AN

STATE OF TASMANIA v AN                                                                  4 SEPTEMBER 2023

COMMENTS ON PASSING SENTENCE                                                                PEARCE J

 

AN, you plead guilty to two counts of persistent sexual abuse of a young person. The crimes were committed during the period of about six months between 1 November 2021 and the end of April 2022. To protect the identity of the victims I will refer to others by use of initials. At the time you were living with your partner CS. During that period CS’s daughter J and your own daughter D also lived with you, at least for some of the time. Those two girls were the victims of your crimes. At the time, J was 8 and D was 9. You took the opportunity to offend against them when your partner was either absent or presumably otherwise occupied or asleep.

 

The crime of persistent sexual abuse of a young person is committed when a person commits unlawful sexual acts against a young person on at least three separate occasions within the relevant period. In the case of J, seven occasions were identified:

 

• the first occasion occurred while sitting with her on the couch. You touched her on her genitals outside her underwear. That was an indecent assault;
• the second occasion was in her bedroom. You exposed your penis and rubbed it on the outside of her underpants. That was an indecent assault;
• on the third occasion you told her to get on the bottom bunk in her bedroom. You licked her between her legs on the outside of her underwear. That was an indecent assault;
• the fourth occasion occurred on the couch in the lounge room. You rubbed her genitals with a vibrator on the outside of her underwear. That was an indecent assault;
• on the fifth occasion you entered her room and used a vibrator to rub her genitals over her underpants. That was an indecent assault;
• on the sixth occasion J and D were together in a bedroom. You pressed a vibrator against the genitals of both girls in turn, but over their underpants. That was an indecent assault;
• on the final identified occasion you had J suck your penis. That constituted the crime of rape.

 

D remembered occasions on which she and J were together which J did not recall. All but one of the occasions concerning D and the details of them are identified as forming part of the crime against her but not for J, although they are relevant to the context of the crime against J. For D there were six identified occasions:

 

• on the first occasion she and D were asked by you to take their tops off and get into your bed. You touched both D and J directly on their genitals and touched J with a vibrator. As to D that amounted to an indecent assault;
• on the same occasion you had J suck your penis you had D do the same. That constituted another rape;
• on the third occasion you touched and penetrated D’s vagina with your fingers. That also amounted to rape;
• there was a further occasion on which you had D suck your penis, you touched her vagina and then sucked her vagina. That conduct amounted to both rape and indecent assault;
• on another occasion you penetrated her vagina with your finger. That constitutes the crime of rape;
• on another occasion, the sixth, you had her suck your penis, another rape; and
• on a final occasion, which involved two or three occasions of further sexual touching which were indecent assaults.

Your personal circumstances were described to me by your counsel and in a report from a very experienced forensic psychologist, Dr Georgina O’Donnell. You are now aged 39. You are an aboriginal man who grew up in Queensland but in circumstances of very considerable disadvantage. Your father died when you were young. You were one of three siblings who remained in the care of your mother after four other siblings were removed. She had an itinerant life and abused alcohol and drugs. At times, your circumstances were so dire that you were forced to steal food for yourself and your younger sister and brother. You disengaged from formal education at age 16 and began seasonal work. To your considerable credit you took up painting and became a successful tradesman, working your way up to being a lead painter and foreman. You have formed age appropriate and successful relationships with women and you have two children apart from D who are now aged 18 and 16. You came to Tasmania about 11 years ago.

 

A significant factor in your more recent life is abuse of illicit drugs. You began using methylamphetamine about four years ago and became a very heavy user. Dr O’Donnell does not attribute your offending to any major mental illness, personality disorder or intellectual disability. You deny any underlying sexual interest in children but there could be no doubt that you displayed and acted upon a sexual interest in these two children. Dr O’Donnell explains that one of the effects of methylamphetamine use is heightened sexual arousal and reckless sexual behaviours. That may explain your actions but does not provide any excuse or mitigation. Since these offences came to light you have managed to overcome your addiction to methylamphetamine without professional support.

 

You have no previous convictions for sexual offending, although that is frequently the case for offences of this nature. Considerable mitigation arises from your early plea of guilty. It entitles you to a discount on an otherwise appropriate sentence for a number of reasons. In your case I accept that it is an indication of remorse and an acceptance of responsibility. You admit all of the conduct although your memory of that period is clouded by your heavy drug use. You understand the gravity of what you did and the harm that you have done and are deeply ashamed of it. Your plea vindicates the complainants and makes it unnecessary for them to suffer the additional trauma of having to prepare for and give evidence at a trial. Those matters moderate the need for strong personal deterrence although Dr O’Donnell also recommends targeted treatment and programs as a way of reducing any future risk you may pose.

 

It remains the case however that you are to be sentenced for very serious crimes. You committed a grave breach of the trust of your own child and the child for whom you had assumed a parental role. You breached the trust of their mothers. Your responsibility was to protect and care for the children. They were both of very tender age. The crimes were committed in what should have been the safety and security of their home. It is to be presumed that sexual crimes against children will cause profound harm, likely to be lifelong. Compared to some cases, the period of abuse was not lengthy, but it was long enough to be extremely damaging. According to D’s mother she has already displayed some emotional changes. Both she and J are still both very young. For each of them the consequences, emotional, psychological, sexual and behavioural, are likely to be profound and long lasting. Sometimes the full impact of such crimes does not emerge for a very long time. In these comments I have, as I am required to do, taken into account any of the circumstances of aggravation listed in the Sentencing Act 1997, s 11A, which apply to this case. For completeness I record that I have taken into account the circumstances listed in sub-section (1)(a), (c) and (d). Counsel for the prosecution does not assert that any others apply. I am required by the Sentencing Act, s 11(3), to identify the sentence that would have been imposed for each offence, had separate sentences been imposed. I have also had regard to the seriousness of the acts which constituted each crime. The crimes against each girl were very serious, and the nature of the acts perpetrated against D were the most serious. The aggregate sentence to be imposed is to be moderated by proportionality and totality while also addressing the need to recognise the separate wrong done to each child. I must look at the totality of your criminal behaviour and ask myself what is the appropriate sentence for all the offences. I will allow the earliest eligibility for parole. You have been in custody since 24 March 2023.

 

AN, you are convicted on each count. I order that your name be placed on the register kept pursuant to the Community Protection (Offender Reporting) Act 2005, and that you comply with the reporting conditions under that Act for a period of 15 years from your release from prison. For the crime against J I would have sentenced you to imprisonment for five years. For the crime against D, I would have sentenced you to imprisonment for eight years. I impose one sentence. You are sentenced to imprisonment for 10 years from 24 March 2023. I order that you not be eligible for parole until you have served half of that term.