STATE OF TASMANIA v CJW 14 AUGUST 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Mr W was found guilty by a jury of three counts of maintaining a sexual relationship with a young person, two counts of rape, and six counts of indecent assault. The crimes were committed against six different child complainants who I will refer to in the published version of these comments by fictional names. It is for me to find facts for sentence, but it is my duty to impose sentence on a basis which is consistent with the verdicts. For the purpose of determining the factual issues between the Crown and the defendant, I may only make findings adverse to him if satisfied beyond reasonable doubt they have been proved and I may only make findings of fact in his favour if they are proved on the balance of probabilities. However it is obvious from the verdicts that the majority of the jury was satisfied beyond reasonable doubt, in every case, of the truth of the evidence of the complainants. The same applies for the three counts of maintaining a sexual relationship with a young person because, in accordance with the answer to questions the jury was invited to answer, the majority of the jury was satisfied that all of the unlawful sexual acts specified by the State for each count were proved. The verdicts and answers accord with my own findings.
The offences were committed over a period of about six years between 2012 and 2018. The defendant was then aged between about 46 and 52. He lived alone in a residential area in a city in the north west of Tasmania. All of the complainants are children of persons with whom the defendant had been a close and trusted friend, and either were, or had been, housemates or neighbours. Three of the complainants are children of Margaret and Paul Hamlin, who lived only a few houses away. Two of the complainants are the children of Karen Thorne and Simon Conway who, in 2014, lived with the defendant in his home for about 6 months, before moving out and ending up in Ulverstone. The other complainant is Brody Davidson, the son of another neighbour, Linda Moroney, Mrs Hamlin’s best friend. Throughout the relevant period the defendant maintained a close relationship with both Mr and Mrs Hamlin. He spent a great deal of time at their home, sharing meals. He was regarded as part of the family and the children referred to him as uncle. The defendant worked as a delivery driver based in Ulverstone, which required that he work late at night and early in the morning. An arrangement was in place whereby one or other of the children was sent to the defendant’s home to make sure he was awake in time for work. Because his employment was based in Ulverstone, the defendant also spent a lot of time at the home of Ms Thorne and Mr Conway, calling in both before and after work for refreshments and meals. Mr Conway, for a time, also worked as a delivery driver based at the same business. On occasions, their two sons, Paul and Campbell, spent time with the defendant, including by one or the other occasionally accompanying him to work and on his deliveries.
The first complaint of abuse was made in November 2016. Elizabeth Hamlin told a school friend, and then the school chaplain, that about a month earlier the defendant had touched her. Elizabeth was 11 at the time. The police were notified and Mr and Mrs Hamlin were consulted. No further steps were taken, and nothing was said to the defendant, because Mr and Mrs Hamlin did not believe the truth of the complaint. They told the police that they would keep their children safe, but, in reality, little restriction was placed on unsupervised ongoing contact between the defendant and their children. I am satisfied that this was so because of their friendship with, and trust in, the defendant.
On 1 March 2017, the defendant was at the home of Ms Thorne and Mr Conway in Ulverstone. The defendant resolved to drive his work truck to the shop to buy soft drinks for himself and others. At the defendant’s invitation, Paul Conway went with him. Paul was then aged 15. They were gone for longer than expected. When they eventually returned after more than an hour Paul’s parents noticed something was wrong. After the defendant left for work, Paul eventually disclosed that the defendant had, while driving around in the truck, reached across and repeatedly touched him on the penis on the outside of his shorts. The police were notified and attended. Paul repeated his complaint and was interviewed on 17 March 2017.
The audio visual recording of the interview was played to the jury as part of Paul’s evidence. He told the police that when he was touched on the penis the defendant moved his hand around. The defendant asked him to get out of the truck but he refused and asked to be taken home. During the interview he disclosed other occasions of indecent touching of his penis during the previous year or so. One occasion occurred in the defendant’s home, in his bed where Paul slept as a precursor to accompanying the defendant to work. After he woke at 4.00 am the defendant touched him on his penis, over his clothing, and moving his hand around. The other occasion occurred in Paul’s bedroom. The defendant came in when he was watching television and touched him on the penis, again moving his hand around. There were others in the house at the time. Each of the three occasions to which I have referred constitutes an indecent assault and are the subject of counts five, six and seven on the indictment, all of which the jury found proved.
After Paul’s initial disclosure, his brother Campbell was asked whether anything had happened to him. He was interviewed by a police officer on 13 March 2017 when he was 12. The audio visual recording of the interview was played to the jury as part of Campbell’s evidence. He related sexual crimes which were committed against him when he was aged 11 or 12. The crimes occurred in the defendant’s bed on two occasions, separated by about two weeks, on which Campbell was to go with the defendant to work. He slept at the defendant’s home so that they could leave early in the morning. He was in the defendant’s bed because he was offered nowhere else to sleep. His account of what then occurred resulted in the defendant being charged with two counts of indecent assault and two counts of rape. On each occasion the defendant removed Campbell’s shorts, played with his penis, and had sexual intercourse with him by penetrating his anus with his penis. The sexual intercourse was without consent. It was painful, and he told the defendant to stop, but he did not. The defendant, on at least one of the occasions, withdrew his penis from Campbell’s anus and masturbated himself so he ejaculated onto Campbell. Those allegations form the basis of counts eight to eleven on the indictment, all of which the jury found proved.
The defendant was interviewed about the allegations concerning Paul Conway and Campbell
Conway in June 2017. He denied his guilt but was charged and admitted to bail in December 2017. He also denied his guilt to Mrs Hamlin. Such was the faith of Mrs Hamlin and Ms Moroney in the defendant that, at the defendant’s direct or indirect request, they wrote references attesting to their continuing trust in him with their children.
On 17 October 2018, Elizabeth Hamlin’s older sister, Madison Sanders, then aged almost 15, told a school friend that the defendant had raped her. The complaint was conveyed to the friend’s mother and eventually to the police. The police informed Madison’s mother, Margaret Hamlin, of the substance of the complaint on 24 October 2018. That process led to disclosure by Madison’s older brother Andrew Sanders, then aged 17, and Brody Davidson, then aged 10, that they had also been the subject of sexual abuse by the defendant. The new allegations led to the allegation originally made by Elizabeth Hamlin in 2016 being re-visited, and each child was interviewed by the police. The audio visual recordings of the interviews were played to the jury as part of the evidence of each witness. In the case of Andrew Sanders, he did not at first make full disclosure of the defendant’s acts. He was interviewed again on 19 February 2019 when he gave additional details of the abuse.
I will first deal with Andrew Sanders. The majority of the jury found the defendant guilty of maintaining a sexual relationship with him by finding that each of the five unlawful sexual acts specified by the State were proved. The acts commenced in 2012 and continued until just before his 17th birthday in 2018. On the first occasion, when Andrew was 11, he visited the defendant’s house to collect bread. The defendant indecently assaulted him by touching his penis under his clothing. On the second specified occasion, Andrew went to the defendant’s house to wake him up and to collect flavoured milk. The defendant indecently assaulted him by touching his penis under his clothing. Sexual intercourse commenced in about 2014 when Andrew was 13. On the third specified occasion he was sent to the defendant’s house to wake him in the afternoon. The defendant told him to lie on his bed. He pulled down his pants and penetrated his anus with his penis. He withdrew his penis and ejaculated onto him. The fourth specified occasion is an indecent assault committed in January or February of 2018, when Andrew was 16. At the defendant’s house, the defendant pulled down Andrew’s pants and stroked his penis. By the time Andrew was 16 he was staying at the defendant’s home from time to time. On the final specified occasion, which occurred around March 2018 when Andrew was 16, he had slept in the defendant’s bed. The defendant got into the bed, touched his penis, penetrated his anus with own penis, and then had Andrew penetrate the defendant’s anus with his penis. The defendant ejaculated onto Andrew. The specified unlawful sexual acts comprise three indecent assaults and two instances of sexual intercourse with a young person. I am satisfied that they are examples that Andrew was able to describe and specify and that the evidence establishes that the crime goes beyond the identified occasions. I can only estimate the extent, but I am satisfied that the identified occasions occurred as part of an ongoing and sustained course of sexual abuse during the offending period, commencing with assaults, progressing to anal intercourse and then to mutual anal intercourse. The State does not assert that the sexual intercourse was without consent, but the absence of the consent of a child does not mitigate the seriousness of the crime. It occurred in this case only after sexual conduct was initiated by the defendant at a time when Andrew was young, fearful and confused about how to respond, and then gradually normalised over time.
In the case of Madison Sanders, the majority of the jury found the defendant guilty of maintaining a sexual relationship with her by finding each of the four unlawful sexual acts specified by the State were proved. Each of the specified acts is rape. The abuse commenced in 2014 or 2015 when Madison was 11 and continued until she stopped going to the defendant’s house in 2018 when she was 15. It was interrupted in 2013 when Madison required surgery for a brain condition, but resumed afterwards. On the first occasion, when she was 11, she went to his house to collect something. He took her to his bedroom and touched her vagina. She told him no but he did not stop and had vaginal sexual intercourse with her. The next specified occasion occurred when she had just turned 13. He asked for her to be sent to his house to pick up a watch he wanted to give her. He had vaginal sexual intercourse with her on his bed, and he ejaculated onto her. The next specified occasion occurred in 2017 when she was 14. She was invited to his house to pick up a necklace. He had vaginal sexual intercourse with her and ejaculated onto her. The final specified occasion occurred on 4 April 2018. She remembered the date because it was her boyfriend’s birthday. She was 15. She was at the defendant’s house, and he had vaginal sexual intercourse with her on his bed. She did not return after that day. Again, I am satisfied that the defendant’s culpability for the specified acts is to be assessed on the basis that they formed part of an ongoing and sustained course of sexual abuse comprising further instances of sexual intercourse. Madison is able to particularise and identify an unlawful sexual act on four specific occasions during this period, but they are to be considered as examples. I can do no more than estimate the extent of the further abuse. Madison, when asked, said that it had happened 50 times. I am not satisfied that there were so many occasions but I think that was her way of describing that it happened many other times. I am satisfied that there were other occasional instances of non-consensual vaginal sexual intercourse throughout the indictment period.
In the case of Brody Davidson, the crime of maintaining a sexual relationship was committed by the defendant indecently assaulting Brody on four separate occasions between 2016 and 2018 when Brody was 9 or 10. On each occasion the defendant put his hand down Brody’s pants and played with his penis. On three occasions the assault took place at the defendant’s home when Brody had been sent there to wake the defendant up, or to collect flavoured milk or something similar. On the other occasion it occurred during a trip on which Brody, with his mother’s permission, accompanied the defendant to Smithton to visit the defendant’s son.
When re-interviewed in 2018 Elizabeth Hamlin, by then aged 13, gave more details of the indecent assault that she had first complained about in 2016 when she was 11. She had gone to the defendant’s house to pick up headphones. While inside, he pushed her into the bathroom, put his hand under her underwear and touched her vagina. He asked her if he could “put white stuff” on her. She was shocked, pushed him away and ran off. She heard him say that if she told anyone that he knew where she lived.
The defendant is now 52. He denied that any sexual conduct towards any of the children. The majority of the jury did not believe him. He has limited education and poor literacy and numeracy. His counsel submitted that the defendant has reduced intellect, but nothing was put which would reduce his culpability for crimes of this nature. The defendant was able to live independently, was in a relationship, and was able hold down a job as a delivery driver in which he was regarded as a reliable employee. He has been married twice and has had six children, two of whom died as children. It was put that he was also sexually abused as a child. He has some health problems, but nothing as to reduce what would otherwise be an appropriate sentence. He has no relevant prior convictions, and witnesses gave evidence of his otherwise good character. However, good character is of no mitigation in cases like this because, otherwise, he would not have had the trust of the parents and would not have been in a position to offend. All of the children gave evidence and were cross examined, albeit from the remote witness room, thus forcing them to recall and recount the offences which were committed against them. The burden on them was somewhat reduced by admitting their interviews as evidence. The sentence is not to be increased because of the defendant’s plea of not guilty, but the defendant is not entitled to the substantial reduction of sentence which a plea of guilty commonly attracts in cases like this.
The seriousness of child sex offences, and the factors relevant to sentence, were explained in detail by the Court of Criminal Appeal in Director of Public Prosecutions v Harington [2017] TASCCA 4. I also have regard to the aggravating circumstances I am required to take into account by the Sentencing Act 1997, s 11A. These crimes were all committed when the children were under the defendant’s care and supervision in various ways. On occasions they stayed at his house. On other occasions they went with him alone in a vehicle. Even if the children were just visiting, they did so in circumstances in which their parents trusted the defendant to be alone with them. He committed a grave breach of the trust placed in him by the children and their parents. In the case of four of the six children the offending occurred or commenced when they were younger than 13, when he was at least 46. In almost every case the children were told to not say anything, and in the case of Elizabeth, the comment to her contained an implied threat. All of the sexual conduct was initiated by the defendant. Gifts and inducements were offered. In the case of Andrew Sanders, many gifts were bought for him. The defendant was controlling and manipulative towards him, becoming angry when he would refuse to stay. For others, lollies, flavoured milk and bread were all offered as reasons to have the children come to his house. I am also satisfied that the waking up arrangement was, at least in part, a ruse to allow access to the children. I am not satisfied that the defendant’s friendship with the families was solely motivated by a wish to have access to the children, but it formed a part. Some aspects of the sexual abuse were degrading and humiliating, particularly the anal intercourse perpetrated against Andrew Sanders and Campbell Conway, the rapes of Madison Sanders and his ejaculation onto those children. Any distress or resistance was ignored. For much of the period of offending he was abusing the children at the same time. None of them, apart from Elizabeth, said anything. I am satisfied that was from fear of not being believed and confusion about how to respond to acts committed by a liked and trusted adult family friend. When Elizabeth did say something she was in fact not believed. The position must have been terribly isolating for all of them. The defendant did not stop the abuse even after having been charged with offences against Paul and Campbell Conway and been admitted to bail.
The defendant has committed crimes against six different children of a nature which are potentially corrupting and carry enormous potential for harm. In all but one case, each child was offended against on multiple occasions. The prohibition on sexual abuse of children is founded on the presumption of harm. There is no evidence of any adverse physical impact or injury. I have read victim impact statements from Elizabeth, Madison and Andrew. All describe the type of adverse psychological impact which may be expected. Their lives have been changed. Thoughts about what happened to them constantly intrude. Their ability to trust others is reduced. I do not have victim impact statements from the other three children, but that does not mean that there is no impact. Enduring and pervasive psychological effects may emerge over many years and in various forms. Frequently such crimes badly affect the selfesteem of a victim, and his or her ability to feel safe and form secure and loving relationships.
For the crimes of maintaining a sexual relationship, the defendant should ordinarily suffer the same penalty as if the offences were charged separately. For those crimes, and the other crimes of which he has been found guilty, the total aggregate sentence is to be moderated by proportionality and totality. Viewed in isolation, the crime committed against Andrew Sanders, involving three indecent assaults and two instances of sexual intercourse with a young person in the context of repeated penetrative and other abuse of a boy aged between 11 and 16, warrants a sentence of at least eight years. The crime against Madison Sanders, involving four rapes in the context of other abuse of a girl aged between 11 and 15 years, warrants a sentence of at least nine years. The crimes against Campbell Conway, comprising two indecent assaults and two anal rapes of a boy aged 11 warrants a sentence of at least seven years. The indecent assaults of Paul Conway required a sentence of at least six months. The indecent assault of Elizabeth Hamlin required a sentence of imprisonment for eight months. The crime against Brody Davidson required a sentence of at least two years. I take account of the defendant’s age when he will be released. I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that he does not pose a risk of committing a reportable offence in the future. The nature and circumstances of the offences found proved compel the conclusion that he poses a considerable future risk. Pursuant to s 24(3) of the Act, the defendant is required to comply with the reporting requirements of the Act for the rest of his life unless I determine a lesser period to be appropriate. I am not able to determine that a lesser period is appropriate. I will allow for parole but not until the defendant serves a term which is the minimum required to meet the requirement for punishment, deterrence and vindication of the victims. The sentence will commence on the day the defendant was taken into custody.
Mr W, you are convicted on each count. I make an order under the Community Protection (Offender Reporting) Act 2005 directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for the remainder of your life. I impose one sentence. You are sentenced to imprisonment for 17½ years from 6 December 2018. I order that you are not eligible for parole until you have served 11 years of that sentence.