Chief Justice Ewan Crawford

Chief Justice Ewan Crawford

Another Australian judge has expressed difficulty with sentencing and the issue of consent in a rape case.

Tasmanian Chief Justice Ewan Crawford said he had difficulty with the sentencing of a man on the same day this week that South Australian Judge David Smith expressed concerns about sentencing a "technical rape".

Arvind Prasad, 36, had pleaded guilty to one count of aggravated sexual assault and one count of rape committed in September 2008.

Justice Crawford sentenced him in Launceston on Wednesday to three years jail with a non-parole period of 18 months.

Prasad had no relevant prior convictions and Justice Crawford said his behaviour that night was out of character.

He had a good employment record.

Justice Crawford said Prasad would alternatively have been found guilty of sexual intercourse with a person under the age of 17 because the girl was aged 16 at the time.

Prasad and his victim, who had been close friends for about a year, were drunk when she was staying overnight in separate rooms at his Launceston home.

However, it was not a sexual relationship, Justice Crawford said.

Some time after attending to her about midnight when she was sick from drinking, Prasad got into bed with his victim, waking her but she made no objection, pretending to be asleep, he said.

It was then he used his fingers a couple of times, committing the crime of aggravated sexual assault.

Justice Crawford said, in the law's eyes, Prasad did not have consent to do that.

He then had intercourse briefly with her before changing positions to continue having sex with her.

"Once again, the girl made no objection but continued to pretend to be asleep," Justice Crawford said.

Justice Crawford said that legally a person does not consent to an act unless they say or do something to communicate consent.

Shortly after, Prasad rolled her onto her back and got on top of her.

This time, she made it clear that she was not consenting by striking him in the face and saying: "Don't".

He stopped what he was doing and got off her, Justice Crawford said.

"The reason why she did not object earlier to what he was doing was not explained to the court," Justice Crawford said.

"I find the sentencing task a difficult one because of circumstances that are unusual so far as the issue of consent is concerned."

Justice Crawford noted that had the victim objected to the two illegal acts that led to a definite rebuff, that was observed, then the man would not have committed those crimes.

"He will be sentenced on the basis that if she had indicated earlier that she objected to what he was doing, he would not have committed either crime," Justice Crawford said in his judgment.

"Nevertheless, he will also be sentenced on the basis that she did nothing to indicate she was consenting and that he was aware, or if not, he ought to have been, that she appeared to be asleep when he got into bed with her and took off her clothes."

In South Australia, Judge Smith has adjourned his "technical rape" sentencing until next week.

He has questioned whether he should impose a jail term on Matthew Sloan, 29, who continued sexual activity with a drunk woman after she passed out after consenting to sex.

Judge Smith said the technical rape was at the lower end of the scale and questioned whether a suspended jail sentence was too harsh a penalty.