023] ACTCA 18 at [80] – [81], per Loukas-Karlsson J, citing R v
Calica [2021] NTSCFC 2; 43 NTLR 7 at [15] – [18]. In Victoria. it has been held that:

… the prospect of deportation is a factor which may bear on the impact which a sentence of

imprisonment will have on the offender, both during the currency of the incarceration and

upon his/ her release.

See Guden v The Queen [2010] VSCA 196; 28 VR 288 at [25]. See also Abdullahi v R [2024]

VSCA 156 at [70].

75․	A similar approach is taken in Queensland, South Australia, the Northern Territory and
Tasmania: see R v Norris [2018] QCA 27; 3 Qd R 420; R v SEB [2023] QCA 69 at [10];
R v Kroni [2021] SASCFC 15; 138 SASR 37 at [217]; Calica at [156] and MAC v
Tasmania [2018] TASCCA 19 at [196].
76․	In contrast, in New South Wales and Western Australia, it has been held that a risk of
deportation is not a mitigating factor on sentence, because the decision to deport is an
executive decision: Afful v The Queen [2021] NSWCCA 111 at [51]; Hickling v The State
of Western Australia [2016] WASCA 124; 260 A Crim R 33 at [57].
77․	In the Australian Capital Territory, it has been accepted that:
(i) A risk of deportation may affect the impact of a sentence of imprisonment, where

the prospect of deportation will make a period of incarceration more burdensome

for the offender: R v Aniezue [2016] ACTSC 82 at [67]; Ruwhiu at [83];

(ii)         A risk of deportation may also be relevant in considering hardship to third parties

(such as family members) under s 33(1)(o) of the Crimes (Sentencing) Act 2005

(ACT): Ruwhiu at [85];

(iii)        There must be sufficient evidence of the risk of deportation and the impact of that

risk for deportation to be taken into account on sentence: R v Butters [2019]

ACTSC 143 at [96] – [97] and Aniezue at [65]; and

(iv)        A court must not craft a sentence that is designed to circumvent migration laws:

Butters at [95], [103]; Islam v R [2006] ACTCA 21 at [35].

78․	In the present case, the prosecutor did not challenge the above principles. Rather, she
contended that there was insufficient evidence to demonstrate that there was a risk of
deportation.
79․	The evidence from the offender’s father that the offender is at risk of deportation accords
with Commonwealth law: s 501(3A)(a)(i) of the Migration Act 1958 (Cth) provides that
the Minister for Home Affairs must cancel a visa of a person who fails the character test
because he or she has a “substantial criminal record”. A “substantial criminal record” is
defined to include a “term of imprisonment of 12 months or more”: s 501(7) of the
Migration Act. See similarly Ruwhiu at [90] and the authorities cited therein. However, it
is not certain that the offender will be deported. The Minister has a discretion to revoke
the mandatory decision to cancel the offender’s visa: s 501CA of the Migration Act,
discussed in Konamala v The Queen [2016] VSCA 48 at [31] – [32].
80․	Nonetheless, whilst there must be sufficient evidence of the risk of deportation, it is not
the case that deportation must be certain before it may be taken into account. In Magedi
v The Queen [2019] VSCA 102 at [56] – [58], the Victorian Court of Appeal, after noting
the mandatory cancellation provision, and the “uncertainty as to whether that discretion
would be exercised”, continued (at [58]):

… The applicant’s visa has been cancelled, and he has foreshadowed an application for

revocation. We proceed on the assumption, therefore, that uncertainty about whether the

cancellation will be revoked is a matter weighing heavily on his mind. (emphasis added)

81․	This statement accords with authority in this Court as to the proper approach to be taken
when assessing an offender’s risk of deportation: see, for example, Aniezue at [65] and
Butters at [96].
82․	Importantly, as the authorities in all jurisdictions make clear, a court must not craft a
sentence so as to avoid the effects of the Migration Act. An otherwise appropriate
sentence must not be reduced to avoid a risk of deportation: R v MAO; Ex Parte Attorney-
General (Qld) [2006] QCA 99; 163 A Crim R 63 at [18]. Rather, when taking into account
the risk of deportation, the court simply recognises that any term of imprisonment may
be more burdensome on a person who faces the prospect of removal from the country
upon their release. The risk of deportation must not reduce the weight to be given to the
purposes of denunciation and/or recognition of the harm caused to the victim.
83․	I accept that the offender is at risk of deportation. In view of the unchallenged evidence
that the offender will face persecution in Nigeria if he is deported, that the offender has
no supports in Nigeria, and that the offender does not speak Nigerian, I am satisfied that
the prospect of the offender’s deportation will weigh heavily on the offender and his family
during any period of imprisonment imposed.

Prospects of rehabilitation

84․	The offender is young. He was 21 years old at the time of the offending, and is now 23
years old. The offender’s youth heightens the purpose of rehabilitation: MT v R [2021]
ACTCA 26; 17 ACTLR 22.
85․	The offender also has supportive parents. However, the fact that the offender committed
the present offending in breach of a good behaviour order is a matter of concern. When
the offender was sentenced by the Chief Magistrate for the offences outlined at [51]
above, her Honour commented that the offender’s motivation to avoid future re-offending
“may be reduced further by a strong motivation to avoid the risk of deportation”: Hawke
v Umunakwe [2021] ACTMC 13 at [195]. The offender committed the present offence
whilst subject to a good behaviour order, and having had the risk of deportation made
explicit to him. The offender’s lack of remorse also weighs against a positive finding as
to his prospects of reoffending.
86․	In these circumstances, I do not find that the offender’s prospects of rehabilitation are
good. However, in view of the offender’s family support and his youth, I have also not
considered his prospects to be poor.

Comparative cases

87․	Annexed to this judgment is a table of sentences imposed in this jurisdiction for offences
of sexual intercourse without consent.
88․	I have carefully considered the sentences imposed in these decisions, as required by
s 33(1)(za) of the Sentencing Act. Important matters which distinguish the present case
from many of the comparative cases is the fact that the offender knew that the victim did
not consent, the fact that the offender lacks any significant remorse and the fact that the
offender was on conditional liberty at the time of the offending.
89․	In considering the sentences imposed in the comparative cases, I have also borne in
mind that these cases illustrate, but do not define, the possible range of sentences
available, and that sentencing practice cannot cap the upper nor lower ranges of a
sentence: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; Director of Public
Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51] – [53]. The
function of comparative cases is not to pursue strict mathematical equivalence as
between sentencing outcomes for the same offence, but rather to ensure consistency in
the application of relevant principles: Hili v R [2010] HCA 45; 242 CLR 520 at [48] – [49].

Determination

90․	The seriousness of sexual assault offences has been emphasised in numerous decisions
of intermediate appellate courts. Over two decades ago, Gleeson CJ (with whom
Meagher JA and Newman J agreed) said:

… non- consensual intercourse is itself an extreme form of violence, and one which the

community expects the courts to take seriously.

See R v Hartikainen (unreported, 8 June 1993, NSWCCA).

91․	Sexual violence invades a person’s bodily integrity and autonomy. The Court must
recognise the deep and lasting trauma that is wrought by offending of this nature, the
tendrils of which have, in the present case, reached into every facet of the victim’s life.
92․	As the Court of Appeal held in Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288,
the serious nature of sexual intercourse without consent “demands that the sentencing
purposes of deterrence, denunciation and recognition of harm to the complainant be
given prominence”: Wyper at [114]. As outlined above, I am satisfied that the offender
knew that the victim did not consent to this act of sexual intercourse. In such a case, the
weight to be given to these purposes of sentencing are particularly pronounced.
93․	The offender is young. He was 21 years old at the time of the offending. He is now 23
years old. He was subject to a good behaviour order at the time of the offending. He has
shown limited remorse for his offending. Whilst facilitating the offender’s rehabilitation is
important because of his youth, his subjective case is not such as to outweigh the
significant need for punishment, denunciation and the recognition of the harm that has
been occasioned.
94․	It was not submitted that the offender’s background was such as to raise any Bugmy
considerations; nor was it submitted that the offender’s moral culpability was reduced by
reason of his mental health. I accept that the offender’s mental health will render his
experience of custody more onerous: R v Verdins [2007] VSCA 102; 16 VR 269 at [29 –
[30], [32]. I will also take the offender’s risk of deportation into account in the manner
discussed at [70] – [82] above. In particular, I accept that the prospect of deportation will
weigh heavily on the offender, in view of his mental health conditions. I also accept that
the prospect of deportation will weigh heavily on the offender’s family.
95․	As outlined above, the comparative cases indicate that the range of sentences imposed
for offending of this nature range from alternatives to full time imprisonment to
imprisonment for four years. The offender’s counsel invited me to impose an alternative
to full time imprisonment, such as an Intensive Correction Order (ICO) or a suspended
sentence. The offender has not been assessed as eligible for an ICO, but nothing turns on this. No sentence other than a term of full-time imprisonment would be adequate to
meet the need for denunciation, punishment, deterrence and recognition of the harm that
the offender’s conduct caused the victim.
96․	As noted above, the present offence was committed some sixteen months after the
imposition of a good behaviour order, and two months before the good behaviour order
concluded. It appears from the PSR that the supervision component of the good
behaviour order was cancelled early due to satisfactory compliance. Otherwise, there is
no suggestion of non-compliance with the good behaviour order. I have taken into
account the breach of the good behaviour order in assessing the appropriate sentence
to be imposed for the index offence. In these circumstances, I will take no action on the
breach.
97․	The offender has spent 1 day in custody in relation to this offence. Accordingly, I will
backdate the sentence imposed by 1 day to account for this pre-sentence custody.

Orders

98․ For the above reasons, the following orders are made:

(1)	The offender is convicted of sexual intercourse without consent (CC2023/2900)
and sentenced to a period of imprisonment of three years, to commence 9 April
2025 and to expire on 8 April 2028.
(2)	A non-parole period for two years will be imposed. This non-parole period will
commence on 9 April 2025 and will expire on 8 April 2027.
(3)	The breach of the Good Behaviour Order imposed for the conviction of joint
commission damage to property (CC2020/14077) is proved, with no further
action to be taken on the breach.

I certify that the preceding ninety eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate: A McKay

Date: 11 April 2025

ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances	Subjective	Sentence
Circumstances	imposed

DPP v	Charges:	Found guilty	Sexual intercourse
Ierfone	1x act of indecency without consent	after trial	without consent:
[2025]	1x sexual intercourse without consent	Convicted and
ACTSC 60	The offender and victim were colleagues.	Offender was	sentenced to two
(Taylor J)	They attended a Christmas party together	29 years of age	years of
in December 2022. The offender touched	at time of	imprisonment.
the victim’s breasts which was captured on	sentence and	Act of indecency
CCTV. The victim offered to drive the	reported stable	without consent:
offender home in her vehicle. The offender	upbringing and	Convicted and
asked to go home with the victim and she	employment	sentenced to 10
declined. The offender digitally penetrated	history.	months
the victim’s vagina over her stockings in her	Offender	imprisonment.
car.	showed little	Sentences partially
remorse.	cumulative. Total
term of
imprisonment for
two years and four
months.
Sentence to be
suspended after
offender spent four
months in custody.
DPP v	Charges:	Guilty plea	Two years
Williams	1 x sexual intercourse without consent	(discount of	imprisonment
[2024]	The offender and the victim had been in a	20% applied)	suspended after
ACTSC 283	relationship, broken up but had reunited to	serving six
(Taylor J)	“work things out”. The victim allowed the	The offender	months in custody
offender to stay the night at her residence.	was 52 years of	and
They went to bed together. The victim woke	age and	entering into a
up as the offender pushed her onto her left	pleaded guilty.	GBO for 12
side and inserted his penis into her vagina.	He lacked	months.
The victim asked “what are you doing?” and	genuine
the offender responded “just relax”. The	remorse and
offender continued to engage in penile-	insight into his
vaginal sexual intercourse with the victim	offending. He
for about 10-15 minutes until he ejaculated.	disclosed problematic
alcohol use.
DPP v	Charges: 4x sexual intercourse without	Guilty plea	Count 1 (sexual
Aghahosseini	consent	(discount of	intercourse without
[2024]	2x acts of indecency	15% to 20%	consent): two years
ACTSC 237	4x further dishonesty/personal violence	applied)	and six months
(McCallum	offences	imprisonment
CJ)	The victim (19) and offender (37) met on a	The offender
dating app. The offender messaged the	was 39 years	Count 2 (sexual
victim offering money to meet up in person	old had limited	intercourse without
and watch the victim undress. After meeting	supports in	consent): two years
up, the offender kissed and bit the victim’s	Australia and	and six months
neck and nipples. The victim audibly	had been	imprisonment
protested. The offender penetrated the	employed
victim’s anus with his finger and penis. The	sporadically. He	Count 3 (sexual
offender then forced the offender to engage	had an illicit	intercourse without
in oral intercourse. Later, after the victim	substance	consent): two years
and offender left to obtain funds to pay the	issue. Offender	and six months
victim, they returned to the accommodation	also sentenced	imprisonment
and the offender again anally penetrated	for theft,
Objective Circumstances	Subjective	Sentence
Circumstances	imposed
the victim. The offender again forced the	robbery and	Count 4 (sexual
victim to perform oral sex.	assault.	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 Charges: 2x counts of sexual Guilty plea Threatening to

[2024]	intercourse without consent	(discount of	distribute images:
ACTSC 227	1x count of threatening to distribute	15% applied)	five months
(McCallum	intimate images	imprisonment
CJ)	The offender and victim met a bar. Later in	The offender
the evening, they crossed the road to an	was 19 years of	Sexual intercourse
alleyway and carpark. The offender asked	age at the time	without consent:
the victim if she wanted to have sex. She	of offending	one year and eight
said she did not. They kissed and the	and had a	months
offender digitally penetrated the victim’s	substance use	imprisonment
vagina, which was consensual, but filmed	disorder.
the act, which was non-consensual. The	Sexual intercourse
offender told the victim to sit on a trolley and	without consent:
wrote several words on exposed parts of	two years and one
her body including on her breasts and	month
vulva. The offender took several photos and	imprisonment.
videos of the victim without her consent.
The offender forced the victim to perform	All sentences
oral sex. They engaged in consensual	concurrent.
penile-vaginal sex before the offender
removed the condom. The victim told him	Non-parole period
she would not have intercourse without a	of two years.
condom. The offender proceeded to have further, non-consensual penile-vaginal
intercourse with her.
DPP v Rue	Charges:	Guilty plea	Act of indecency
[2023]	1x Act of indecency without consent	(discounts of	without consent:
ACTSC 270	1x sexual intercourse without consent	5% and 15%	Convicted and
(Taylor J)	The offender and the victim met in October	applied)	sentenced to 19
2019. The offender was a friend of the	months
victim’s partner at the time. Prior to the	Offender had	imprisonment (six
offending, the offender had purchased	limited pro	months cumulative
drugs from the victim on a few occasions.	social	for sexual
He had also previously engaged in drug use	connections,	intercourse without
at the victim’s residence. There was no prior	was a	consent sentence)
romantic or sexual relationship between the	significant drug
offender and the victim. On the evening of	user and	Sexual intercourse
the offending, the offender came over to the	reported poor	without consent:
victim’s house. They took drugs and the	mental health.	Convicted and
victim turned on the CCTV camera above	sentenced to 35
her bed as she had a “bad feeling”. The
Objective Circumstances	Subjective	Sentence
Circumstances	imposed
victim passed out at some stage. The	months
offender spent approximately 44 minutes	imprisonment.
touching the victim’s vaginal area and legs,
placing his fingers inside her underwear	Total head
and rubbing and touching her breasts	sentence of three
stopping only when she appeared to stir or	years and five
regain consciousness (Rolled up count, act	months.
of indecency without consent). The offender
then removed the victim’s pants and began	Non parole period
to perform cunnilingus, digitally penetrated	of one year and 10
her vagina and then penetrated her vagina	months.
with his penis (rolled up count, sexual
intercourse without consent).
Okwechime v	Charges: 1 x sexual intercourse without	No guilty plea	Sentence imposed
The Queen	consent (oral sex)	by Norrish AJ,
[2023]	1 x sexual intercourse without consent	The offender	upheld by the
ACTCA 233	(penile–vaginal)	was 33 years of	Court of Appeal:
(McCallum	1 x act endangering health (Choke)	age and had a
CJ, Mossop	The victim and the offender and his friends	substantial	First offence:
and	arrived at a nightclub together. The victim	criminal history	Convicted and
Charlesworth	had been in company with the offender and	of dishonesty,	sentenced to two
JJ)	his friends for approximately two hours. The	driving and	years and six
victim and the offender left the nightclub	drug offences.	months
together at about 4:15 am and arrived at the	At the time of	imprisonment.
offender’s apartment for a party. On arrival,	the offences,
the victim realised there was not going to be	the offender	Second offence:
a party so she asked the offender if she	was subject to	Convicted and
could charge her phone and then go home.	parole for NSW	sentenced to four
Whilst inside the apartment, the offender	dishonesty and	years
began kissing the victim and the victim told	possession	imprisonment.
him to stop. The victim initially consented to	offences.
oral sex and digital penetration but after	Choking: Convicted
some time the victim refused consent and	and sentenced to
tried to wriggle away but could not. [48] The	one year and three
victim was dragged into a room and the	months
offender performed penile-vaginal sex. The	imprisonment.
victim cried saying: “Please stop this. I want	Choking sentence
to go home. I want to go to my dad” at which	concurrent to
point the offender grabbed her neck and	sentence for first
started choking her. The offender was	offence.
found guilty at trial on three counts. He
appealed his conviction on these counts	Total sentence of
and appealed his sentences for the penile-	five years and
vaginal intercourse and choking counts.	three months.
The appeal was dismissed.	Non-parole period
of 3 years.
DPP v	Charges: 1 x act of indecency without	No guilty plea	Act of indecency:
Earle [2023]	consent	ICO for one year.
ACTSC 93	1 x sexual intercourse without consent	Offender was	Sexual intercourse
(McCallum	The offender and the victim met through a	person of good	without consent:
CJ)	dating application. They had an intimate	character with	ICO for two years
romantic relationship and when that ended	strong pro-	and six months.
they remained friends. The victim contacted	social	ICOs partially
the offender seeking prohibited drugs and	influences.	cumulative.
invited him to her house and “stay over”.	Relatively	300 hours of
The victim went to bed and fell asleep. She	young man	community service
woke up to the offender rubbing her clitoris	without any	and 20 hours of
with his fingers. The offender digitally	criminal history.	counselling.
penetrated the victim’s vagina. The victim	Raised in a
Objective Circumstances	Subjective	Sentence
Circumstances	imposed
alleged that further digital penetration and	loving and
cunnilingus occurred, which were the acts	supportive
charged as counts 2 and 3. The jury	family and
returned verdicts of not guilty for those	holds strong
counts. The offender then inserted his penis	relationships
into the victim’s vagina with force without	with friends,
her consent. The victim said “wait, wait,	family and
wait” and the offender immediately stopped	colleagues.
and asked if she was okay. The victim said	Strong
he had taken her by surprise and he	prospects of
laughed and apologised.	rehabilitation.
DPP v Jones	Charges: 1x sexual intercourse without	Found guilty	Sexual intercourse
(No 2)	consent	after trial	without consent:
[2023]	1x act of indecency without consent	two years and six
ACTSC 99	The offender and victim were work	Twenty-seven-	months
(McCallum	colleagues and matched on Hinge, a dating	year-old young	Imprisonment.

CJ) application. They had consensual man with

intercourse once in June 2021. In July	employment,	Act of indecency:
2021, the victim confided in the offender	social support,	One year
about a previous sexual assault. When they	no substance	imprisonment (six
got to the victim’s house she told the	issues and no	months concurrent)
offender she had vaginal thrush and was in	criminal history.
a “bit of pain” and did not wish to engage in	Poor attitude to	Non parole period
any sexual activity that night. The victim	offences. Had	of 15 months.
went to bed and the offender joined her.	underlying
The offender started feeling all over the	chronic mental
victim’s body and she said nothing and lay	health
still. The offender digitally penetrated the	conditions and
victim while he thought she was asleep.	has been
Offender was found guilty at trial.	suicidal.

R v Finau	Charges: 1 x sexual intercourse without	Found guilty	Two years and six
(No 2)	consent	after trial.	months’
[2020]	The offender and victim were work	imprisonment.
ACTSC 193	colleagues. They met in Civic and attended	The offender
(Murrell CJ)	several night clubs. They shared a taxi to	had no criminal	Suspended after 9
the victim’s residence with the intention that	history,	months on entering
the offender would continue in the taxi to his	otherwise	a good behaviour
own residence. He asked if he could come	impeccable	order.
into her apartment for water and to use the	character.
toilet before ordering himself another taxi.	Stable, loving
She agreed. In her apartment, the victim	upbringing.
changed into sleeping attire. She returned	Positive
to the living room where she found the	character
offender lying on the sofa bed in his	references.
underwear. She asked him to dress. He	Offending
began to put the pants on but directed her	considered out
attention to the fact he had an erection. He	of character.
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
Objective Circumstances	Subjective	Sentence
Circumstances	imposed
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.
R v Lindsay	Charge:	Guilty plea	Sentence imposed
[2020]	1 x sexual intercourse without consent	(discount of	by Elkaim J, upheld
ACTCA 25	The offender and the victim had been	20% applied)	by the Court of
(Murrell CJ,	staying in shared accommodation at a	Appeal:
Mossop J,	hostel. The offender asked the victim for a	The offender
Crowe AJ)	kiss and to massage her shoulders. She	had a lengthy	Two years
told him to go away. He then straddled the	criminal record	imprisonment.
victim while she was on her back and	and serious	Non-parole period
attempted to pull down her top and bra. She	mental health	of 17 months.
tried to push him away and made it clear	issues. There
that his actions were unwelcome. The	was a causal
respondent grabbed the victim by the throat	connection
and pushed her down into the bed. The	between the
victim was fearful and said to the	mental
respondent, “if I do this, you won’t hurt me?”	condition and
to which the respondent responded that he	the offending
would not. The offender engaged in penile-	conduct,
vaginal sexual intercourse with the victim.	reducing the
The Crown appealed the sentence	offender’s moral
imposed, arguing it was manifestly	culpability and
inadequate. The appeal was dismissed.	the objective seriousness of
the offence.
R v Aroub	Charges: 1 x act of indecency	Found guilty	Act of indecency:
[2017]	1 x sexual intercourse without consent	after trial	Convicted and
ACTSC 187	A jury found the offender guilty of offence of	sentenced to two
(Murrell CJ)	sexual intercourse without consent. The	At the time of	months
victim accompanied a friend to Civic. During	the offence, the	imprisonment.
the evening, the friends consumed alcohol	offender was 25	Sexual Intercourse
at several nightclubs. They met the	years old. He	without consent:
offender. In the early hours of the morning	had	two years
the victim, her friend, the offender and	experienced a	imprisonment,
others went to the offender’s home.	traumatic	suspended after six
Eventually, the victim went to a spare room	upbringing and	months upon
where she lay down and fell asleep. The	suffered from	entering into a
victim awoke to find the offender digitally	depression. He	GBO.
penetrating her. He had unzipped her dress	had a criminal
and was kissing her back between the	history for less
shoulder blades. The victim pushed the	serious matters
offender’s hand away. He smiled and told	and no prior
her to “relax”. She told the offender that she	history of
needed to go to the bathroom. She	committing
attempted to do so but was unable to open	sexual
the door as it had no handle. The offender	offences.
assisted her to open the door and she left
the room. The victim found her friend and	He had been on
told her what had occurred. The offender	conditional
was found guilty by a jury.	liberty at the time of the
offence.
R v Agresti	Charges:	Found guilty	2 years, 4 months
[2016]	1 x sexual intercourse without consent	after trial	imprisonment, 18
Objective Circumstances	Subjective	Sentence
Circumstances	imposed
ACTSC 9	The victim and offender were ADFA cadets.	The offender	months of which
(Murrell CJ);	They went out with other cadets to Civic.	was 18 years at	suspended on
Agresti v The	The victim consumed a significant quantity	the time of the	entering a good
Queen	of alcohol and became very intoxicated.	offence and	behaviour order.
[2017]	Later in the evening, the offender and the	was raised in a
ACTCA 20;	victim met up, and took a taxi back to ADFA.	supportive
13 ACTLR 1	On reaching her room, the victim lay on her	family.
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.