STATE OF TASMANIA v AC 4 JUNE 2025
COMMENTS ON PASSING SENTENCE BRETT J
Mr C, you have been found guilty by a jury of one count of rape and one count of committing an indecent act with a child. Both crimes were committed by you against your cousin, M.
It is my task to make findings of fact for the purpose of assessing and imposing sentence. I must only take into account facts which are adverse to you if I am satisfied of those facts beyond reasonable doubt, and my findings must be consistent with the jury’s verdict. It is clear that the jury believed M and accepted her version of the offences as substantially reliable. I also take that view. I note that you gave evidence denying any wrongdoing. It is clear also that the jury must have rejected this evidence.
The crimes were committed when M was aged five. She was not able to be more specific than that with respect to timing. You were born on 1 May 2006 so you were at least 16 when you committed these crimes. Your mother and M’s father are siblings and your families were close and spent a lot of time together. It was common for you to babysit M and her older brothers. Both crimes were committed during the same episode, while you were babysitting them. According to M’s description, you had all been at your grandparent’s house which was close to her home. M’s parents were going out, and it had been arranged that you would take M and her brothers’ home and care for them until her parents returned. At a time when you were alone with her in her bedroom, you suggested a game which required her to tickle various parts of your body with the aim of finding an area on the body which you referred to as your tickle spot. This was a term which you had introduced to M sometime before as a way of referring to sensitive or private parts of the body. It was regularly used for innocent purposes as part of family discourse. On this occasion, though, your intention was to use this game to coax her into touching your penis. In her interview with police, M demonstrated using her hand in a motion which I am satisfied conveys the act of her stroking your penis, which I have no doubt was erect at the time. You then enticed her to permit you to touch her body by promising her that she would be allowed to watch YouTube on your phone in exchange. You then inserted your finger into her vagina. She recalls that this hurt and blamed the pain on your fingernail. The jury quite correctly concluded that it was beyond reasonable doubt that you had penetrated her vagina with your finger, thereby committing the crime of rape. It was not suggested by you at trial that M had consented to the penetration of her vagina, and in any event any apparent agreement you may have obtained from her could not be considered to amount to lawful consent. It was accepted, and I am satisfied in any event, as the jury must have been, that M was not old enough to have the capacity to understand the nature of the acts which you perpetrated upon her.
I accept also that you told M not to tell anyone because you would get into trouble. It is clear that she did keep your conduct to herself for a period of time, until it came out in an unguarded moment during a family discussion.
I am satisfied that these crimes were not committed in isolation. Although M was not specific about times and occasions, her evidence was quite clear that conduct of this nature had occurred at other times. I am satisfied that this is so.
I regard your crimes as extremely serious, and your moral culpability for them is very high. I must, of course, take into account your young age at the time you committed the crimes, but I have no doubt that you knew and fully appreciated that what you were doing was very wrong. Apart from anything else, this is demonstrated by your warning to M not to tell anyone because you would get into trouble. I am also satisfied that you knew and appreciated the full extent of the breach of trust inherent in the commission of these crimes. You would have been well aware that M trusted you as her older cousin to look after her and that you were breaching that trust by doing this to her. She was very vulnerable because of her age and her trust in you. You also knew that you were trusted by M parents and your parents to care properly for her. The breach of trust is a significant aggravating factor.
The consequences of your crimes have been devastating. The impact statement describes the very significant effect on M and her family as a result of what you did. While I exercise appropriate caution, because very understandably the impact statement refers to all of your alleged conduct beyond that established by the jury’s verdict, the impact so described is entirely consistent with what would reasonably be expected to flow from abuse of the type encompassed in the crimes of which you have been found guilty. Further, M is still very young, and it is impossible to know how the effect of this abuse will play out in her future life. The courts are now well aware that child sexual abuse can have serious long-term and often lifelong consequences on the victim. She will not be protected from these consequences because of her young age at the time the crimes were committed. In my view, her age at the time of commission of those crimes is far more likely to enhance the adverse impact on her as time goes by.
In respect of your personal circumstances, you have no prior convictions whatsoever. You have had a good upbringing in a family which has emphasised positive values. You have been successful in study and extracurricular activities such as sport. You are on the cusp of a successful and bright future, although that potential has been terribly marred by the wrong you have perpetrated against your young cousin.
In formulating sentence, I must, of course, take into account your age, both at the time you perpetrated these acts and now. There is no question that your rehabilitation is an important sentencing factor, but this must be balanced against the objective seriousness of the crimes and the need to make it clear to all persons, including those of compatible age, that the commission of sexual crimes against other young people and children will not be tolerated and the consequences will be severe. This is necessary for the protection of children and young people. I think in this case there is also a need for specific deterrence. Your crimes did not take place as a response to deficiencies and problems in your childhood or surrounding circumstances. Your conduct was deliberate and contrived, and as I have said this was not an isolated example. You have not shown any insight or remorse. You are not entitled to the benefit of a plea of guilty.
Given your age at the time that you committed these crimes, you will be sentenced under the Youth Justice Act. In my view, the only appropriate sentence is detention. As the Act requires, before imposing such a sentence, I must consider all other available sentences and be satisfied that no other sentence is appropriate in the circumstances of the case. The pre-sentence report recommends a suspended detention order and your counsel has suggested a number of other non-custodial sentencing options under the Sentencing Act . However, I do not consider that such sentences are appropriate, given the serious nature of this offending, your moral culpability for it, its impact on M and the need to place emphasis on general and specific deterrence. Actual detention will hopefully drive home to you just how serious and wrong this conduct was and provide a real opportunity for work to be done with you to address the psychological and developmental deficiencies which must have led you to act in this way. I am well aware that you may serve the period of actual detention in an adult prison, but in the circumstances, I do not think that any other sentence is warranted. The obligations imposed on the Secretary by the relevant legislation to address your rehabilitation will, it is hoped, be adequately met wherever you are detained.
AC, you are convicted of the crimes of which you have been found guilty and sentenced to detention for a period of 2 years. I note that this is the maximum sentence permitted under the Youth Justice Act. The sentence will commence immediately. I specify the earliest release date as the date which is the day immediately following the completion of one half of that period, that is 5 June 2026.
I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. Given your age at the time you committed the crimes, the maximum reporting period is 7 years and 6 months. In the circumstances, I am satisfied that a lesser period is appropriate. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of three years, to commence on your release from custody.