STATE OF TASMANIA v THOMAS FARBOH 27 JUNE 2024
COMMENTS ON PASSING SENTENCE MARTIN AJ
Mr Farboh, you have been convicted by a jury of maintaining a sexual relationship with the female victim, who was then aged 15 years. At the relevant time, between 17 September 2019 and 7 August 2020, you were aged 22. The jury was satisfied that during this period you engaged in vaginal sexual intercourse with the victim on at least three occasions, but it is not known whether the jury were agreed as to which three acts occurred of the five relied upon by the Crown. Similarly, it is not known what view, if any, the jury reached as to whether the acts of intercourse amounted to rape or penetrative sexual abuse of a young person.
I must sentence you on the basis of the facts of your crime that I find proved beyond reasonable doubt, being facts consistent with the verdict of the jury. As will be apparent, I accept beyond reasonable doubt the essential evidence given by the victim.
In 2019 you made contact with the victim through Snapchat. You did not know each other and your initial contact, from the victim’s perspective, was from an unknown person. Communications continued for about three weeks and led to a face to face meeting soon after the victim’s 15th birthday, which occurred in September 2019.
It appears that prior to your first meeting you and the victim engaged in text exchanges in the early hours of 15 November 2019. You asked where the victim lived and suggested she message you on Snapchat. The victim was evasive about her address, at first referring to Australia, then “Tassie”, and then Hobart. In response to you asking whether you could see her “tomorrow night” and whether you and she could “go for a drive or something”, the victim responded that she did not know how she was going to get out without anyone knowing and added “you wanting a root or something”. You replied “Nah, hahaha, up to you if you want some lol why’s that?” The victim replied with a reference to you having a “dick” and made the suggestion that you were going to want a “root”, to which you replied, “Hahahahaha true”.
Later in the exchange you asked the victim to send you pictures and she replied “okay” but said that you should keep in mind that she was a virgin. That message was followed with a further message asking what you wanted out of it.
There was also an additional reference by the victim to not knowing how she was not going to get caught if she went out with you. You also repeated your request for pictures.
You and the victim met at Waverley Lake and the victim accompanied you in your car to a home which you told her belonged to your uncle. Eventually, the victim followed you into the bedroom and the pair of you sat on the bed to watch a movie. You initially put your hand on the victim’s thigh and she tried to push it away. Although you took your hand off her thigh, you put it back.
You and the victim later engaged in mutual kissing. During this course of events, on two or three occasions, the victim told you that she did not want to do anything and you conveyed that you understood. However, you persisted and, without physical resistance from the victim, you obtained a condom and engaged in both vaginal and anal intercourse with the victim.
In a subsequent police interview you admitted this act of intercourse. You claimed the complainant told you she was 18. I reject that claim.
I am satisfied you understood, prior to this first occasion of intercourse, that the victim was a virgin and was aged only 15. That was your belief, regardless of whether it was true or not. I am also satisfied that the victim did not want to have intercourse with you and, notwithstanding her lack of resistance, she said and did enough to alert you to her reluctance and make you aware that she might not be consenting. In having intercourse with her, you were reckless as to whether she was consenting or not. In these circumstances, I am satisfied that the first occasion amounted to the crime of rape and on the factual basis of the victim’s lack of free consent and your recklessness as to whether she was consenting or not.
As to the remaining four occasions, I am satisfied that acts of sexual intercourse occurred with the victim on each of these occasions as described by the victim.
The second occasion of intercourse occurred at the victim’s house when you attended and the victim took you into the bedroom where vaginal intercourse occurred.
The third occasion occurred at Hungry Jacks when you took the victim into the disabled toilet and engaged in an act of vaginal sexual intercourse with her.
The fourth occasion occurred at a camp site, when you commenced an act of vaginal sexual intercourse in a toilet before leaving hurriedly when you were frightened by a spider. The final occasion occurred when you took the victim for a drive in your car toward the area of Nunamara and vaginal sexual intercourse occurred in the car.
On each of these occasions, although I am satisfied that the complainant, to some extent, was reluctant to have intercourse, she did nothing to convey that reluctance to you. She passively submitted. It is likely that you possessed an honest and reasonable belief that the victim was consenting. Your crime on each of these four occasions was having intercourse with the victim when she was under the age of 17 years. I reject your claim that you believed she was aged 17 years or more. This is the crime of penetrative sexual abuse of a young person.
The commission of these unlawful sexual acts, five of them, forms the basis of your crime of persistent sexual abuse of a young person. In this way you maintained the sexual relationship with the 15 year old victim between September 2019 and August 2020.
It is appropriate to mention that on three occasions you did not use a condom. On one of those occasions the victim was not able to seek the assistance of medication from a pharmacy, but on the other two occasions she attended soon after intercourse at a pharmacy and obtained an emergency contraceptive pill.
In her victim impact statement, the victim has spoken of the significant impact of your conduct. She regularly experiences a physical reminder which causes emotional trauma through flashbacks. Her emotional state has adversely affected her relationships.
At the time of your abuse the victim became socially isolated and kept what was happening from her parents. In her words, “I was very alone.” Later the victim left home and ended up being homeless for about a year.
The victim describes herself as being “sad”. That word appropriately describes the underlying appearance and demeanour of the victim throughout her evidence. The victim conveyed intelligence and essential honesty, but also a dull and sad effect.
Mr Farboh, you took advantage of a vulnerable 15 year old child. She made an immature and unwise decision to accompany you on the first occasion, a decision which was repeated on later occasions when the victim knew what was likely to happen. This type of behaviour is not uncommon among teenagers who make immature and unwise decisions which adults find difficult to understand. Such decisions are often made under the influence of older persons like you. But it happens, and not infrequently. It is one of the reasons why our community, through Parliament, has made laws in an endeavour to protect children from the consequences of such decisions. These laws are aimed at protecting children from adults, like you, who are willing to take advantage of the immaturity and vulnerability of children for sexual purposes.
Unfortunately, these types of crime are far too common and they cause significant and long lasting psychological harm. General deterrence, that is, deterring others who are minded to behave like you, is an important factor in sentencing. So too is denunciation of your conduct to reflect the widespread community concern about sexual abuse of children.
Mr Farboh, every crime of sexually abusing a child is a serious crime. But as with every crime, there is a scale of seriousness.
Your crime is not at the top of the scale, but nor is it at the lowest end of the scale of seriousness. As I said, you took advantage of a vulnerable young teenager who you had never met before. You set out to use the child for your own sexual gratification and you began with the crime of Rape, knowing the child was only 15 and after she had told you she was a virgin. Then over the following 11 months you abused your position of control on an additional four occasions, all for your own sexual gratification.
I am satisfied that at no time were you genuinely interested in forming a long term relationship with the complainant. You used her solely for your own sexual gratification.
There are no mitigating circumstances accompanying the objective circumstances of your crime.
Further, you are not entitled to the benefit of a plea of guilty and I am unable to detect any signs of remorse.
You were born in 1997 and you are now aged 27. Your personal history is a remarkable story which speaks volumes as to your resilience and initiative. You were born in Sierra Leone, one of five children, three of whom are now deceased. You grew up without a father and lost your mother when you were aged only nine. In the last couple of years of your mother’s life, and following her death, you worked the streets to survive. When your mother died your sister was taken in by your maternal grandparents. You last saw her when she was only three. Somehow you survived on the streets until you were aged 14 when your uncle, that is, your mother’s brother, adopted you. Your aunt made it to Melbourne in a refugee program and your journey to Australia began with your uncle and cousin. It took a number of years and a number of refugee camps before you, your uncle and your cousin were accepted. At the age of 18 you came direct to Launceston and stayed. You completed year 11 through the refugee program and obtained a scholarship for year 12 at St Patrick’s College. While at college you were constantly employed and you have an excellent employment record thereafter, commencing as a machine operator. At the time of offending you were undertaking an apprenticeship with a car company which was terminated following your arrest. After a couple of short term jobs, in July 2022 you obtained permanent work which continued until I revoked bail this week. You were promoted to second in charge of a team of 20.
From 2015 to 2018 you were in a relationship and there was one child born in 2016. Family Court proceedings resulted in you being granted custody in December 2019 and you have maintained custody and support of the child ever since. Counsel has informed me that the mother is in Victoria and has not seen the child for 12 months. In December 2020 you commenced a relationship with a woman who is now your wife. Unfortunately, your wife miscarried in April 2021, but there are now two children born in March 2022 and May 2024. So Mr Farboh, you have been supporting your family and your son from the first relationship. I am informed by counsel that you have also been supporting your sister in Sierra Leone who is unwell, and that you also provide support to an orphanage.
It is indeed unfortunate, that as a consequence of your offending your family and child and others will lose the support that you have been providing. Over the years you have displayed resilience, initiative and other good qualities and since being in Australia you have been industrious and responsible. You have no prior convictions apart from a couple of traffic offences.
All your good work has been seriously undone. It was undone when you approached a vulnerable child through social media. Notwithstanding her language in the exchanges to which I have referred, there were two very loud warning signals for you. First, on more than one occasion the victim messaged that she did not know how she was going to get out without anyone knowing or without getting caught. Secondly in the context of those crude messages about you wanting intercourse, the victim wrote “okay, just keep in mind imma virgin”.
Mr Farboh when you first met the victim at the lake and took her to your home, you were intending to have intercourse with her. You had that intention notwithstanding that you knew she was only aged 15 and you had been told by her that she was a virgin. You knew she was living in circumstances where she needed to get out of the home without being caught or making others aware. It must have been obvious to you that the child was under some form of parental control. So it was in this total context that you did not merely set out to meet and get to know this child who you had never met before, you went immediately to your home and set about putting the child into a position where you could achieve your purpose of sexual intercourse. Subsequently you made no effort to meet and socialise with the victim to establish any form of reasonable ongoing relationship. On sporadic occasions you made contact, again for the sole purpose of engaging in sexual intercourse. To put it another way, for the sole purpose of your own sexual gratification.
I detect no sign that you appreciate the damage you have caused to the child or that you are sorry for what you did. In sentencing you I am aware of your permanent residency visa and the risk that the visa might be revoked. It is probably appropriate to say that the likelihood of your visa being revoked is very high. As I mentioned there is obviously going to be a severe impact on your family.
I have already recorded the conviction; I did that on 24 June. The application for confiscation of the mobile telephone is granted. The details of the mobile phone are contained in the letter from Mr Sherriff to Mr Richardson dated 3 June 2024.
The Community Protection (Offender Reporting) Act 2005 provides in s 6 that I am required to make an order requiring the Registrar to cause your name to be placed on the register and that you comply with reporting obligations under the Act unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. This is not a case where the Crown is required to prove that you do pose such a risk. I am required to make the order unless I am satisfied you do not pose the risk. Having regard to the circumstances I have outlined, and notwithstanding the current stability of your family life, I am not so satisfied. I order that you name be placed on the register and that you comply with the reporting obligations under the Act for a period of 5 years from your release.
I impose of imprisonment for 5 years commencing on 24 June 2024. I am exercising a significant degree of mercy and leniency bearing in mind your background in directing that the sentence will be suspended after you have served 2 years. It will be suspended on condition that for a period of 3 years from the date of your release you do not commit any offence punishable by imprisonment.