STATE OF TASMANIA v IBA 19 SEPTEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
IBA, you have pleaded guilty to two counts of persistent sexual abuse of a young person. The victims of your crimes are your twin granddaughters, whom I shall refer to as “A” and “B” to protect their privacy. Their mother is your daughter. The crimes occurred between August 2011 and September 2018. You were committing sexual acts upon both A and B at the same time. They were aged between 7 or 8 and 14 during the relevant period. You were aged between 64 and 72. You are now 78.
A and B both lived in Devonport but would often visit you and their grandmother at your home in Burnie during school holidays. Their grandmother, your wife, passed away in August 2011. It was shortly after her passing that you began to sexually abuse your grand daughters. After their grandmother’s passing, A and B continued to come and spend time with you. They would be at your residence during most school holidays, save for a period between the end of 2012 and mid-way through 2014 when they both relocated with their mother to live in Queensland. When they came to stay with you, they would usually be there for between three and seven days. During the time they were at your house, your sexual abuse of both A and B was regular and persistent.
In respect to A, the offending commenced when she was approximately 7 or 8. It started with you touching her to the area of her chest over her clothes. It progressed to you touching her on the breasts, under her clothing. The touching would happen every couple of days whilst she was staying with you. She estimated it would occur between two and four times during any given week’s stay. You would do it to her whilst she was in bed, or on the couch.
In respect to A, the specific occasions the State rely upon in respect to the crime of persistent sexual abuse of a child are as follows. On one occasion during school holidays, towards the end of 2017, A was asleep in your room. You entered, hugged her and rolled her onto her back. You pulled her pyjama top up and sucked on her nipples. You then put your hand into her pyjama pants and put your hand onto her clitoris, rubbing it in a circular motion. This was the first time that you touched A to the vagina.
Thereafter, you regularly began to touch her vagina, particularly when you and she were sitting on the couch together. There were also occasions when you touched A to the breasts whilst B was present in the same room, and there were occasions when you touched B to the breasts whilst A was in the same room.
The second specified occasion occurred in 2018. A went to sleep in your bed. Around 11.00pm you entered the room, lifted her top, touched her breasts and sucked on her nipples. You also touched her to the vagina under her clothing.
The third occasion was when A was aged 14. She was sitting on the couch. You and A were alone in the house as B had gone out. You approached A, pulled your penis out and said, “Suck this”. You put your hand onto the back of A’s head and pulled it towards your penis. You penetrated her mouth with your penis and made her perform oral sexual intercourse upon you. You ejaculated in her mouth. Afterwards you said to her, “You’re gonna need a glass of water after that”. This is the only occasion A can recall when you forced your penis into her mouth.
A stopped going to your house in 2018. She reported the offending to police the same year, but then decided she was not in a position to proceed with the complaint. In January 2021, she re-reported the matters to police in Victoria.
Your sexual abuse of B also commenced when she was aged around 7 or 8. You began to touch her to the breasts and the vagina. You would touch her whilst she was sleeping in your bed. Your abuse of her also included kissing her and putting your tongue into her mouth. After about a year of touching her to the breasts and vagina, you began to make B perform oral sexual intercourse upon you. You also made her masturbate your penis. You would make B sit on top of you and rock back and forth on your penis so as to simulate sexual intercourse. You would ejaculate when she did this. B describes this type of sexual abuse as happening “a lot” whilst she was staying with you.
B can identify three specific occasions which constitute the crime of persistent sexual abuse of a child. The first of those occasions was when B was aged 10 or 11. She was in your bedroom pretending to be asleep. You entered, lifted her shirt and started touching her on the breasts. You also touched her vagina, around the area of her clitoris. You kissed her. You then told her to, “suck my dick”. You penetrated her mouth with your penis and made her perform oral sexual intercourse upon you. You ejaculated in her mouth.
The second occasion also occurred when B was aged 10 or 11. She was on the couch in the lounge room. You made her masturbate your penis. You ejaculated onto her hand.
The third occasion involved a similar act. You had been outside. You came into the lounge room where B was and started to touch her breasts. You asked her to give you a “hand job” and you made her masturbate your penis.
The sexual abuse of B stopped only when she ceased coming to your home. She reported the abuse to police in April 2021.
On 13 June 2021, you were questioned by police. You denied any offending behaviour.
I note you are to be sentenced with respect to the specific occasions and not the uncharged conduct, but of course the uncharged conduct is relevant to your moral culpability generally. It also places the specified occasions into context. These specified occasions were not the only instances of sexual abuse your victims endured. Rather, the specified occasions occurred against a background of persistent sexual assaults during the time A and B were at your residence.
You abused you grand daughters by taking advantage of their innocence and their trust. You also abused the trust your own daughter placed in you by allowing A and B to stay at your residence. Your conduct was a fundamental abandonment of your duty as their grandfather, to care for them and to protect them from harm. You persisted with your acts of abuse despite their obvious vulnerability as small and trusting children. Your conduct went on for a significant period of time, with the specified occasions occurring over a seven-year period. Whenever your grand daughters were in your care and staying with you, you took the opportunity to abuse them for your own sexual gratification. You subjugated their needs for your own sexual needs. Your moral culpability, in my assessment, is very high.
Aggravating circumstances for the purposes of s 11A of the Sentencing Act are that each complainant was, as your grand daughter, under your care, supervision and authority. The main of the abuse occurred when they were both under the age of 13 years, and some of the abuse occurred in each others presence.
Your crimes have had a terrible impact upon your grand daughters. A has provided her Victim Impact Statement in writing. B has read her Victim Impact Statement to the Court. Both statements are eloquent and compelling. They assist the Court in understanding the impact these crimes have upon child victims. Both statements reveal the pervasive harm that your crimes have had upon your grand daughters. It is difficult to summarise the statements whilst still doing them justice, but in brief A has lived with an ongoing sense of fear, apprehension and feelings of helplessness. She has suffered daily because of your crimes. She has felt diminished as a person and has struggled with relationships and employment. She has experienced poor sleep, overwhelming feelings of insecurity and periods of exhaustion arising from constant feelings of fear and dread. There has been a profound impact on her self-esteem. She feels that her family has been broken because of your crimes. Such a consequence is sadly, a common outcome of crimes of child abuse. Victims not only suffer the horror of the abuse itself, but families are frequently divided, with the consequence that the victims suffer again by the loss of family support.
B has also been terribly affected by your crimes. She has been left with an immense sense of mistrust and betrayal. She lives in a state of hyper-vigilance. Maintaining adult relationships is difficult for her. Her sleep is disturbed by nightmares and she experiences panic attacks. Her studies have been badly affected. Her self-esteem has been impacted. Potential career pathways have been lost to her. She has been diagnosed with complex post-traumatic stress disorder. There have been several periods of depression. The trauma she experienced sadly led to her self-harming and there has been a suicide attempt. Your abuse has adversely permeated every aspect of her life.
Put simply, you robbed both complainants of the innocence of childhood. Their whole lives have been about trying to recover from the harm you caused. The effects of your crimes will remain with A and B for the rest of their lives, notwithstanding their obvious strength and commitment to recover from the damage you have caused.
I note the defendant has significant health issues that impact daily upon his life. He is both blind and deaf and has mobility issues. I accept that will mean imprisonment is undoubtedly going to be more difficult for him than for others because of these conditions. I must, however, assume that he will receive essential care and treatment whilst serving his prison sentence, but it is reasonable to infer that it may not be at the same level as he would receive if he was in the community. I also accept that as the years advance, it is likely that his health and mobility will deteriorate further, and the experience of imprisonment will become increasingly difficult. That said, whilst the state of health of a defendant is always relevant to the consideration of an appropriate sentence, ill health cannot be allowed to become a licence to commit crime, nor can defendants be expected to escape just punishment because of the condition of their health.
The defendant’s poor health must be balanced against the objective seriousness of his offending, and the high moral culpability that he bears. It is also relevant to consider that the defendant was still offending when he was 71 years of age. There is nothing before me to suggest he did not fully appreciate the wrongfulness of his conduct. His impaired eyesight and hearing have been a feature of his life for many years. These impairments were well established before and during the time he was offending. He chose to continue offending. He chose to tell the authorities that he had not committed these crimes. He chose to maintain his plea of not guilty for a considerable period. He could have chosen to face the consequences of his criminal conduct at an earlier point in time before his impairments were as grave as they now are. He did not do that. To a significant extent, the predicament in which he now finds himself is of his own making.
I will sentence bearing in mind the reality that, the period of imprisonment I must inevitably impose, will be harshly felt by the defendant, and he will be vulnerable within the prison environment, but that is just one factor amongst many that must be carefully balanced in this sentencing exercise. The objective seriousness of his criminal conduct, his moral culpability for it and the overriding sentencing imperatives of general deterrence, vindication of the victims, community denunciation and protection of children remain most important and weighty considerations.
The defendant is entitled to credit for his pleas of guilty, even though I am not of the view that the pleas of guilty are strongly demonstrative of remorse. The defendant denied the allegations to authorities when interviewed. The matter was listed for trial. The pleas of guilty were entered at a late stage. The complainants were expecting to have to give evidence and had begun preparing themselves for the enormity of that task, although I accept, they had not yet been formally briefed by counsel for the State. The pleas of guilty still entitle the defendant, in my view, to some reduction in the length of his sentence because they have avoided the need for a trial. The giving of evidence at a trial, in front of a jury, would have undoubtedly been difficult and confronting for the complainants, and it would have risked re-traumatising them and therefore adding to the harm that you have already caused to them. I accept the plea of guilty facilitates the course of justice and indicates some acceptance of responsibility, albeit a rather late acceptance.
There is no question these are very serious crimes. IBA, as A and B’s grandfather, you were responsible for caring and nurturing them. Their home lives were rather chaotic, and they looked to you for love and support. Instead, you took advantage of your position and power over them to subject them to terrible sexual abuse. In respect to each complainant, the three occasions identified, is but an example of acts regularly committed during the indictment period, except for the oral intercourse you forced A to perform.
Both A and B were very young when the abuse commenced, and it continued for the main of their childhood. The abuse was committed in a home where they were entitled to feel safe. Your acts of ejaculating inside the mouths of A and B were particularly confronting and degrading. You robbed A and B of a happy and nurturing childhood and instead created an environment marred by fear and distress. In my view, your actions constitute a grave breach of trust.
For the crime of persistent sexual abuse of a child, a defendant should receive a sentence that reflects the sentence he would have received if charged with the specific occasions that fall within the charge, but which allows for the fact that he is being sentenced for a number of incidents. The final sentence imposed must be moderated so that it is just and proportionate to the totality of the offending. At the same time, the sentence must adequately reflect the gravity of each specific occasion of abuse, the appalling breach of trust, and the profound and lasting harm that has been caused to A and B. Because I intend to impose a global sentence in respect to both crimes, I am required pursuant to s 11(3) of the Sentencing Act to identify the sentence which I would have imposed for each offence had I sentenced separately. I identify those sentences as six years in respect to count 1 and seven years in respect to count 2. But for your plea of guilty, those sentences would have been higher. After making the appropriate allowance for totality and proportionality I make the following orders.
IBA, you are convicted of both counts on the indictment. I make an order under the Community Protection (Offender Reporting) Act 2005, directing that the Registrar cause your name to be placed on the register and that you comply with the reporting obligations under that Act for a period of 15 years following your release. You are sentenced to imprisonment for 11 years from 18 September 2024. I order that you not be eligible for parole until you have served six years of that term.