DC

STATE OF TASMANIA v DC 15 DECEMBER 2022

COMMENTS ON PASSING SENTENCE BRETT J

Mr C, you have pleaded guilty to a number of sexual crimes committed by you against two children, who at the time could be fairly described as your stepdaughters. The crimes are four counts of indecent assault in respect of one complainant and one count of attempted rape and one count of aggravated sexual assault in respect of the other complainant. For the sake of anonymity, I will refer to the former complainant as the first complainant and the latter as a second complainant.

The complainants are sisters. They are part of a family which also includes their two brothers and mother. Their mother met and started a relationship with you in 2003. By the end of 2004, when this offending seems to have commenced, you were all living together in a house in a small community .

It is clear that, by the time that you committed these crimes, both complainants regarded you as a father figure. Each complainant had a close relationship with you and trusted you. It was, of course, that trust that enabled you to be in circumstances in which you were able to perpetrate the offending which I will now briefly describe. The crimes which you committed breached the trust of each complainant in a terrible and unforgivable way.

The four crimes relating to the first complainant were committed during a single episode, when she was about eight years of age. Her mother and brother had gone to the hospital in the middle of the night because of a health difficulty affecting one of her brothers. She climbed into bed with you because she was scared and worried about her brother. The second complainant, who would then have been about three or four years of age, was asleep in the bed next to you.

Rather than comfort, care for and protect her as you should have done, you abused her trust by sexually assaulting her. You commenced the sexual abuse by rubbing her vagina on the outside of her pyjamas. She tried to resist you by brushing your hand away, but you said words to her to the effect of “It’s okay, you can trust me. Mum will be okay with this”. You then manipulated her body into a position which suited you and perpetrated the indecent assaults. They are constituted by the following acts which were all committed consecutively upon each other:

You started by simulating intercourse by thrusting your erect penis between the child’s legs from behind. The complainant estimates that this went on for a few minutes but said it felt like ages to her. You held your penis with your hand at the front of her legs so as to ensure that it was in contact with her vagina as you thrust backwards and forwards.
You then placed her on her back and licked her vagina with your tongue and rubbed it with your fingers.
Next, you guided her mouth onto your erect penis. You held her head with your hand while you moved your penis in and out of her mouth. You also put her hand on the base of your penis while this was taking place.
Finally, you manipulated her hand so that she rubbed your penis in a stroking motion up and down until you ejaculated. Some of the ejaculate ended up on the complainant’s hand.

Although this was the first episode of sexual abuse perpetrated by you against the first complainant, it was not an isolated occasion. You continued to sexually abuse her until your relationship with her mother collapsed in late 2005 or early 2006, that is, on my calculation, another 12 to 18 months after these crimes were committed. She was aged between eight and 10 years during that time. The ongoing abuse consisted of sexual acts of a similar nature to those already described. You clearly used certain techniques, available to you because of your position of parental authority, in order to ensure her compliance. For example, if she wanted something, you would tell her that she had to work for it, which was a reference to the performance of sexual acts. You also often rewarded her with money, lollies and toys. You continued to reassure her that what was happening was okay and that her mother would agree.

You have not been charged with the ongoing abuse, either by way of separate crimes or as constituents of the crime of persistent sexual abuse, and cannot, of course, be sentenced discreetly for such conduct. However, the ongoing abuse is relevant to the assessment of sentence for the crimes to which you have pleaded guilty, in a number of ways. Firstly, it provides context in that it negates any suggestion that the crimes occurred during an isolated incident or crimes which might have occurred spontaneously. Secondly, the ongoing abuse informs your moral culpability for this offending and the need for personal deterrence. Finally, by committing the ongoing abuse, you have exacerbated, rather than mitigated, the impact of your crimes on the complainant, and have obviated any real opportunity for her to recover or deal with what had happened to her. I will take the subsequent abuse into account in these ways.

The timing of the crimes in respect of the second complainant cannot be specified with precision because of her age, but she recalls that they occurred when she was four years of age and the family was living in the house with you. The crimes were both committed during the same episode. They consist of the following conduct:

In respect of count 7, you were alone with the complainant in the house. The complainant remembers being with you watching her mother drive away from the house. Soon after this, you placed the complainant on her back on the bed, lay on top of her and attempted to have vaginal sexual intercourse with her. You were unable to do so because your penis would not fit into her the vagina. She can recall you making several attempts to push it in and making adjustments to try and make it fit. However, despite these efforts you were unable to penetrate her vagina. This is the crime of attempted rape.
You then penetrated her vagina with a toothbrush, repeatedly moving it in and out of her. When you finished, you told her not to tell anyone and that what had happened was a “dad and daughter secret”. This is the crime of aggravated sexual assault, it was at the time and if committee now would constitute the crime of rape.

Each of the complainants courageously presented me with a detailed description of the ongoing psychological and emotional impact on them of your crimes. Unsurprisingly, your criminal conduct has had a devastating and long-term impact on each of them. I do not intend to discuss the detail of what they have told me, but it is a reasonable summary that the course their lives has been irreversibly changed by what you did. The emotional and psychological effects of the crimes are still profound and continue to permeate many aspects of each of their lives. It is clear that the first complainant has and continues to suffer significant psychological illness. The second complainant has also suffered significant psychological consequences and has, as well, been impacted by observing the effect that your conduct has had on her sister. You have not contested what each has said but, in any event, their description is entirely consistent with the Court’s understanding of the devastating and long term consequences of sexual abuse of this nature perpetrated against children. I accept everything that each woman has said to me.

You are 61 years of age. You have your own adult children, but it seems that you now live by yourself and keep to yourself. You have a reasonable industrial record. Your counsel tells me that you are now in relatively poor health, suffering from chronic pain, back problems, eye disease, depression and suicidal thoughts. Apart from one matter, your criminal history consists solely of traffic and minor regulatory offences. The exception is that in 2017, you were sentenced by this Court to imprisonment for crimes relating to accessing and possessing a significant amount of child exploitation material. These crimes are not prior offences, because they were committed after your commission of the crimes with which I am dealing. However, they do inform my assessment of the need for personal deterrence, and also my consideration of the appropriate order under the Community Protection (Offender Reporting) Act. I note that you were placed on the register under that Act at that time for a period of five years. In 2020, you were convicted and fined for failing to comply with the relevant reporting obligations.

This case vividly demonstrates the many evil aspects of child sexual abuse. It is obvious to me that you used the vulnerability of this family to gain trust and thereby the opportunity to commit these crimes. When the opportunity came, you committed them in a terrible and degrading way. Your commission of the crimes constituted a shocking breach of trust. Each of these children looked up to you as a trusted father like figure and you were able to use this not only to commit the crimes but to manipulate them so they did not report them for a considerable time, hence the crimes remained hidden for that time. These were little children who deserved and relied upon your care and protection, but rather than fulfilling that obligation you used their vulnerability and trust in you to harm them. You did this solely for your own sexual gratification. When each of them reached an age and gained enough knowledge to properly understand what you had done to them, they also realised how you had deceived them and let them down. My perception is that the sense of betrayal and disappointment that each feels because of your deception and breach of trust is a very significant factor which has compounded the ongoing impact of these crimes on them. Finally, aspects of the sexual acts can be regarded objectively as degrading and humiliating. This may not have been appreciated by each child at the time, but I have no doubt that they keenly feel that aspect of your conduct now. The trauma caused by having to recollect and describe the acts perpetrated against her was vividly apparent from the testimony of the first complainant, and I infer that the second complainant’s recollections of what happened to her are also very traumatic.

Your counsel has said all that can possibly be advanced on your behalf by way of mitigation, but really there is nothing in this case that significantly reduces your moral culpability. You have now pleaded guilty, but this only came about during the trial, after the first complainant had completed a substantial part of her evidence. The second complainant has not had to give evidence, but she had been fully briefed, and had obviously expected and was ready to give evidence imminently. You were charged with these crimes in February 2020, almost 3 years ago, and each woman must have been living with the prospect of this trial for that time. I accept that each has now been vindicated by the admissions which are inherent in the pleas of guilty and this part of their ordeal, at least, is now over. However, there is no other real benefit to them, and I detect no remorse from you. You are not to be punished for exercising your right to a trial, nor is a lengthy delay between charge and trial your fault, but you are also not entitled to any significant mitigation as a result of the guilty pleas.

The primary sentencing considerations in this case are general deterrence, denunciation of your conduct and vindication of the complainants. The only possible sentence is a lengthy term of imprisonment. It is appropriate in my view to impose a global sentence. As will be apparent when regard is had to the sentences I would have imposed for each crime individually, which I will set out shortly in compliance with s 11(3) of the Sentencing Act, the global sentence which I intend to impose has been modified to reflect the principles of totality. Having regard to your age, health and plea of guilty, I will permit the possibility of parole but only after you have served a period in prison which I consider appropriate in the circumstances of this case.

DC, you are convicted of the crimes to which you have pleaded guilty. I impose a global sentence in respect of all of these crimes for a term of 10 years. That sentence will commence on 14 December 2022. You are not eligible for parole until you have served six years of that sentence.

As I have already noted, I am required by the Sentencing Act to identify the sentence which I would have imposed for each crime, had I been sentencing for each of them separately. As I have observed on other occasions, my view is that each individual sentence so specified must be assessed without regard to or adjustment for the principles of totality. In other words, it will be as if the sentence was being imposed for the crime, without regard to the commission of or sentence for any other crime. I specify the relevant sentences as follows:

Count one – a term of imprisonment of 18 months.
Count four – a term of imprisonment of 18 months
Count five – a term of imprisonment of three years
Count six – a term of imprisonment of two years
Count seven – a term of imprisonment of two years and six months
Count nine – a term of imprisonment of four years

I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. Pursuant to s 24(3) of the said Act, you are required to comply with the reporting requirements of the Act for the rest of your life, or such lesser period as I determine to be appropriate. Having regard to the serious and insidious nature of this offending, the absence of any evidence of genuine remorse and the fact that since committing these offences you have committed other serious reportable offences, I am not able to determine that a lesser period is appropriate. Accordingly, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for the remainder of your life.