STATE OF TASMANIA v D W 30 OCTOBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr W, you have pleaded guilty to three counts of rape.
You committed these crimes when you were 18 years of age. You are now 19. The crimes were committed against your former partner during the course of your relationship with her. At the time, you and your partner were living together in your partner’s mother’s house. Her mother was also living in the house at the time.
Each crime was committed during the course of a separate occasion of sexual intercourse, which had commenced with the consent of your partner. On each occasion, during the act of intercourse, she expressly withdrew consent to its continuation because she had become uncomfortable and was experiencing pain. On each occasion, you continued with sexual penetration despite being well aware that she had withdrawn consent. On two of the occasions, you continued until ejaculation. On the other occasion, the complainant was eventually able to force you off her by placing her hands on your chest and pushing you. On the last occasion, when you continued until ejaculation, you did so despite repeated requests from the complainant to stop.
The commission of these crimes came to the attention of police because you went to a police station and reported the crimes. You did this on the day that you and your partner ended your relationship. You made full admissions and expressed remorse. You were held in custody for three days. After you had done this, the police interviewed your partner. It is apparent that she had no intention of reporting your conduct to authorities but when police spoke to her, she confirmed that you had committed these crimes. She has not provided a victim impact statement, and some of the material provided to me suggests that she continues to be supportive of you. Of course, her reluctance to report the crimes and her current attitude about them does not mean that your crimes have not harmed her, nor that she will not experience consequences in the future. It is well known that crimes such as this can have long-standing impact, although the full extent of that impact may not manifest in the short-term.
During the course of the plea in mitigation, your counsel provided me with a short letter from a mental health nurse who has been engaged with you through Mental Health Services. The letter noted a diagnosis of bipolar affective disorder and that you have been engaged with mental health services since you were 13. The author spoke highly of your character, considered that your commission of these crimes would be out of character and speculated that your admissions may be driven by your “delusional drive to be punished”. As a result of this, I ordered a forensic mental health assessment. The consequent report confirms the diagnosis of bipolar affective disorder and notes also your demonstration of “problematic personality traits and vulnerabilities, poor interpersonal functioning and dysfunctional and reactive coping strategies when in distress”. In respect of the potential link between your psychological state and the commission of the crimes, the author of the report said this, and I quote para 38:
“On the balance of probabilities [the defendant’s] offending can best be explained by his idiosyncratic sexual need and the minimisation of harm and criminality leading to moral disengagement rather than being secondary to any clinical pathology. While acknowledging his admission to police and pleading guilty in court, [the defendant’s] unsophisticated and omnifarious accounts of the material events in interview indicate limited insight and remorse.”
Of course submissions have been made about that question today.
In respect of the Verdins principles, the psychologist opined that your psychological problems may increase the hardship which you experience in prison and that prison may have an adverse effect on your mental health. Whether or not that is properly categorized as a matter arising under Verdins, I think that I can take that into account, the impact of prison, given your recent experience, and also your age and prior history. However, my view is that your psychological disorder does not enliven the Verdins principles in any other way and in particular does not reduce your moral culpability. The causal link between the underlying psychological conditions and your offending has not been established and, in fact, on the psychological evidence, it has been rebutted.
Rape constituted by the continuation of intercourse after initial consent to penetration has been withdrawn comes before this Court rarely. In the case of Ibbs v the Queen (1987) 163 CLR 447, the High Court distinguished rape committed in this way from other examples of the crime. On appeal, a sentence was imposed well below that which could normally be expected for a crime where penetration was effected without consent. Notwithstanding this, I do consider that there are some aspects of your conduct which make these crimes a relatively serious example of rape constituted by withdrawn consent. Those aspects include the repetition of the crimes, the clear and unequivocal withdrawal of consent and the ejaculation. Your continuation of intercourse on each occasion caused your partner physical pain, as well as distress evidenced by her use of force to resist you on at least one occasion. Further, each act constituted a serious breach of the trust inherent in your intimate relationship.
On the other hand, there are a number of matters which must be taken into account in mitigation. You do not have any prior convictions. Your counsel submits that you are remorseful and I think I must accept this submission, despite the opinion of the psychologist. However, the fact that the conduct was repeated on multiple occasions reduces the weight attributable to remorse. Further, although I think it is questionable that your self-reporting of the crimes, subsequent co-operation with the authorities, and early pleas of guilty occurred because of genuine remorse and insight, it is beyond doubt that you should receive appropriate consideration for the utilitarian benefit of these acts, including the fact that the complainant will not be required to give evidence in a trial in respect of this matter. Finally, a matter of great significance in sentencing is your young age, particularly when considered in the context of your mental health.
There is no doubt that the seriousness of the crimes warrants the imposition of a sentence of imprisonment. Further, it is appropriate that some part of that sentence should be actually served in prison. However, because of your age, lack of prior convictions and the mitigating circumstances to which I have referred, I intend to partially suspend a significant portion of the sentence. A condition of suspension will include probation supervision, which I think is important having regard to the contents of the mental health report.
The orders I make are as follows:
1 You are convicted of the crimes to which you have pleaded guilty.
2 You are sentenced to a global term of two years’ imprisonment, which will be backdated to 9 August 2019. The last 18 months of the sentence will be suspended for a period of 2 years which will commence when you cease to be imprisoned under this sentence. The suspension will be on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from when you lawfully cease to be imprisoned under this sentence. The Court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. For the purpose of those provisions, you must report to community corrections within three clear days of your release from prison. The following special conditions will be incorporated into the order:
(i) you must, during the operational period of the order, attend educational and other programs as directed by a probation officer;
(ii) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(iii) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
3 You will not be eligible for parole in respect of the operative sentence, which is a period of six months.
4 I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case and the contents of the mental health report, I am not satisfied of that matter and, accordingly, must make an order. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of five years, which will commence on the date of your release from prison.