STATE OF TASMANIA v B C P 4 JULY 2019
COMMENTS ON PASSING SENTENCE BLOW CJ
I have to sentence Mr P on three charges of rape and two charges of indecent assault. He pleaded guilty to the first charge of rape, went to trial on five other charges, was found guilty on four of them, and was found not guilty on the final charge, which was another charge of rape. The charges all related to a single incident and a single complainant.
One night in February of last year, when Mr P was 17, he was in a group of teenagers who took part in a sleepover. They all spent the night in the rumpus room of a house in a country town. One of the teenagers lived there. Her parents were asleep upstairs. There were five boys and three girls in the rumpus room.
There were a number of beds and couches in the rumpus room. Two couches had been placed face-to-face to make an improvised double bed. The complainant, a 16 year old schoolgirl, went to sleep on one side of that bed, fully clothed. One of the boys lay down to sleep on the other side of that bed. He was a good friend of the complainant, but not a boyfriend. Neither of them had any intention of engaging in any sort of sexual activity that night. The complainant went to sleep quickly and slept very heavily, possibly as the result of having smoked some cannabis earlier in the night.
Mr P made some sort of bet with some of the other boys. As a result, he and two of the other boys got into or onto the improvised bed that the complainant was sharing. She was so deeply asleep that she did not wake up. One by one, the other boys left the bed until Mr P was the only boy remaining in it. At a time when everyone else in the room was apparently asleep, he began making sexual advances towards the complainant. At some stage he inserted at least one of his fingers into her vagina. He remembered doing that, and subsequently admitted that to police officers. Inserting one or more fingers into a person’s vagina without consent now amounts to the crime of rape. Count 1 on the indictment was a charge of rape in respect of that act of digital penetration. Mr P pleaded guilty to that charge at the beginning of his trial.
Mr P had been drinking heavily that evening. I am satisfied that he had no recollection of what he did after that. The events in question occurred after midnight on a Saturday morning. The complainant described the events of the night in an interview with a police officer that commenced at 10.34am on that Saturday. What she said was recorded. The audio visual recording was tendered on the trial as part of her evidence. She described five acts that took place without her consent. Those five acts were the subject of counts 1 to 5 on the indictment. She described Mr P inserting fingers into her vagina (count 1); indecently assaulting her by licking her vagina (count 2); inserting fingers into her vagina a second time (count 3); indecently assaulting her by taking her hand and placing it on his penis (count 4); and raping her by inserting his penis into her vagina (count 5). The verdicts of the jury indicate that they were satisfied beyond reasonable doubt of the truth of the complainant’s account as to those acts.
At the trial, the complainant gave evidence to the effect that Mr P raped her again, by inserting his penis into her vagina a second time. Count 6 related to that alleged act. The complainant did not mention any such act to the interviewing police officer or anyone else last year. The jury, by majority, found Mr P not guilty in relation to that charge. It seems that they were not satisfied beyond reasonable doubt that any such act occurred.
Mr P did not use a condom, but did not ejaculate.
The complainant had not met Mr P before the night in question. It is clear from her evidence that she did not like him. She reacted to his advances by repeatedly trying to move away, trying to pull her pants up when he had been pulling them down, trying to pull her hand away when he put it on his penis, and showing him no encouragement. She was paralysed with fear, and therefore did not make any noise or attempt to leave the bed.
The complainant gave evidence that, at one stage during Mr P’s assaults on her, he placed his hand over her mouth for a couple of minutes. She said it was there when he inserted his fingers on the first and second occasions. Counsel for Mr P submitted that I should not accept that evidence for sentencing purposes. The complainant did not tell the police anything last year about Mr P placing his hand over her mouth. It was argued that, just as the jury had a reasonable doubt about the alleged second act of penile penetration, which was not mentioned by the complainant to the police, I should entertain a reasonable doubt in relation to the new evidence about a hand over the mouth. I reject that submission. The complainant’s assertion that Mr P twice placed his hand over her mouth relates to a matter of detail that is far less significant than a second penile rape. A second penile rape, if it occurred, was a very significant crime. It is much more likely that a complainant, interviewed within hours after a series of sexual crimes, might fail to mention a matter of detail like the placing of a hand over her mouth than it is that she would fail to mention an additional act of rape. The complainant was an impressive witness. I am satisfied beyond reasonable doubt that her uncorroborated evidence about Mr P placing his hand over her mouth was true.
The complainant underwent a terrible ordeal. She was extremely distressed in the hours after Mr P left the house where he had committed these crimes. She provided a victim impact statement. It is clear that she is experiencing a range of psychological symptoms as a result of having been sexually assaulted and raped. Her performance in school subjects has been adversely affected, to such an extent that she considers that she will probably not be able to go to university at this stage in her life, and will probably not be able to join the Australian Defence Force, something she had very much wanted to do.
Mr P is now 18 years old. He has no prior convictions. He left school during grade 10. Since then he has been in employment, doing rendering, painting and manual labouring work. He lived with his mother until he was remanded in custody at the end of his trial. He is in good health. Except for drinking to excess on the night in question, he has had no problems with alcohol or drugs. Since being charged in relation to this incident he has rarely consumed alcohol. He appears to be emotionally immature and sexually inexperienced. A family friend provided a very favourable reference, stating that he was respectful, well mannered, and always a pleasure to have at her home.
When Mr P committed these crimes, he was an immature adolescent with no previous behavioural transgressions. It is therefore appropriate for him to receive a sentence significantly more lenient than a judge should impose on a mature adult, even on one with no significant prior convictions. I expect that a sentence of imprisonment will be a particularly dreadful experience for Mr P, given that he is used to living at his mother’s home and being cared for by her. I am required to impose a sentence that should deter individuals of a similar age to Mr P from committing sexual crimes, not one aimed at deterring mature adults from offending in similar ways. I will impose the shortest possible non-parole period because Mr P is only 18 and has no prior convictions.
B C P, I convict you and sentence you to two years six months’ imprisonment with effect from 24 June 2019. You will not be eligible for parole until you have served 15 months of this sentence. I order that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place your name on the register under that Act, and that you comply with the reporting obligations under that Act until your 22nd birthday.