STATE OF TASMANIA v B J F 17 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
B F, you plead guilty to persistent sexual abuse of a young person, twelve counts of involving a person under the age of 18 years in the production of child exploitation material and one count of possession of child exploitation material. Between March 2018 and January 2019, when you were 37, you engaged in sexual acts with a girl then aged 14 and 15. At the relevant time she was the subject of an order placing her in the care and protection of the State. Your offences did not come to light until March 2020, but before then your relationship with the complainant was a matter of concern to the authorities. From at least September 2018 court orders were in place prohibiting you from contacting her. When you were seen with her on 1 March 2020 you were arrested and your phone was seized. The phone was found to contain 15 sexually explicit videos taken of the complainant on 12 different dates. In seven of the videos you are depicted engaging in sexual acts with her. Those sexual acts form the basis of the charge of persistent sexual abuse of a child. The remaining images are all of her. All of the recorded images are child exploitation material which you produced and kept on your phone.
The seven specified occasions on which you engaged in sexual acts with the complainant occurred on 30 March 2018, just before her 15th birthday, 5 April, 14 April, 20 April, 22 April, 28 April 2018 and 31 January 2019. The sexual acts were filmed by you. The duration of the recordings ranges from 38 seconds to more than 17 minutes. I was given a detailed description of the contents of the recordings which I need only describe generally. The sexual acts performed on these occasions were numerous and amounted to the crimes of penetrative sexual abuse of a child, indecent acts directed at a child and indecent assault. Most of the acts were prolonged touching by hand and digital penetration of the complainant’s vagina. However the acts also included penile vaginal sexual intercourse, one occasion of penetration of her mouth by your penis, many instances of oral sexual intercourse performed on her, penetration of her vagina with objects, some sort of cylindrical object and a vibrator, digital penetration of her anus, and on one occasion penetration of her anus by an object, a carrot. In all of the videos the complainant is either completely or partially naked and the camera focusses on her vagina and anus. On one occasion the complainant was gagged with her hands tied to her legs. On another occasion she was gagged and her thighs and hands were both tied. Your phone also contained video images of the complainant recorded by you on five other occasions, 18 March, 13 April, 2 May, 11 May 2018 and 17 October 2019. Every such occasion depicts the complainant naked and performing explicit sexual acts, including touching her vagina and penetrating her vagina and anus with objects.
You are now 38. You were raised in Victoria in difficult circumstances. Your record of offending commences as a young man. It includes a range of offences, including many for serious violence, though not for sexual offences. You served numerous terms of imprisonment. It was submitted on your behalf that after your most recent release in that State you hoped to turn your life around. Your intentions were disrupted when you were seriously injured in a motor vehicle accident which resulted in an acquired brain injury. You came to Tasmania for a fresh start but when you spent a compensation payment you received to purchase significant quantities of illicit drugs, your criminal activities resumed. You first met the complainant when she was living with sex workers for whom you were driving. You became friends and she began to live with you. You initially believed she was older but you were well aware of her age before sexual contact commenced.
You are entitled to mitigation from your plea of guilty. It was never likely that the complainant was going to have to give evidence. Six of the seven identified occasions occurred over a relatively short period, but they are, as the other sexual images attest, to be considered as part of a course of conduct which continued throughout the offending period until the seventh occasion about nine months later, and the latest child exploitation video in October 2019. You claim to have had genuine affection for the complainant. In her victim impact statement she professes that she, at the time, held genuine feelings for you. It is not suggested that the acts committed against the complainant were without her consent, that you used force or threats to overcome resistance, or resorted to overt pressure or manipulation. Until very recently she has not engaged with the police or the prosecution. However, in cases like this, consent is not mitigating. There was a significant disparity in age. I take into account the factors in the Sentencing Act 1997, s 11A, to the extent that they have been raised. I see only subsection (1)(h) as having application. You were not responsible for her care or supervision, and she was not subject to your authority, but her circumstances, her age and lack of parental supervision, made her vulnerable to influence, and you were a liked and trusted adult. I have not been informed how sexual contact was introduced, but in such circumstances children sometimes acquiesce in sexual acts, or at least are confused about how to respond to sexual advances. A child may even come to enjoy, in whole or in part, the sexual attention to which they are subject. However such factors are rarely mitigating. One of the reasons the law prohibits sexual contact between adults and children is to protect children from judgments they are too immature, emotionally, intellectually and a sexually, to make for themselves.
Child sexual offences carry the presumption of harm. Some of the acts you perpetrated, anal penetration, use of objects gagging and tying up, for example, involved a high level of degradation. The complainant became pregnant with your child and has now given birth. It must also mean continued unlawful sexual intercourse even after the offending period and thereby increases the need for specific deterrence and indicates the absence of remorse. Your conduct only came to an end as a result of your arrest and remand in custody. The relationship is now at an end. The complainant, in a victim impact statement, expresses a level of confusion about what happened to her. It is entirely predictable that harmful psychological impacts will emerge over time. I do not lose sight of the fact that her life was difficult before you entered it, but there could be no doubt that your conduct towards her was corrupting and damaging and carried enormous potential for harm. Your assertion that the filming of these acts was for sexual gratification rather than distribution was not disputed, but it added to the degrading nature of your conduct and was humiliating for her when she became aware that the images had been discovered. You claimed remorse at the sentencing hearing but, by your conduct over time, you forfeited any claim to the type of remorse a court looks for. You were released on bail in September 2018 with a condition that you not contact the complainant. An interim restraint order was made on 6 November 2018 on the application of the child protection service preventing contact with the complainant. You repeatedly breached those orders, including by assaulting her. You were sentenced to short terms of imprisonment in March and May 2019. In August 2019 you were sentenced to imprisonment for eight months from 1 July 2019 with four months suspended. Following your release you quickly re-offended. The offences for which you were arrested included a firearm offence and threatening police. You were sentenced to imprisonment for a total of 14 months from 1 March 2020. You are not to be punished again for that conduct, but it demonstrates your disregard of the law and contempt of authority. It is relevant to totality but concerns different offending which warrants separate punishment. It is agreed that, with remissions, you would have been released on 19 September 2020 and so the term I am about to impose will commence then.
The only appropriate sentence is a significant term of imprisonment. I will allow for parole but only after the minimum term required to serve the need for punishment, deterrence and vindication of the victim.
B F, you are convicted on each count on the indictment. I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the register and that you comply with the reporting obligations under the Act for a period of six years from your release. I impose one sentence. You are sentenced to imprisonment for five years from 19 September 2020. I order that you not be eligible for parole until you have served three years of that sentence.