DIJL

THE QUEEN v DIJL                                                                                 26 OCTOBER 2020

COMMENTS ON PASSING SENTENCE                                                            PEARCE J

 DL pleads guilty to persistent sexual abuse of a child. At the relevant time he was aged 50. From late 2017 until the end of 2018 he lived in a room at an accommodation facility in a suburb of Launceston predominantly used for urgent or temporary accommodation. It contained private rooms as well as communal areas such as a lounge room and kitchen. In August 2018 the complainant moved into the facility with his mother and two younger siblings. The complainant is a boy then aged 13. He has Autism spectrum disorder which results in moderate to severe intellectual disability and limited verbal skills. He got to know the defendant and began to visit his room. During the period between 1 October 2018 and 20 November 2018 the defendant took the opportunity, which arose by reason of him being alone in his room with the complainant, to sexually abuse him. On the first identified occasion the defendant, while sitting on his bed with the complainant, pulled down the complainant’s pants, put his mouth over the complainant’s penis and performed oral sex on him. The complainant did not consent. That constitutes the crime of rape. Over the following two months or so at least 12 other rapes, committed in the same way, occurred. Other crimes were committed. On one occasion the defendant raped the complainant by, after removing the complainant’s pants, rubbing and then inserting his finger into the complainant’s anus. On another occasion he indecently assaulted the complainant by kissing him on the mouth while fondling his testicles. On another occasion he indecently assaulted the complainant by rubbing his own penis against the complainant’s penis.

The defendant’s offending was discovered when, in the course of a conversation on 20 November 2018 between the accommodation manager and the defendant and his social worker, the defendant disclosed that the complainant had “asked for head” and he had given it to him. The police were notified and the complainant was interviewed. When the police went to find the defendant on 22 November 2018 he had gone. In June 2019 the police became aware that the defendant was living in a new address, and he agreed to be interviewed. During the interview he admitted what had taken place.

One of the most important factors when sentencing for child sex offences is the potential for harm that may be caused. In this case the nature of the acts constituting the rapes did not involve risk of physical harm and were not as invasive and degrading as some other forms of rape. In general, rapes involving penetration of the victim warrant a greater sentence. The assessment of psychological harm is complicated by the complainant’s disability, but his mother’s victim impact statement describes obvious detrimental effects on her son. She says that the complainant has an intellectual age of seven or eight. Before her son was subjected to these acts he did not display sexualised behaviour. That has dramatically changed. He now frequently masturbates in inappropriate circumstances including in public. He engages in sexualised touching of others and makes sexualised comments. His life skills and level of independence have generally regressed. His eating and sleeping routines have changed, he has aggressive outbursts, his level of hygiene has deteriorated, and he has withdrawn from his grandfather and the other male family members. Some improvement has occurred as a result of respite at a specialist retreat where he is assisted by therapists and psychologists. Taking into account the complainant’s age and emerging sexuality, it is possible that some of these issues may have arisen independently of the offences. However the inference that the offences were a damaging corrupting influence and played a significant part in the deterioration of the complainant’s behaviour and condition is overwhelming, and I will sentence the defendant on that basis. It is an aggravating circumstance that the complainant is a person with an intellectual disability, and, as a result, even more vulnerable to exploitation. I accept that this factor heightens the defendant’s moral culpability.

The defendant is now aged 52. He is a disability pensioner who suffers from chronic paranoid schizophrenia for which he is medicated. Until his remand in custody on 15 September 2020 he lived independently with community support. His is a major psychotic illness which may result in delusions, but his counsel does not submit, after having received expert advice, that the defendant’s condition is linked to the offending behaviour. Provided his treatment is maintained, his condition will not deteriorate in prison, although his illness and presentation may add to his vulnerability as a prisoner. He has two prior convictions for sexual offences. In 2006 he was imprisoned for 12 summary offences including one count of indecent assault and one count of assault with indecent intent. The first involved touching a girl on the vagina in a shop. Details of the other assault are not known, but it is apparent that both offences are in a much lesser category of seriousness.

The only mitigating factor is the defendant’s plea of guilty and his admissions. The plea facilitates justice and spares the complainant’s family of the anguish of a trial. The complainant made limited disclosures and all of the detail of the offences was admitted by the defendant in circumstances where, absent admissions, proof of those matters may have been very difficult or impossible. He told the police that thought that the complainant was his friend, and that he “loved him like a friend”. He estimated between 12 and 20 occasions of oral sex but accepted it may have been more than that. He admitted that he inserted his finger into the complainant’s anus as an investigation of whether the complainant may have wanted anal sexual intercourse, but when he said he did not like it the defendant did not continue. He said he asked whether the complainant wanted to do anything to him, but when he declined he went no further. He said that he felt a little bit ashamed and embarrassed because he knew what he was doing was wrong. He also told the police that he stopped when his social worker told him that what he was doing was a criminal offence and that he might go to jail. The defendant’s admissions are in his favour, but conversely, his statements also demonstrate opportunistic sexual offending and a lack of insight into the seriousness of his conduct. Those factors add to the need for a sentence which deters the defendant and protects the public, as well as serving the need for punishment and retribution. I will allow for parole but only after the period which adequately addresses those sentencing factors.

DL, you are convicted 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 10 years from your release. You are sentenced to imprisonment for six years from 15 September 2020. I order that you not be eligible for parole until you have served four years of that sentence.