STATE OF TASMANIA v DKDM                                                               7 AUGUST 2020

COMMENTS ON PASSING SENTENCE                                                            PEARCE J

 DM, you have pleaded guilty to persistent sexual abuse of a young person. That crime is committed by, during the period specified in the indictment, performing an unlawful sexual act against a young person on at least three occasions. In this case the unlawful sexual acts are all instances of unlawful sexual intercourse with a young person. In early 2019, when you were 22, you moved from Hobart to Queenstown. You became friendly with a young girl. By about the end of May you commenced a relationship with her and after about a month you began to have sexual intercourse. She was aged 15 years and 11 months. Over the course of the following seven months or so until 26 January 2020 you frequently had vaginal sexual intercourse with her, either in your home or in her home. All of the sexual intercourse was consensual, but on no occasion did you wear a condom and no form of birth control was used. The result was that she very quickly became pregnant. You and she also contracted a sexually transmitted disease, chlamydia, which required treatment. It cannot be established whether it was transmitted from you to her or vice versa. In early 2020 the relationship became known to Child Safety Services and the police were notified.

When you were interviewed you admitted your conduct. You admitted that although you initially thought she was 17, you knew her real age by the time you started having sex. A few weeks into the relationship her mother phoned you to ask you not to cross the line. However, as the relationship progressed, her mother seems to have either acquiesced or become resigned to it, because the relationship was conducted openly and you slept at the house in which the complainant lived with her mother. The complainant gave birth to your child in early March, at which time she was aged 16.

You are now aged almost 24. You come from very unfortunate circumstances. You were raised by your mother, but her ability to be a good parent was substantially impaired by poor mental health and substance abuse. You were subject to abuse and neglect. The result was that you were removed to foster care between ages 8 to 10 but from then until you were 17 you were largely homeless and fending for yourself. From a very young age you started to commit offences and you now have a very long record for violence and dishonesty. You have served sentences of detention and imprisonment. You are currently serving sentences imposed for violence, dishonesty and for anti-social behaviour totalling 16 months from 28 April 2020. If granted remissions your earliest release date is 7 May 2021. Your latest release date is dated 7 August 2021. No orders were made allowing eligibility for parole. On your release you will be subject to a five month term of imprisonment suspended for three years. Those sentences are relevant to totality, although this crime involves quite separate criminality. Although you have no prior convictions for sexual offending, this represents a continuation of your persistent and serious general disregard for the law.

There are a number of matters to be taken into account in your favour, or which make this case less serious than it otherwise may have been. The relationship between you and the complainant arose from mutual affection, and the sexual intercourse was consensual. There is no indication that she was pressured or forced to participate or was overborne. You did not set out to take advantage of her. The age difference is just under 7 years. There is no evidence of immediate harm to her. She chose to not make a victim impact statement. You readily admitted your conduct and entered an early plea of guilty. That means that the complainant is spared the trauma and embarrassment of having to give evidence. It also facilitates justice at a time when, as a result of the pandemic, trials are significantly delayed.

On the other hand, the absence of a condom or any form of birth control is an aggravating factor. Every such case results in the risk of pregnancy and transmission of disease, and in this case both those risks eventuated. You were well aware at the time of the wrongfulness of your conduct. Her mother’s attitude, whatever it was, does not absolve you from responsibility for your own acts. In cases like this, the main purpose of this law is to protect young people from sexual activity until they are old enough and mature enough to make sensible decisions on their own behalf. Young persons often require protection from themselves. Her child will hopefully be loved and cared for, but the responsibility of a parenthood for a person as young as the complainant is a heavy one, possibly not fully appreciated before it happens. As a result of your imprisonment the status of the relationship is currently uncertain. It is possible that other detrimental and damaging consequences may emerge over time. It is important that the potential impact of crimes like this, and the likelihood of punishment, is made clear to you and others who may be tempted to act in a similar way.

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. The nature of this case is that, although the risk may not be a large one, I am not satisfied that there is no appreciable risk.

You are convicted. 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 a period three years from your release. You are sentenced to imprisonment for 12 months. I order that you not be eligible for parole until you have served half that sentence. I order that three months of the sentence be served concurrently with the sentence you are currently serving or liable to serve, and the remaining nine months is to be cumulative. The result is that, subject to the grant of parole, you will be required to serve at least an additional three months.