STATE OF TASMANIA v KERRY LEIGH LARGE WOOD J
COMMENTS ON PASSING SENTENCE 13 AUGUST 2019
Kerry Leigh Large has pleaded guilty to one count of indecent assault. He has also pleaded guilty to three summary offences, two charges of fail to comply with a community protection order contrary to s 33A of the Community Protection (Offender Reporting) Act and one charge of supply alcohol to a youth contrary to s 26 of the Police Offences Act.
On 19 January 2018, the Magistrates Court made an order under s 10A of the Community Protection (Offender Reporting) Act in relation to the defendant. One of the conditions was that he was not to be in the company of a child, defined as a person under the age of 17 years.
Mr Large was friends with a youth, the complainant, who was 15 years of age. It was a friendship that was long-standing. The defendant had known the complainant since he was 6 years of age when the defendant had been introduced to his family.
The complainant normally lives with his family but, at the relevant time in December 2018, he was working for a family friend, Mr T and staying with him. The complainant, his family and Mr T did not know about the order. On about 16 December, Mr T took the complainant to the defendant’s unit for a visit. Mr T stayed for a short period and then left the complainant with the defendant. The complainant was alone in the company of the defendant for about an hour and a half. The defendant gave the complainant a sound speaker as a Christmas present.
A few days later, the defendant contacted the complainant and invited him over for a drink, indicating that he was moving interstate, and wanted to see the complainant before he left. He also sent a text message to the complainant stating, “I will continue to live in Tasmania if you move in with me”.
They arranged to meet on 22 December 2018. The defendant made a reservation for them to have dinner at a hotel. Mr T gave the complainant a lift to the defendant’s residence, with the intention of collecting him after dinner. The complainant went with the defendant inside his residence and was there alone with him. The defendant supplied him with alcohol, approximately six drinks, one of them a can of Bourbon and Cola. They did not go to the hotel for dinner. At about 8pm, the complainant contacted Mr T and asked if he could stay the night with the defendant. It was agreed that he could, but Mr T informed him that he would keep his phone on in case the complainant needed to be collected.
The defendant and the complainant walked to a nearby hotel to purchase more alcohol. On the way, the defendant grabbed the complainant’s buttocks over the top of his jeans.
At the hotel they selected two packs of pre-mix alcoholic drinks of bourbon and vodka, 8 cans in total, which the defendant paid for. They returned to the defendant’s residence and consumed more alcohol. A while later they walked again to the hotel so the defendant could purchase more alcohol. He again grabbed the complainant’s buttocks in the same way. After the defendant purchased more alcohol they returned to the defendant’s residence by taxi.
By the time they returned to the defendant’s residence, the complainant was intoxicated. While he was sitting with the defendant in the lounge room, the defendant without warning, kissed him with a closed mouth on the complainant’s mouth and neck. The complainant did not reciprocate. The complainant went to the bathroom and telephoned Mr T and asked him to collect him. He then told the defendant that he needed to leave as he missed Mr T, which was an excuse to leave. The defendant was upset and went with the complainant while he waited outside for Mr T. The defendant asked the complainant to delete his phone number from his phone.
When the complainant was alone with Mr T, he became distressed and disclosed what the defendant had done.
Later that evening, the complainant received a text message from the defendant which said, “I put everything on hold for you”. On 23 December, the complainant reported the matter and provided a statement to police.
The defendant’s conduct in grabbing the complainant’s buttocks on two occasions and kissing him on the mouth and neck amounts to indecent assault. By being in the complainant’s company on the 16 December and 22 December, he committed two offences of fail to comply with a community protection order. As mentioned, he supplied the 15 year old complainant with alcohol.
On 24 December, he was interviewed, stating that he believed he had complied with the community protection order because he was not left alone with the complainant, and that the complainant had not been inside his residence. He denied any inappropriate contact and denied supplying him with alcohol.
The defendant has prior convictions of relevance, indecent assault and aggravated sexual assault in 2001 involving two young complainants, and indecent assault in 2002 involving an 8 year old complainant. He was sentenced to seven and a half years’ imprisonment for three charges of rape and indecent assault in 2007 involving three young complainants. He was convicted and sentenced in 2013 for two charges of possession of child exploitation material and one charge of possession of child exploitation material in 2017. In June 2018, he committed an offence of fail to comply with a community protection order. He was sentenced on 27 November 2018 to 2 months’ imprisonment wholly suspended for two years. The specifics of that offence were that he breached a condition of the order that he was not to have possession of a mobile phone which provided access to the Internet. He was convicted in July this year of possess child exploitation material committed in June 2018, and received a 15 month term of imprisonment commencing 24 December 2018.
Fortunately, in this instance, the indecent assaults (captured in one count) did not escalate beyond grabbing over clothing and kissing the complainant. The conduct is aggravated by the fact that the defendant was trusted by the complainant, by the complainant’s youth, and the vulnerability of the complainant due to his consumption of alcohol provided by the defendant. Grooming is evident, as well as some emotional manipulation. The crime of indecent assault is also aggravated by the fact that he arranged to be alone with the complainant knowing he represented a risk to him. The paramount sentencing consideration is specific deterrence in order to protect the public. There is a need also for general deterrence, and I accept that, as Ms Wilson has stated, the defendant’s future reform prospects must be viewed with caution.
Noting that these offences breach the suspended sentence imposed in November last year, the Crown seeks that the two month term be activated. The current community protection order has him placed on the register until February 2050.
In fixing the sentence, I take into account that he is presently serving a sentence of imprisonment, noting a non-parole order was not made, he will be incarcerated until at least 23 December this year.
The defendant is 43 years of age. I take into account that he has pleaded guilty, sparing the complainant the stress of having to give evidence.
The defendant has been diagnosed as a paedophile. He was sexually assaulted as a child. He has undertaken rehabilitation programs in prison in the past and has sought psychological assistance. He had commenced engagement in cognitive behavioural therapy while in the community, which was disrupted by his remand in custody. A further consequence of his incarceration was that he has lost his private accommodation, which had been difficult for him to obtain. While imprisoned, he is kept in protective custody, but remains fearful of being the victim of violence. He has commenced the EQUIPS addiction program and is seeking enrolment in the Sex Offenders Program and is hoping to receive one-on-one sessions in order to maximise his chances of benefitting from the program.
For the crime of indecent assault, I regard a sentence of 16 months’ imprisonment as appropriate. Additional sentences are required for the summary offences. In relation to the summary offences, I note that for the offence of failing to comply with a community protection order, the maximum penalty is 6 months’ imprisonment. For the offence of supplying alcohol to a youth, the maximum penalty is 12 months. There is some overlap with the indecent assault and two of the summary offences; the offending broadly coincides and aspects of the summary offences are aggravating factors associated with the indecent assault.
To reflect this overlap and to ensure that the overall sentence is not disproportionate to the criminality of his offending, I will make orders allowing that the sentences imposed for the summary offences will operate in part concurrently.
I record convictions in relation to all the offences. I impose 16 months’ imprisonment for the crime of indecent assault.
I impose a sentence of 4 months’ imprisonment for the first offence of failing to comply with a community protection order. Three months of that term is to be served cumulatively.
I impose a sentence of six months’ imprisonment for the second offence of failing to comply with a community protection order, five months of that is to be served cumulatively.
I impose a sentence of four months’ imprisonment for supply of alcohol to a youth, two months is to be served cumulatively.
It would not be unjust to activate the suspended sentence of two months’ imprisonment. This activated sentence of two months is to be served cumulatively.
The sentence totals two years and four months’ imprisonment (28 months) and this is to be served cumulatively to your current sentence. Noting the length of your current sentence of imprisonment, with no provision made for parole, and that your reform should be encouraged, I will allow eligibility to apply for parole after serving 16 months of the total sentence I have imposed today.
I make an order pursuant to the Community Protection (Offender Reporting) Act, although your name is already on the register for a very lengthy period. I determine that you must comply with the reporting obligations for a period of seven years cumulative to the periods which you are already subject to.
[*NOTE: On 29 October 2019, pursuant s 94(2)(a) of the Sentencing Act 1997, Wood J varied the sentence imposed on 13 August 2019.
For the crime of indecent assault, 16 months’ imprisonment cumulative to the sentence imposed on 2 July 2019 in the Magistrates Court of Tasmania, with a non-parole period of nine months.
For the first offence of Failing to comply with a community protection order, four months’ imprisonment, three months to be served cumulatively with the above sentence of 16 months (one month to be served concurrently with the above sentence of 16 months), with a non-parole period of three months.
For the second offence of Failing to comply with a community protection order, six months’ imprisonment, five months to be served cumulatively with the above sentence of four months (one month to be served concurrently with the above sentence of four months), with a non-parole period of four months.
For the offence of supply of liquor to youths, four months’ imprisonment with two months to be serve cumulatively with the above sentence of six months (two months to be served concurrently with the above sentence of six months), with a non-parole period of two months.
The suspended sentence of two months’ imprisonment imposed on 27 November 2018 is activated, this term is to be served cumulatively to the above sentence of four months for the offence of supply of liquor to youths, with no eligibility for parole.
The total term of imprisonment taking into account periods of concurrency is 28 months. The total non-parole period taking into account periods of concurrency is 16 months.]