STATE OF TASMANIA v DAMIAN IAN CONNOR 30 AUGUST 2023
COMMENTS ON PASSING SENTENCE GEASON J
Mr Connor you appear for sentence upon two guilty verdicts to charges of penetrative sexual abuse of a child and indecent assault.
Your crimes were committed between 1992 and 1994.
I am satisfied that the jury convicted you because they accepted the complainant’s evidence given on the trial, that you entered her bed and began touching her guiding her head towards your penis and placing it in her mouth, and that you subsequently put your hand over her vagina, touching it but not penetrating her. At the time of this offending you had been invited to stay with the complainant’s family with whom you were friendly. The complainant’s mother had permitted you to sleep in a tent on the property on that particular night. The complainant was sleeping in an annexe to the family caravan with a friend. As a friend of the family, you knew the complainant. There had been no relationship between the two of you, nor any previous sexual encounters.
I expressly reject your version of events that the complainant came to you and began engaging in sexually provocative behaviour thereby arousing you in the lead up to the commission of these offences. On the contrary, it seems to me you gave into your youthful sexual urges going to her bed where, as I have said, she was sleeping with her friend. You engaged in touching her followed by the offending I have described. The encounter was a short one, a single episode involving the commission of the two crimes. I noted the presence of her friend and of course that is an aggravating matter for the purposes of sentencing. I cannot be satisfied on the evidence that you ejaculated. The complainant does not describe any such event and was uncertain as to whether that occurred. The evidence of the witness who was with her in the bed was not in my view sufficiently reliable as to that point to enable me to accept it occurred.
Nor am I satisfied on the evidence that it is open to me to find that you were 17 years old when this offending occurred. I intend to sentence you under the terms of the Sentencing Act.
Clearly you were a young man when you committed these offences nearly 30 years ago. The sentencing principles applicable to youthful offenders have relevance, but taking account of the gravity of your offending, the focus on rehabilitation as a primary sentencing consideration which it ordinarily would be is supplanted: not irrelevant but just one matter to be considered in framing penalty. To characterise the offending of which you were convicted as anything other than serious criminal offending is to ignore the very nature of the conduct involved.
Some 30 years has passed since this offending occurred. The relevance of the passing of time when sentencing someone for offences which occurred many years ago rests substantially upon an offenders capacity to demonstrate that in the intervening period he or she has demonstrated a significant degree of rehabilitation. The capacity to point to a long period without further offending is the obvious way to do that and the way in which Court’s have generally treated this principle and I refer to the decision of The Queen v PJB in Victoria and in particular the judgment of Justice Nettle as he then was.
In your case I accept that you have made significant personal progress, and have not reoffended in the same way; you have made a substantial contribution towards marine science through the activities associated with your business. You appear to operate a successful business and through that have made contributions to the community. I have regard to all of the matters put by your counsel in respect of those activities, and which point to your recovery and self-improvement; to your becoming a responsible member of the community. Against that improvement stands an offence in 2015 for which you were convicted in the Magistrates Court. It was a conviction for making a recording in breach of privacy under the Police Offences Act. It involved you recording on a hidden camera, a female volunteer who was assisting you in your business, while she was showering. You claimed that behaviour was not sexually motivated, but produced in order to provide you with material you could use, potentially at least, to humiliate her. It appears to me that the magistrate took the view that there was a sexual flavour to this behaviour. You were sentenced to three months imprisonment wholly suspended. Whatever your purpose, it ultimately matters little because in both explanations rests a significant character flaw, being the exploitation of a female.
That offending deprives you of the right to claim that you have wholly rehabilitated in the period since the offending for which I’m sentencing you today and displaces the principles which are articulated in RDA v Tasmania, the same principles articulated in the case to which I have previously referred The Queen v PJB.
Accordingly I sentence you on the basis that you have made progress towards your rehabilitation and can properly claim that the period of time since this offending demonstrates that progress, but that it is a claim which requires qualification by reason of the 2015 offending.
Furthering your rehabilitation nevertheless remains an important sentencing consideration, sitting alongside the need for personal and general deterrence, and the vindication of your victim.
It will have taken courage for the complainant to pursue this matter so many years later. Her victim impact statement demonstrates explicitly the seriousness impact of these assaults upon her, an enduring impact.
Whilst I’m prepared to accept that you are remorseful, I do not ignore that you persisted in some of your denials through a police interview, and on your trial. I do acknowledge as your counsel has mentioned that some concessions in relation to your behaviour were made to police. You are not to be penalised for asserting your innocence and you were entitled to require the State to prove the allegations it made. To my mind however the exercising of those rights dilutes to some extent the claim to remorse. That said you have acknowledged through your counsel your recognition of the seriousness of your offending and your regret that it occurred, which I accept. You have also apologised which is significant.
This is a difficult sentencing exercise. Because a term of imprisonment is a proper sentencing response to your conduct I requested a home detention assessment report be prepared. I did that on the basis of the submissions made on your behalf with respect to the impact of a custodial term on your current circumstances, and because I was satisfied that such sentence might better reflect the fact that you were a youthful offender when these offences were committed. Nothing that I have said derogates from the fact that this offending occurred when you were a young man, and you should be sentenced on that basis. The relevance of the 2015 offending goes only to your claims to rehabilitation. A home detention order affords an opportunity for your continued rehabilitation, which is required in the view of the 2015 offending, whilst addressing the relevant sentencing considerations to which I have already referred.
You are assessed as suitable for such an order. There might be a perception that a home detention order constitutes a soft sentencing option. That perception ignores the force of the judgment of the Court of Criminal Appeal in Webb and King, a decision within which the punitive nature of such order, deriving from the significant curtailment of liberty which attaches to it, was recognised. The Court unequivocally recognised that such sentence carries personal and general deterrent effect. Importantly such sentence does not ignore the impact of your crime upon the complainant, a matter of great importance to the Court. It is the disposition which best accommodates all of the considerations relevant to this case.
In the circumstances, and having regard to the gravity of the offending and the other matters to which I have referred I order you to serve a period of 16 months home detention subject to the conditions contained in s 42AD of the Sentencing Act, and the special conditions recommended in the pre-sentence report. In order to enhance the punitive affect of the order I further direct that you are to perform 200 hours of community service and you have 3 years to complete that order.
You will be subject to a community based supervision order for a period of two years during which time the Community Corrections Service will provide support with respect to addressing specific needs related to the sexual nature of this offending.
Finally I direct that your name be placed on the register under the Community Protection Offender Reporting Act for a period of 8 years.