A sex offender was "very much minimising his criminality" when he misrepresented an attempted rape and suggested he may have been "set up", a judge has found.
But Stephen Sarmiento, 30, will not see the inside of a prison cell after the judge also found there was a risk he may receive suboptimal mental health care behind bars.
In the ACT Supreme Court on Monday, Acting Justice Peter Berman instead sentenced the IT support worker to a two-year intensive correction order.
Sarmiento had previously pleaded guilty to a charge of attempted sexual intercourse without consent.
In sentencing, Acting Justice Berman outlined how Sarmiento had met his victim at a Civic nightclub in February last year.
The young woman agreed to "hang out" with the offender on the condition nothing sexual happened.
Acting Justice Berman said she told Sarmiento this "about four times".
"She never changed her mind," the judge said.
Sarmiento and the victim eventually went, via a McDonald's drive-through, to the Phillip apartment where he lived at the time.
They fell asleep while cuddling on a lounge and, upon waking up, moved into the offender's bedroom.
About 6am on the morning in question, the victim woke to the feeling of Sarmiento attempting to sexually penetrate her about three times.
After initially pretending to still be asleep because she was scared, the victim told him to stop.
Sarmiento eventually complied, but not for about 10 seconds.
A short time later, the victim texted a friend to say she had woken up to Sarmiento "trying to f---ing rape me".
Before she left his apartment, Sarmiento told the woman he was sorry but he "couldn't help it".
"It was not the sort of apology that would bring much comfort to anyone," Acting Justice Berman said on Monday.
During submissions, defence barrister James Sabharwal asked Acting Justice Berman not to lock Sarmiento up and to instead impose an intensive correction order.
Prosecutor David Swan pushed for time behind bars, arguing a lesser penalty would not adequately deter others, denounce the crime, or recognise the harm done to the victim.
Mr Swan raised concerns about Sarmiento's attitude to his crime, citing a pre-sentence report that said the 30-year-old seemed more concerned with the impact on himself than on the victim.
The prosecutor urged the court to be sceptical of psychologist Tania Dhillon's opinion Sarmiento had accepted full responsibility for his actions, noting the man had also complained to the report author about potentially being "set up".
While Mr Swan was cross-examining Ms Dhillon, it also emerged that Sarmiento had misrepresented his crime to the psychologist in multiple ways.
Acting Justice Berman said these included claiming he had immediately stopped when the victim told him to, despite agreed facts saying he had not ceased for about 10 seconds.
The judge said Sarmiento had also told Ms Dhillon the victim had described being "up for anything", despite pleading guilty on the basis she had made it "crystal clear" she was not.
These discrepancies meant Acting Justice Berman needed to reduce the weight he placed on aspects of Ms Dhillon's professional opinion.
However, the judge said he had no reason to doubt the psychologist's evidence about Sarmiento being suicidal.
He also noted Ms Dhillon's concerns that it may take months for Sarmiento to develop a worthwhile rapport with another clinician if the offender went to jail and could no longer see her.
This was partly why Acting Justice Berman settled on a community-based sentence.
As part of his intensive correction order, Sarmiento must perform 400 hours of community service work.
