A jury direction that equates the accused's awareness of a circumstance of deemed non-consent under s 36 of the Crimes Act 1958 with awareness that the complainant was not consenting (the mental element under s 39(2)(a)) is erroneous and will result in convictions being quashed. The proper direction requires the jury to assess the ultimate question of mens rea on the evidence as a whole, treating awareness of the deemed non-consent circumstance as relevant to but not determinative of the reasonableness of the accused's asserted belief in consent. Sentencing judges must make cumulation orders that recognise each victim of sexual offending, even where the total effective sentence remains within range.
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