STATE OF TASMANIA v TIMOTHY LESLIE BROWN 7 AUGUST 2019
COMMENTS ON PASSING SENTENCE WOOD J
Timothy Leslie Brown was found guilty of three counts of indecent assault and one count of rape. The crimes were committed during an incident on the night of 3 March 2018.
The defendant was known to the complainant. The complainant’s son belonged to a rowing club where the defendant was a rowing coach in a volunteer capacity. The defendant had coached the complainant’s son for a number of years. The complainant and her husband were grateful to him for the support and coaching he had provided their son and they regarded him as a friend.
The incident took place at a school rowing regatta at Lake Barrington. On this occasion, the complainant’s husband was unable to attend. He stayed at home to look after their other children and the complainant travelled with her son. It was the first regatta she had been to without her husband. She had a small tent set up for herself to sleep in and her son had a swag very close by.
On Saturday, the complainant’s son had rowed well and the defendant and the complainant were delighted by his success. The parents and coaches consumed alcohol over dinner, the defendant more than most.
Unbeknown to the complainant, the defendant was an alcoholic. The complainant was also unaware that the defendant was infatuated with her. His feelings for her were not reciprocated and she had not encouraged him. He imagined that it was reciprocated to a degree. This view was not grounded in reality. It may, inexplicably, have arisen from her genuine gratitude for his support for her son (gratitude that was shared by her husband), and assumptions the defendant made after learning that her husband had experienced a mental health condition. His alcoholism and ego were also factors.
On the night of 3 March, the rowers and their families were getting ready to settle down for the night when the defendant coaxed the complainant to a space away from the others and expressed his delight at her son’s success. She realised he did not have anything in particular to say to her that warranted drawing her away. He moved closer to her and she said to him – “you’re not going to try and kiss me are you?” He said he would like to, and she said to him, bluntly, “No, that’s not going to happen, I don’t do that” and turned and walked back to the camp without him. Feeling she had made her position perfectly clear, she got ready for bed, said good night to her son and fell asleep.
She woke during the night to see the defendant coming through the tent flap. She said to him, “what are you doing?” and “No, you can’t come in here”. He took no notice and came into the tent, zipping up the tent flap behind him.
He pushed her down onto her back with his weight. He told he that he had “such lust” for her and that he loved her. The complainant told him “This isn’t happening”. He kissed her, his mouth completely over her mouth and pushed his tongue down her throat. He also kissed her neck and her face. This conduct amounts to an indecent assault. She pushed on his shoulder and when she was able to, she said, “no, you have to get out of here”. He was undeterred.
While kissing her, his whole weight was on her body, and he reached down and pulled off her track pants and underwear. She said to him “you’re not going to do this”. As a friend, she thought he would listen to her.
However, he pushed up her bra and T-shirt, exposing her breasts and kissed her breasts. She kept pulling down her clothing to cover herself and this went on with him pushing up her clothing three times or more after she pulled it down. He sucked hard on her nipples so that it hurt. His kissing of her breasts constitutes the second count of indecent assault. He grabbed her buttocks and her thighs.
He inserted his fingers into her vagina committing the crime of rape (digital). He very vigorously moved his fingers inside her vagina for about 20 or 30 seconds. The defendant said to her, “Let me do this for you please. Let me do this for you. I have such lust for you. I love you.” She said to him, “I don’t do this. I love my husband.”
The defendant sat back on his haunches, naked from the waist down, his penis was erect and he grabbed her legs and pulled her towards him so that his penis was touching her genitalia. She squirmed away from him, pulling her legs together. He pulled her towards him, forcefully some three times after she moved away each time. This series of acts is the third indecent assault. He did not penetrate her vagina. He asked her if he could put it in a little way and she told him no. He asked if he could give her oral sex and she told him “no, you can’t”. She told him that his conduct was completely inappropriate, he had to get out of the tent and no-one could see him leaving. The complainant was very conscious of her son sleeping just outside her tent. She did not want anyone to know that the defendant had been in her tent, especially her son. There were numerous tents and swags nearby. One girl was particularly close. She was aware, too, that if he was seen leaving her tent, people would form their own views, she was concerned she would be judged because of his behaviour.
The defendant then left her tent. In his police interview he stated that this was when he realised that what he was doing was not right.
From the very beginning of the incident, and throughout, the complainant expressed her refusal, clearly and unequivocally, pushing him away, moving away from him and forcefully expressing her lack of consent, including by saying “no” to him over 20 times. There was no room for any mistake. Yet the defendant’s conduct was sustained and persistent. The defendant preoccupied with his own selfish desire, ignored her, knowing full well she was not consenting.
Ultimately the defendant did desist. His objective had been to have sexual intercourse with her, if not vaginal then oral intercourse, and I take into account that he did not commit those additional crimes.
In the days that followed, the complainant told a supportive parent and her husband, as well as the President of the Club who spoke with the defendant. The defendant resigned immediately, saying he would not speak against the complainant.
The complainant made a report to police, after struggling with a sense of responsibility for the consequences for the defendant. She was also worried about the impact on her family. It is important to note that complainants should not feel responsible for the consequences to accused persons for reporting crimes. The consequences are a result of their criminal behaviour. Further, it is in the interests of justice, and important for a safe and civilised society, that crimes, including sexual crimes, are reported. These are crimes against society.
The defendant was interviewed by police. It can be seen in his interview that he struggled to come to terms with what he had done. He told police he was drunk, and he described his behaviour as out of control, stating he could not control his sexual impulses. He agreed with significant aspects of the complainant’s account regarding his conduct and her lack of consent. He was genuinely remorseful. He also revealed a strong sense of personal failure in relation to the complainant, her son, the Club and his wife.
The complainant was required to give evidence at the trial. She was a thoroughly honest and fair witness. She has been vindicated by the jury’s unanimous verdict. She was dignified, and very articulate, yet she found the court process humiliating and degrading. I note that this could not be a criticism of defence counsel who cross-examined in a respectful fashion.
I have received a victim impact statement from the complainant. This is a powerful statement about the trauma and distress she has suffered. When articulate victims like the complainant speak up, they deepen the court’s and the community’s understanding of the trauma involved for all victims.
The complainant’s statement speaks of the impact on her directly, and also her distress about the impact of this crime on her husband and her children, especially her son who was coached by the defendant and who trusted him completely.
The law of rape in Tasmania has recently been amended to include penetration involving objects or body parts other than a penis. Previously, digital penetration was an aggravated sexual assault. The Second Reading Speech highlights that this brings our Code into line with other jurisdictions, and implements a recommendation of the Australian Law Reform Commission. The Speech notes that the amendment denounces all forms of non-consensual penetrative sexual crimes as “equally serious”. The approach I adopt is as follows. All forms of rape are potentially of equal seriousness. There is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, rather a case by case approach should be adopted and the seriousness depends on a range of factors. It is the facts and circumstances of each case, including the nature of the “intercourse”, that enables the proper evaluation of the objective seriousness of a crime. While an act of digital penetration, in general terms, is less serious than penile penetration, that is not necessarily the case. An assessment of seriousness is subject to the context in which the offence occurred and the accompanying circumstances.
Here, the commission of the crimes was accompanied by aggravating factors. The presence of children in the vicinity, particularly the complainant’s own son, is aggravating. They were exposed to the risk of harm as they may have witnessed the conduct. There is no suggestion that any children did become aware of what was taking place. This is largely due to the complainant’s concern about the children and her acting in a way to avoid waking and alarming them. By contrast, the defendant was unconcerned about that risk, preoccupied with his own selfish desire.
Further, as rowing coach to the complainant’s son and a family friend, the defendant breached his position of trust. In the setting at Lake Barrington, he was held in regard, and he was present in a capacity that meant he was a role model to young people.
A further aggravating factor is that the complainant was entitled to feel safe in her tent at this family event. Alone, she was vulnerable and the defendant took advantage of that.
The defendant is not entitled to the significant mitigation a plea of guilty would have afforded him.
The defendant has felt the consequences of his crimes. He has lost his employment and his voluntary role as coach, a role he enjoyed, representing years of hard work and dedication. As a coach he was held in high regard and he and his wife enjoyed the social life that his role with the Club provided. He has been married for over 30 years and has a close relationship with his children and grandchildren. Although he has the continued support of his wife, his family relationships have suffered as a consequence of his crimes. Having lost his job, and with few prospects of finding another position, he will continue to suffer financially. He is ostracised and now has few friends. He required medical assistance soon after he was charged, he was at risk of self-harm and required treatment for depression and anxiety. His criminal conduct has had a destructive effect on many aspects of his life.
He is 60 years of age with no relevant prior convictions. His alcohol dependence can be traced to a very stressful incident in his 30s. Since offending he has given up alcohol altogether. He has taken other steps to ensure he does not ever act in this way again. He has been having counselling on a regular basis. He has been prescribed medication for his depression. I accept that there is little need for personal deterrence.
However, there are objectives of sentencing that do apply, importantly, the need for general deterrence; the need to send a clear message that highlights the Court’s intolerance of these crimes, and the violence and degradation of victims that is inherent in the commission of them. This is a case, as I have said, involving a persistent lack of regard for the complainant’s wishes in the face of her unmistakable opposition. In addition to general deterrence, the sentence must reflect the seriousness of the defendant’s criminal conduct and the substantial harm it has caused the complainant and her family. A heavy sentence cannot be avoided. I wish to make it clear, that had the defendant not desisted, and if he had forced penile sexual intercourse as well, his sentence would have been more severe.
His personal circumstances, lack of previous offending, his remorse and his prospects of rehabilitation, warrant the minimum non-parole period.
I impose a global sentence on the three counts of indecent assault and one count of rape. I record a conviction and impose four years’ imprisonment from 29 July 2019. You are not to be eligible to apply for parole until you have served the minimum of half of your sentence.
I accept that you do not pose a significant future risk. But, having regard to the nature of these crimes, and your conduct, I cannot be satisfied that you pose no risk of committing a reportable offence within the meaning of the Community Protection (Offender Reporting) Act 2005 in the future, and I order that the Registrar appointed under that Act place your name on the register and that you comply with the reporting conditions under that Act for a period of three years from the date of your release from custody.