Self-induced intoxication cannot be used by a sentencing judge to 'explain' an offender's conduct where such explanation effectively minimises moral culpability, even if the judge expressly disclaims using it as a mitigating factor. The substance of the sentencing judge's reasoning, not its form, determines whether intoxication has been impermissibly taken into account. For sexual assault offences under s 61I, the offender must be sentenced as if sober. A conviction on one count of sexual intercourse without consent is not necessarily inconsistent with a failure to agree on a separate count arising from a distinct act of intercourse, where the jury may have assessed the accused's state of mind differently at the time of each act.
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