A man who indecently assaulted "one of [his] closest friends" has received a harsher penalty for his crime after a judge found he was, in fact, not confused about the drunk victim's lack of consent.
Liam Jones, 28, was sentenced to a three-year good behaviour order in August last year after admitting to committing an act of indecency on the victim, a former Dendy Cinemas colleague.
However, in an ACT Supreme Court appeal judgment published earlier this week, Justice David Mossop re-sentenced the man to a four-month suspended jail term and a two-and-half year good behaviour order.
Jones is already behind bars for the rape of another friend.
The victims in both cases have given express consent to be identified in media reporting.
Justice Mossop's most significant finding was that Chief Magistrate Lorraine Walker, who initially sentenced Jones, had incorrectly assessed the crime's objective seriousness.
Ms Walker initially found the "landscape of the agreement between them had changed markedly" from the victim making her sexual boundaries clear on a night out to Jones assaulting her while in bed together.
The Chief Magistrate said the context of Jones being invited into the victim's home and bed, where the pair lied "almost naked" in their underwear, was an important factor in assessing Jones' moral culpability.
In the appeal, police submitted that nothing had occurred between the victim telling Jones "you can come over but we are not having sex", and the indecent assault, to change the established lack of consent.
To assess the claim, the judge cited a letter Jones wrote to the court. In it, the offender said he felt "extremely shameful" about his actions and was angry at himself.
"Disgust is another emotion I feel, knowing that I took advantage of one of my closest friends at the time whilst both of us were under the influence of alcohol," he wrote.
"Knowing that despite [the victim] stating that we will not have sexual intercourse and myself accepting that, I still went back on my word and touched her."
The judge said: "There is no suggestion of any confusion or change in circumstances that could provide a foundation for a conclusion that there was a reduction in his moral culpability."
Absent any evidence of Jones misunderstanding the set parameters of consent, Justice Mossop re-assessed the case as one of recklessness which involved "a significant betrayal of trust".
The assault in question took place at the victim's home in April 2021, when Jones touched the woman's genitals inside her underwear for about 10 to 20 seconds after she had said goodnight and tried going to sleep.
"Being violated physically and taken advantage of at my most vulnerable was mortifying," the victim said in an impact statement last year.
Justice Mossop assessed Jones' rehabilitation prospects "only slightly less optimistically than the magistrate did".
"I would characterise him as having good prospects of rehabilitation, rather than 'excellent prospects'," the judge said.
Jones will be eligible for parole in August.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; MensLine 1300 789 978; Canberra Rape Crisis Centre 6247 2525.
