STATE OF TASMANIA v A D S N 20 OCTOBER 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr N, you have pleaded guilty to charges of indecent dealing with a young person, and two charges of penetrative sexual abuse of that young person. The offending occurred in 2020. At the time of your offending, the complainant was aged 16 years. She was living with family friends and attending college in year 11. In March of that year she travelled to see her grandparents. You were also in that area at that time, staying with family. She arranged to meet friends whilst she was there. The complainant and her friendship group decided to buy some alcohol. One of her friends volunteered to purchase that alcohol for them as they were all under the age of 18. You were given the money and you purchased whiskey. It was consumed in a public park. You were also drinking with the group. Initially the complainant was drinking whiskey with a soft drink mixer, but later she began drinking it neat.
You sat next to her. Despite her indicating that your advances were not welcome, you told her she was cute. You began touching her on the shoulder and on her upper thigh. When you attempted to touch her near her vagina, on the outside of her clothing, she pushed your hand away. She did this a number of times. Her next recollection is lying on the grass, you on top of her, trying to kiss her. She recalls being really drunk. She told you she wanted to go home, and you said you would take her. You left the park together. On the way, you purchased alcoholic drinks. You opened hers because she was not able to do so. She drank some of it. You took her to where you were staying.
Once inside the house, she recalls being sick, and then being in your bedroom where she collapsed on your bed. Whilst she was on the bed, you put your mouth on her vagina. This is the first count. You then put your penis in her mouth and one of your fingers inside her vagina. This is count 2. This was followed by sexual intercourse, the third matter on the indictment. During that act she felt pain to her left collarbone and she tried to push you off. You placed both her hands above her head and held them in that position and continued. You ejaculated into your hands and you wiped some of it onto her face.
The complainant recalls her friend coming into the room the next morning and telling her that she was naked, and that she needed to get out. She fell asleep again. When she woke up the second time, another person was in the room. She got up, collected her clothes from the floor, and went home. There she vomited again, went to bed and fell asleep.
On 12 March she attended at the police station to report the matter. Later that day you voluntarily attended the station and spoke with police. You participated in an interview. Amongst other things you indicated that you had been drinking alcohol, that you had purchased alcohol for the complainant, and you told police you thought she was 17, not 16. You said that she asked you if you wanted to have sex with her, that you went back to your house, that you disrobed, that you both kissed, you had sex and passed out. You told police that you had not ejaculated inside her. You said the complainant was conscious and willing, and that she was affected by alcohol, but not so drunk as to require assistance to walk.
When asked about the legality of an adult having sex with a person under the age of 17, you acknowledged that it was an offence, and when asked what led you to believe the complainant was 17 years old, you said you thought they were all 17 – a reference to the group she was with – and that you were pretty sure that she told you that.
You participated in a second interview about three hours later. Again you said that you thought the complainant was the same age as all of them, but obviously not 18 because she had not been able to buy the alcohol. You acknowledged that you had not seen anything to confirm her age. You apologised for your actions, and described them as “fucking stupidity”.
I have received a report in respect of your psychiatric health from Dr Evenhuis. I have regard to its contents generally. Amongst other things it reveals a history of significant alcohol consumption beginning when you were aged 14 and involving periods of alcohol dependency. Whilst you were using some illegal drugs around the time of your offending, at the time of the offence you had not consumed drugs, you had only consumed alcohol. You maintained to Dr Evenhuis your belief that the complainant was 17, but conceded that it was your responsibility to ensure that consent was given and could lawfully be given. It is opined that alcohol consumption is likely to have affected your judgment at this time, and I accept that as in part contributing to your behaviour. It does not mitigate the seriousness of it.
Relevantly, Dr Evenhuis concludes that you do not have a sexual interest in children. In that respect this complainant was less than three months away from the age of consent, so I do not think the crime was indicative of such interest. As Dr Evenhuis notes, given your lifestyle and the fact that you are frequently under the influence of substances, if you did have such an interest, it is likely that it would have come to light before now. There is in fact no suggestion of that, and you appear before me without prior convictions.
Your family circumstances are generally supportive, though I note there is tension with one half-sibling in consequence of these charges. I take account of personal history, including your work history. Most relevant, in my view, is the reflection which you have undertaken since this offending occurred, and your acknowledgement that you should not have had sex with the complainant, and that even if she was willing in that regard, you should have said “no”. You acknowledge that the episode would have caused her shame.
This conduct should cause you to reflect upon your excessive alcohol consumption as something that requires your urgent attention. In that respect I accept the recommendation contained in the reports that you should submit to alcohol and drug treatment of some sort.
The sentence I impose must deter you and others from similar behaviour. It must reflect the obligation imposed in the Court to prevent behaviours such as these and protect young people from them. I have read the contents of the victim impact statement. Whilst an absence of consent is not an element of the crimes alleged, that should not lead you to underestimate the harm you have caused your victim. She was drunk, young and vulnerable. The penalty I impose must vindicate her. I acknowledge that by your plea of guilty she has been spared the need to give evidence, and you are entitled to credit for that.
You were committed on a different, more serious charge. The characterisation of the plea as early, or not, should take account of the fact that there was a significant change in the crime alleged and be measured from the point of that change. Your plea was an early one and I discount the penalty I would otherwise have imposed by 20% in recognition of that. I take account that none of the aggravating circumstances identified in s 11A of the Sentencing Act appear. This is an unusual case and a difficult sentencing exercise. Plainly it was a grave error of judgment by someone who has not previously transgressed in this way. There is no suggestion your previous good character has assisted you to commit this offence, and there was nothing to suggest that this action was not consensual. I cannot say you took advantage of your victim, because it is not put to me that that was so, and if she was incapable of consenting, the charge would reflect that, but it does not. The sentencing must nevertheless serve multiple considerations. Deterring others is critical. Recognising the victim is important, because, despite the conduct being consensual, the complainant is, in the eyes of the law, a victim of your conduct.
In my view the proper response to this offending is a term of imprisonment. I convict you and I impose a sentence of six months’ imprisonment on the indictment. The question is, should I suspend all or part of that penalty? There is an indication in the report that you have developed an insight into your offending. That is important as it is essential to your rehabilitation. You have also indicated a desire to deal with your alcohol consumption. I have determined that I should encourage your rehabilitation and determined that a suspension of the sentence will do that without derogating from its capacity to serve the relevant sentencing considerations. In my view, suspending the operation of the term of the imprisonment that I have imposed properly balances competing considerations. Suspension of the sentence is on condition that you commit no offence punishable by a term of imprisonment for a period of three years. I make a community based supervision order for a 12-month period, and in addition to the core conditions include a condition that you must attend, participate in and complete, the EQUIPS Addiction Program, and any other programs as directed by your probation officer.
Finally, these are reportable offences falling within Class 2, but in the circumstances of this case, and having regard to Dr Evenhuis’ assessment of you, I have determined that I do not need to place your name on the register, and I do not do so.