No jail time for attempted rapist who told woman he 'couldn't help it'

CONTENT WARNING: This article refers to an attempted sexual assault.

A man who tried to rape a woman he met during a night out in the city before telling her, “Sorry, I couldn’t help it”, was spared jail time when he was sentenced.

The woman danced and had a couple of drinks with Stephen Sarmiento after she met him at a Civic nightclub in February 2022, ACT Supreme Court sentencing remarks say.

He asked if she wanted to hang out afterwards and she replied that she was happy to, as long as nothing sexual happened. She told him this four times.

They drove back to his apartment and cuddled on his couch for a while. She agreed to go to his bedroom and fell asleep on his bed, still wearing her clothes.

She woke up several hours later to find that her underpants had been pulled down and her dress pulled up to her waist while Sarmiento was trying to sexually penetrate her.

He tried to do so about three times while she pretended to be asleep because she was scared.

“Eventually, she plucked up enough courage and told the offender to stop,” Acting Justice Peter Berman said.

“He did stop, but not immediately, continuing for about another 10 seconds.”

The woman got out of bed and texted a friend, telling them, “I woke up to him trying to f-king rape me”.

Sarmiento apologised before she left. But Acting Justice Berman said, “It was not the sort of apology which would bring much comfort to anyone”, as he had only told her, “Sorry, I couldn’t help it”.

He pleaded guilty to a charge of attempted sexual intercourse without consent before he came before the court to be sentenced on Monday (24 April).

Acting Justice Berman said the fact the woman was not consenting “was made crystal clear to him,” and what had ended the offence was her waking up and telling him to stop. But even then, he didn’t stop immediately.

“Being asleep, she was vulnerable in the extreme,” the acting justice said.

He said the offending had caused significant harm to the woman.

“She continues to have issues trusting men and is now uncomfortable around men, even including those in her own family,” he said.

The Philippines-born Sarmiento, now 30, was 29 at the time of the offence, so the acting justice said “he can scarcely claim that his decision to try to have sex with [the woman] was in some way contributed to by immaturity”.

A report by psychologist Tania Dhillon noted he had depression that was is in the extremely severe range with suicidal ideation.

She said he was “a high risk for suicide given his persistent ideation and self-deprecating dialogue in sessions and it is my clinical opinion that imprisonment would have a significant adverse effect on his mental health”.

Acting Justice Berman said due to his mental health condition, a sentence of imprisonment would weigh more heavily than would otherwise be the case, while he also noted the IT support worker had no prior criminal history, was in stable employment and had the support of his family.

Due to these factors, he decided that full-time prison was not required.

Sarmiento was convicted and sentenced to two years’ jail to be served as an intensive corrections order, which is a community-based sentence. He must also complete 400 hours of community service.