STATE OF TASMANIA v JACOB HEATLIE JOHNSTON 26 OCTOBER 2023
COMMENTS ON PASSING SENTENCE PEARCE J
Jacob Johnston pleads guilty to two counts of bestiality. About 2.00 am on 10 June 2022 he took a female goat into the amenities block at the Branxholm campground. The animal was normally housed with other animals at the adjacent café and animal farm business. While inside the amenities block he penetrated the goat’s vagina with his penis. What occurred caused distress to the animal. The noise it made over a period of up to two hours was heard by a visitor staying in the camp ground. When the animal was found and examined it had noticeable swelling to its vulva and vaginal wall.
About five months later a goat kept in a paddock in a different part of Branxholm was observed by its owners to have an altered gait and a swollen and bleeding vagina. A veterinary examination disclosed the presence of an oily substance near its tail and an abnormally swollen vulva with a slight blood stained discharge. Internal swabs taken from the animal disclosed the presence of the defendant’s DNA. He had penetrated the animal’s vagina with his penis. It was the evidence discovered on this occasion which led to his identification as the person responsible for both crimes.
Likely as a reflection of the type of moral outrage that members of the community may experience in response to crimes like this there have already been public calls for the defendant’s imprisonment. There may well be occasions on which imprisonment is required for this crime but this is not one of them and it is not a course I am going to adopt. A fair and just society does not send a young man in the defendant’s circumstances to prison, at least for these crimes. At the time the defendant committed these acts he was 20. He is now 21. He is of extremely low intelligence consistent with a mild intellectual disability. He enjoyed school but did not continue past grade 9 and has limited literacy. He has been the subject of significant deprivation and hardship since he was a baby. His mother died from breast cancer soon after he was born. His father was unable to care for him and he was taken into foster care. When he was 15 months old his paternal grandmother brought him from New South Wales to north east Tasmania and cared for him until he was 14. Between age 14 and about 19 he lived elsewhere. He later reported that during this period he was the subject of regular sexual and physical abuse and verbal denigration by a person who was not a member of his family. At his age and with his limited intelligence he did not know how to tell anyone what was happening or seek help. The abuse only stopped after his father, who also lived in the area and with whom by then he had resumed a relationship, noticed his changed behaviour. Before then the defendant had no other sexual experience. He had a very limited social network. Despite his lack of education he was industrious and had employment using the building and painting skills he learned after leaving school. However he spent a good deal of time in the bush, where he built himself a shack, doing woodcutting, building, cooking and fishing. He has regularly used cannabis since about age 12. When he turned 18 he fell into bad company and began abusing alcohol and using methylamphetamine.
I have a report from Dr Georgina O’Donnell. In her opinion there are a constellation of factors which contributed to these crimes, most prominently the recent prolonged sexual abuse. It has likely had a marked impact on the defendant’s psycho-sexual development and, combined with his intellectual disability and use of illicit drugs, impaired his ability to exercise appropriate judgment. The defendant told Dr O’Donnell that he had used alcohol, cannabis and methylamphetamine before both incidents and acted spontaneously. Use of methylamphetamine in particular is linked to sexual recklessness and unusual sexual behaviours. Some of the information about the defendant’s personal circumstances also comes from a pre-sentence report prepared by a probation officer. The defendant informed the author of the report that he has ceased other drugs but continues to use cannabis heavily as a form of self-medication.
In deciding the appropriate sentence, the need for general deterrence, that is, to prevent crime by deterring other persons from committing similar offences, is to be taken into account. It is a crime which is inherently difficult to detect. However, in this case, I do not regard general deterrence as a factor of much significance. That is not only because the defendant’s blameworthiness is less because of his intellectual disability. Examples of this crime are rare. There might be more, but I can only find two in this State, one in 1996 and one in 2002. There are very few members of the community who require any additional reason to not have sexual intercourse with an animal, and anyone who may be inclined to commit the crime is not likely to be deterred by the threat of imprisonment in any event.
Nor do I think there is much need for individual deterrence. The defendant has already been shamed and humiliated quite independently of any sentence I may impose. His father provides him with support, but, once news of these crimes spread, the defendant lost his job as a casual woodcutter, he has been left without the prospect of other employment, and he has been socially ostracised. Such social contacts and friends as he did have turned their back on him. His whole family is affected. His younger half-brother is harassed at school. Because he has nowhere else to go he is reduced to living an isolated existence in a dilapidated caravan in the yard of his father’s house. He has no access to washing, toileting and eating facilities of the house itself unless his step mother is absent. His father brings meals out to him. The opprobrium which his actions have generated may well last for the rest of his life.
One purpose of sentencing is to punish and condemn wrongdoing. The defendant’s actions were morally repugnant and deserving of condemnation. The animals suffered distress and required veterinary treatment for their injuries. The owner of one of the animals, which was a family pet cared for by her children, expressed her entirely understandable disgust at what occurred. Animal welfare is an important matter. The defendant acted despite the pain he must have inflicted to the animals although his motive was not cruelty. However, from a sentencing point of view, imprisonment would be an entirely disproportionate response. The offence of bestiality is not principally concerned with cruelty and the crime should be distinguished from offences against human beings. The 1992 case to which I referred earlier resulted in a short prison sentence, but on that occasion the defendant had offended twice before, had committed other offences involving indecency, and had just been released from prison for a very serious sexual offence against a vulnerable person. The perpetrator was a man with no chance of reform. Although the defendant has some prior convictions for dishonesty, drug related offending and a common assault committed almost five years ago, he has no prior convictions for sexual offending. He is a young man who has not been to prison before. He denied having ongoing sexual urges towards animals although Dr O’Donnell considers it likely that the acts themselves are indicative of a paraphilic disorder. It is sometimes said that crimes like this are an indicator of an increased risk of other problematic interpersonal sexual behaviours or violence. There is little indication of that here, but even if that were the case, it serves only to emphasise that the community interest is much better served by meeting what Dr O’Donnell refers to as the dire need of engagement with therapeutic services in the community. The defendant needs help to overcome the effects of the abuse to which he was subjected and the impairment of his sexual development it must have entailed, to target the factors which may lead to sexual offending and illicit substance abuse, and to find him stable and suitable accommodation and support concerning his intellectual disability. A community correction order requiring supervision in the community is the appropriate means of doing so. In my view, and consistent with Dr O’Donnell’s opinion, imprisonment would be particularly damaging for a young man in the defendant’s position. If the aim of sentence is to, as far as possible, protect the community by preventing this from happening again, then exposing the defendant to the further corrupting and damaging influence of prison would very likely have the opposite effect. I would have ordered community work as part of the sentence but because of the defendant’s living circumstances he is not presently suitable.
I express my thanks to the author of the pre-sentence report for a most helpful, comprehensive and timely report. The recommended period of supervision is 18 months but I think that it should be for two years.
Jacob Johnston, you are convicted on each count. I make a compensation order in favour of Nicole Maree Smith in the sum of $329.40. That sum is payable within 28 days. I also make a compensation order in favour of Stephen James Hemphill in a sum to be assessed. I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period five years from today. I make a community corrections order for a period of two years from today. The core conditions of that order will be specified in the order you will be given and include that you not commit an offence punishable by imprisonment, that you report to and comply with the directions of a probation officer, that you must not leave Tasmania without permission and that you must notify of any change of address. I impose special conditions that you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer, attend educational and other programs, undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use and submit to medical, psychological or psychiatric assessment, treatment, therapy or counselling as directed by the probation officer. If you breach any of those conditions you may be brought back to court and re-sentenced. It will be necessary for you to report to an officer of Community Corrections at 111-113 Cameron Street Launceston before 5.00 p.m. 27 October 2023.