STATE OF TASMANIA v SGL 9 JUNE 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr L, the defendant, has pleaded guilty to one count of indecent assault and one count of rape. He has also been found guilty by a jury of a further count of rape and one of attempted rape. All crimes were committed within a relative short period of time on 25 November 2020. I note that he was acquitted on three related counts of rape. There is a dispute about the facts in relation to the counts to which he has pleaded guilty, and I need to determine the facts of the matters of which he was found guilty by the jury. The defendant gave evidence in the trial. He was 59 years old at the time of the offences, the complainant, MI, was 21. They were well known to each other. The defendant had been in a relationship with the complainant’s mother from when the complainant was about 9 years old until she was about 15 or 16. There was no regular contact after the relationship ended, although the two kept in touch through social media until about 2017 when the complainant moved from the south of the State to live in a town near Launceston.
The defendant and MI developed a friendship seeing each other reasonably regularly. MI regarded the defendant as a father figure. There is some evidence of light-hearted comments made by the defendant during this time that might suggest a sexual interest. I accept the complainant’s evidence that she made it clear to the defendant that nothing romantic would happen between them. I am also satisfied that about two weeks before the incident the defendant grabbed hold of her hips from behind while she was sitting and he standing, and that she told him it made her feel uncomfortable.
At the time of the incident, the complainant was living alone in a unit. The defendant stayed the night before the incident because of pesticide use in his own home. He slept on the couch. The next morning the two went out for a while before returning, and at about 11.30am the complainant went into her room for a nap. She told the defendant that is was alright for him to stay. The complainant got under the doona on her bed fully clothed. While she was laying facing the wall, the defendant came into the room and started to touch her. This is the subject of the first count on the indictment; indecent assault, to which he has pleaded guilty.
As to what occurred, the defendant says that when he went in, the complainant had her t-shirt pulled up with her breasts exposed and he touched her there. This went on for “no more than 15 seconds or so” he said, and then he left the room. I prefer the complainant’s evidence that he first touched her by rubbing her breasts, vaginal area and her bottom over her clothes, and then proceeded to touch her breasts under the top, tried to put his hand down the front of her jeans but could not, so he reached down from behind, grabbing her bottom and then touching her vagina. During this time the complainant was “frozen” as she put it, and could not move. I accept that the defendant was whispering things like “babe” and “baby” to her. The jury was not satisfied that a crime of rape by digital penetration then occurred after the indecent assault. The complainant said the defendant left the room but returned twice after relatively short interludes during which she could hear him in the unit.
On the second occasion it was alleged that there was a further rape by digital penetration, while the remainder of the allegations related to the third alleged visit. The defendant was acquitted of the count of rape that related to the second visit of the alleged three. It is consistent with the jury’s verdicts that they were satisfied of only two visits to the bedroom and I think it is appropriate that I proceed on that basis.
The admitted or proven conduct that followed the first visit consisted of an admitted rape constituted by the penetration of MI’s vagina by the defendant’s finger and then tongue, a further count of rape involving similar acts of penetration but of her anus, committed after the admitted conduct, and an attempt to have vaginal intercourse which involved him pushing his penis into and around her vaginal area without achieving penetration. I am satisfied that he ejaculated. After this he left the room but remained in the unit. Before the admitted rape, the defendant had undone the belt buckle on the complainant’s jeans, pulled up her shirt and then unzipped her jeans and removed them along with her underwear. During this the complainant attempted to position herself from time to time to avoid contact but was unsuccessful. At one point he turned her over to gain better access. Otherwise the complainant generally remained inert and said nothing.
After the defendant left the bedroom, the complainant contacted two friends on her phone. She had previously tried to use her phone during an interlude but it had fallen down beside the bed. The complainant dressed herself left the bedroom and concocted a story why she needed to immediately leave. As she was outside preparing to leave, the defendant came up to her and told her that he was sorry. After leaving the house, the complainant immediately went to the home of her grandfather. She was experiencing pain in her vagina which affected her ability to sit. She stayed there for the rest of that day and that night, and police were called the next day. In the meantime, the complainant sent a text message to the defendant saying, among other things, that she was unsure they could be mates due to him overstepping the line. He responded “I understand and can’t apologise enough. I was the one that crossed a line and I don’t know what to say or do.” The complainant received a further message from the defendant saying that he was sorry for ruining the friendship and breaking her trust.
In MI’s victim impact statement, she says that she confirms that the defendant was like a father figure to her and someone she had trusted the most since childhood. She explains that the need for her to rest during the day on which the incident happened was because of stressful events the day before. The defendant had taken her to the vet to see a veterinarian with her sick pet bird, but the bird died on the way. Later that day she received the news that her step-father had died and so, on the day in question, she was emotionally distraught and physically drained. She feels like the defendant took advantage of her while she was in that weakened state.
As a result of a sexual assault on her much earlier in her life, the complainant struggled to trust people and confined in the defendant about the earlier assault and the effects on her. Following the present incident, she says she became closed off and paranoid and suffered panic attacks and nightmares. She had to take some time off work and obtained sexual assault counselling. After going back to work she still struggled emotionally. She has had difficulty with her employment and struggles with depression and anxiety attacks. She says she has taken to drinking to self-medicate. She has felt suicidal at times. Through all of this she formed a relationship and married but the relationship with her husband is strained because of her hesitancies about sexual activity. She feels the damage inflicted has forever altered who she is, how she feels about herself, her ability to trust other people and her right to enjoy a happy sexual relationship with her husband.
The defendant is now 61. He has no relevant prior convictions; his only recorded offending history consists of traffic matters, and there has been nothing of any real seriousness in that respect since 1991. The defendant was born and raised on the West-Coast and worked in the mining industry for some 13 years, before moving away from the area. He has six children aged between 16 and 40 but is currently single. He is in receipt of a disability support pension. He suffers from emphysema and has a chronic obstructive pulmonary disease, and I take into account his ill-health. He held full time employment until those health conditions intervened to prevent him from working. I think it is appropriate to take into account, as I was asked to, evidence of his immediate remorse. There may be some aspect of a desire to facilitate the course of justice by pleading guilty to two counts but that was done on the day the trail commenced. The facts were in dispute and there had to be a trial on the remaining counts. I have a letter of support from his older brother. That speaks of a time when the defendant was present when their father and another brother was killed on a fishing trip in 1976, something which has tormented the defendant all his life. The brother speaks of the defendant as a caring person having been helping the brother’s wife recently with a serious mental health issue. I take those matters into account as well.
Before 2017, digital and other acts of penetration other than by a penis amounted to the crime of aggravated sexual assault. The obvious intention of the amendment was to make the crime of rape inclusive of all forms of non-consensual penetrative acts and “equally serious” in generic terms. And so, such acts of penetration without consent as a form of bodily invasion are serious matters. A victim is violently deprived of their bodily integrity. Further, an attempt to commit rape has the additional factor that it involves an intention to penetrate without consent or recklessness. In this case, I am satisfied of actual knowledge of a lack of consent but in any event, the very high degree of recklessness renders the distinction of no real consequence. This was a grave abuse of trust placed in the defendant by the complainant. Because of their connection in her developing years, and their later friendship, she treated him as a father figure and had a close connection. He was aware of her particular vulnerability on the day in question. She was also vulnerable generally because of earlier abuse, something that was known to this defendant. The betrayal and the nature of abuse have had a serious effect on her. Emphasis needs to be placed on the need to deter others from such behaviour and to condemn such conduct. For the purposes of sentencing I will treat the offending as effectively constituting one incident, although noting the short break in time during which MI was fearful and trying to contact someone for help.
Mr L, I have set out the facts and the relevant considerations including your personal circumstances. As I have outlined, you betrayed the complainant’s trust in her own home which she had made available to you. You violated her and attempted to violate her in several ways. That has caused her much harm. A lengthy term of imprisonment is called for. You are convicted of the crimes and sentenced to four years’ imprisonment to commence on 25 May 2023. I order that you not be eligible until you have served one half of that period. I must make an order under the Community Protection (Offender Reporting) Act unless I am satisfied that you do not pose a risk in terms of committing further sexual offences. In your case, I cannot be satisfied that there is no risk but I do not think such risk as there is amounts to a substantial one. I order that your name be placed on the register and that you comply with the reporting obligations under that Act for 12 months following your release.