STATE OF TASMANIA v TW 26 FEBRUARY 2021
COMMENTS ON PASSING SENTENCE WOOD J
The defendant has pleaded guilty to persistent sexual abuse of a child or young person contrary to s 125A of the Criminal Code. Until an amendment last year, this crime was known as maintaining a sexual relationship with a young person under the age of 17 years. The elements of the crime require a minimum of three unlawful sexual acts in relation to the young person.
The period of the crime is between 2007 and 28 December 2010. The complainant was 13 in 2007, and turned 14 in the last few days of December that year.
The defendant turned 18 in November 2006. He was known to the complainant and her family. She was in the Air Force Cadets and so was her older brother who was approximately 18 years of age. The defendant was friends with the older brother and he was also in the Cadets. The defendant frequently stayed at the complainant’s family home due to his friendship with her brother. The defendant had a romantic interest in the complainant’s older sister who was 16 years of age in 2007.
In mid-2007, the defendant stayed at the complainant’s home and slept on the couch in the lounge room. During the night, he entered the complainant’s bedroom and got into bed with her. He touched her breasts over her pyjama top. He pushed his mouth against the complainant’s mouth and kissed her. In doing these sexual acts, he committed an indecent assault. In view of her young age, lack of consent is not an element of the crime.
Approximately two weeks later, the defendant again stayed at the home. He again entered the complainant’s bedroom and got into her bed. He undressed her and touched her vagina and put her hand on his penis and had her masturbate him. This conduct is a second occasion of indecent assault.
This type of touching occurred every time the defendant stayed at the complainant’s house which was around once a fortnight. It happened more frequently towards the end of 2007.
In October 2007, the defendant was at the complainant’s house. There was a dispute between the complainant’s father and her mother’s new husband. The complainant was meant to be staying the night at her mother’s house, but as a result of the argument she stayed at her father’s house. The defendant consoled the complainant in her bedroom and kissed her. They discussed their relationship. They agreed to continue the relationship. The defendant told the complainant that it had to remain a secret. The defendant also spoke about his feelings for the complainant’s sister not being reciprocated.
Following this conversation, the complainant began surreptitiously leaving her bedroom at night when the defendant was staying at her house. She went to the lounge room where the defendant was sleeping and consensual sexual contact occurred.
In December 2007, before Christmas, the defendant was staying at the complainant’s house. The family watched a movie and then everyone went to bed. Later in the evening the complainant went out to the loungeroom. They had sexual intercourse for the first time. The defendant wore a condom. This amounts to the crime of penetrative sexual abuse of a child or young person contrary to s 124 of the Criminal Code. The elements of the crime are the young age of the complainant (under 17 years) and sexual intercourse. The complainant was 13 years of age, almost 14 and the defendant was 19 years of age. It is not an element of this offence that the young person did not consent.
The defendant had sexual intercourse with the complainant frequently after this. In the first six months after the first act of sexual intercourse, until mid-2008, sexual intercourse took place at the complainant’s house. Following that period, the complainant would stay with the defendant at his house. The relationship intensified physically at this stage. She would lie to her father and tell him she was staying with friends. In the year that followed the complainant became obsessed with the defendant. She recalls him often telling her how hurt he was that her sister did not return his feelings for her. The defendant ended the relationship on numerous occasions during that year. The break ups usually lasted about a week.
The defendant and the complainant often drank alcohol together at the defendant’s house. The defendant supplied the complainant with alcohol and the complainant became intoxicated on numerous occasions.
The complainant recalls a specific occasion which occurred during 2008 or 2009, when she was 14 or 15 years of age. The defendant put ice cubes against her vagina and she told him she did not like it and he removed them. The defendant had sexual intercourse with the complainant. While that was occurring, the defendant forced the ice cubes into her mouth. She tried to get them out but the defendant would not let her. The complainant believed that she was going to choke. She was able to get them out when they changed position. This amounts to a fourth specific occasion of sexual offending, the second specific occasion contrary to s 124 of the Criminal Code.
There was another occasion of sexual intercourse that she specifically recalls during 2008 or 2009.
In 2009, the complainant began to realise that the relationship she had with the defendant was not healthy. She felt uncomfortable that he would pursue sex with her when she did not want to engage in intercourse.
The sixth and final specific occasion of sexual offending occurred in 2010 when the complainant was 16 years old. The specifics of this occasion were that she and the complainant were having sexual intercourse at his house. The defendant caught his housemate watching them and the defendant told him to “fuck off” and the housemate left.
In 2010, the complainant told her father and others that she was in a relationship with the defendant. She did not tell people how long they had been in a relationship for. The complainant ended the relationship with the defendant in September in 2011 as she was unhappy in the relationship.
Approximately 8 years later in March 2019, the complainant sent the defendant a message via Facebook Messenger and they had a conversation which showed she was very troubled by their relationship and her age, and that she was only 13 and in grade 8 when sexual intercourse commenced. The defendant agreed that he could see that it “was not okay”, described himself as “uncomposed” and he had a lot going through his head. He offered to see her face to face if she was prepared to talk to him, saying he wanted her to feel okay again. She said she did not know how she would feel with face to face interaction and that “I can barely handle this”. She asked him why it happened. His explanation included that they cared about each other and “maybe I didn’t see your point of view so apparently.”.
The complainant reported the matter to police in July 2019. On 10 November 2019, he attended the Hobart Police Station and participated in an electronically recorded interview. He did not make admissions of any sexual contact and declined to comment to questions put to him in this regard.
I take into account that the defendant has pleaded guilty at the earliest possible opportunity. He has no prior convictions.
I have been provided with a victim impact statement. The complainant has been adversely and significantly affected by the sexual offending against her from age 13. She stopped attending school, her grades were affected, and so were her friendships and her future prospects. Her sense of self-worth has been diminished, she has engaged in self-harm. She struggles with intimate relationships and has feelings of trauma and shame. She says she has carried guilt, anxiety and shame for 13 years. The emotional effects are ongoing. She has panic attacks. Her sleep is affected and she regularly has nightmares about the abuse. She has needed time off work, and the court proceedings have caused her to relive the trauma of 13 years ago which she has tried to suppress.
The defendant is now 32 years of age. He was a good student and went to study at University but struggled in that environment. He struggled to make friends and depression seems to have taken hold. He left University and took up a traineeship which has led to employment in the IT sector.
He became involved with the complainant’s family initially because of his friendship with the complainant’s brother. He was attracted to her sister but rejected. He became friends with the complainant as a consequence of time spent in her family home. She consoled him in relation to the rejection by her older sister. He had not intended for that friendship to develop into a relationship.
Defence counsel points out that because the age difference was 5 years and one month, by the time the complainant was 15 years of age, if not for one month, sexual intercourse would not have been unlawful. I will bear that in mind when considering the sexual offending, especially once the complainant was 15. In relation to the sexual crimes which commenced before then when she was only 13, they fall into a different category. She was only a child and the notion of sexual relations with the complainant at that age when the defendant was 18 is reprehensible. It must be faced that this crime captures serious sexual abuse. Their age difference at that time, and the difference in their maturity is substantial.
Still, I accept that he was a youthful offender for the period of the charge. In assessing the nature and the gravity of the crime and his moral culpability, I take into account that what he did was done as a person of immature years. Accordingly, it is less grave than as a mature adult. His rehabilitation also has greater prominence.
I accept too that there was progression in the relationship and that this was not planned. This is not a case where the defendant was grooming the complainant. Further, I take into account that the relationship grew out of mutual affection. Also, that the defendant himself was sexually inexperienced, unsophisticated in the situation rather than prevailing upon the complainant in a knowing and predatory way. His supplying her with alcohol is an aggravating factor, but I do note that this was not done to overcome her resistance or to loosen her inhibitions. There were attempts by him at times to end the relationship but then it recommenced. There was mutual affection. By 2008-2009, their relationship was in the open.
I also take into account the defendant’s conduct as a more mature adult when confronted with the text messages and information about the harm he had caused the complainant. He expressed genuine concern for her welfare in his text messages. He was affected by those messages and went to his General Practitioner to obtain help, and was referred to a clinical psychologist, Mr Peter Nelson. Mr Nelson has seen the defendant on at least seven occasions since August last year.
I have read Mr Nelson’s report dated 6 December 2020. The defendant has been assessed and his results were consistent with his reports of depression. He showed elevated signs of symptoms such as malaise and suicidal ideation.
As for his condition at the time of commencement of his offending, Mr Nelson points out that he was disengaged from his peer group at University and was not coping with that environment. He reported feeling significantly depressed and had strong suicidal ideation around that time. In Mr Nelson’s opinion the defendant was suffering from depression at the time of commencement of his offending. Aspects of his depression included self-loathing and low self-esteem as well as hopelessness. In his opinion, it is likely that that this view of himself led to poor decision-making with regard to relationships. He described the defendant as then sexually naïve.
The defendant noted the defendant expressed appropriate remorse and that his prospects of rehabilitation appear quite sound. Mr Nelson is to continue to see the defendant approximately every fortnight, then over the next two years the appointments will reduce to monthly.
In Mr Nelson’s opinion, the defendant would not cope well in prison. It is likely to reinforce his self-loathing and feelings of hopelessness and increase his suicidal ideation.
I have two reports from Community Corrections. In the first, the defendant describes still having feelings for the complainant in the sense of care and concern. He accepts that the complainant’s welfare is all important and he accepts and understands that the law is there to protect young people. The report also demonstrates that psychological counselling would likely be of benefit, bringing further clarity about his offending and the harm it has caused the complainant. The defendant is assessed by Community Corrections as being a low risk for future sexual offending.
Home detention is not a feasible option in this case, not because of any fault on the defendant’s part but, rather because of technical problems preventing a reliable signal from an electronic monitoring device given the location of the defendant’s home. The defendant is suitable for community service, a community correction order and supervised probation. He would benefit from intervention targeted to address his specific needs and structured relationship support.
The seriousness of this crime, particularly the sexual abuse when the complainant was only 13 and 14 must be reflected in the sentence, as well as the long term harm it has caused her.
Your personal circumstances, including your age, immaturity and mental health must also be reflected in the sentence. I accept that you are genuinely remorseful, and this is a positive factor in terms of rehabilitation. I accept you are unlikely to reoffend and that you will comply with court orders to promote your chances of reform.
The appropriate sentence is a suspended term of imprisonment for a period of two years with strict conditions.
I record a conviction. I impose two years’ imprisonment which is wholly suspended. It is suspended for two years on the following strict conditions: You must not commit an offence which could attract a term of imprisonment for that period of two years from today and you must comply with all the core conditions of a community correction order as stipulated in the Sentencing Act for the same operational period of two years. These include that:
- You must report to the Hobart Community Corrections Office within 48 hours (two working days);
- You must report and comply with the directions of a probation officer;
- You must not leave Tasmania without permission;
- You must notify your probation officer of any change of address.
Further, you must complete 98 hours of community service within 12 months from today.
In addition, you must submit to the supervision of a probation officer as required by the probation officer for 18 months. You must during that 18 month period attend educational and other programs as directed by a probation officer. For the same period you must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
Having regard to the fact that the defendant’s risk of committing a reportable offence is considered low, I make an order under the Community Protection Offender Reporting Act for a period of 2 years from today.