STATE OF TASMANIA v DLS 29 SEPTEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
DLS, you have been found guilty by a jury of four counts of penetrative sexual abuse of a young person occurring across two specific occasions. The charges were found as alternate verdicts to a primary charge of persistent sexual abuse of a young person. You were found not guilty of the primary charge. It is my task to find facts for sentencing purposes consistent with the jury’s verdicts. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in your favour if they are proved on the balance of probabilities.
The State relied upon eight specified occasions in prosecuting the crime of persistent sexual abuse of a young person. The two occasions to which the jury returned guilty verdicts were occasions 2 and 4. I will sentence on the basis of the complainant’s evidence, whom I shall refer to as B, in respect to each of those occasions. Your case was that no incident of sexual abuse ever occurred. The jury must have accepted B’s evidence of these two occasions beyond reasonable doubt, thus there is no basis to sentence other than in accordance with her evidence.
In respect to the second occasion, B’s evidence was that you and she had taken a motor vehicle, which you had been working on, for a test drive around some rural roads. During that drive you stopped at an intersection and penetrated her vagina with your fingers. You continued driving, and a short time later, you penetrated the complainant’s mouth with your penis. This occasion involved two acts of penetrative sexual abuse of a young person, once by way of digital penetration and once by way of oral penetration. The fourth specified occasion occurred in your bedroom at your residence, whilst your partner was absent. You and B were in bed together. You penetrated her vagina with your fingers and then inserted your penis into her mouth. You ejaculated into her mouth. Again, this behaviour amounts to two acts of penetrative sexual abuse of a young person.
These crimes occurred between 1 January 2021 and 3 February 2021 when B was aged 14, and you were aged 32. You were a friend of her family. You had come to know her mother after you had done some work at their residence. A friendship developed. Shortly thereafter the complainant began staying at your residence when her mother had to work. You and she developed a close relationship. She found you easy to talk to. She confided in you about some difficulties she was experiencing with members of her family, a previous boyfriend and various other teenage issues. Because of the difficulties she was experiencing at that time she was, I am satisfied, vulnerable and desirous of affection. You took advantage of that and breached the trust that had developed between you and her, by sexually abusing her in the manner that you did. You also breached the trust of her mother who had entrusted you to care for her.
Initially, B was very reluctant to report matters to police. She disclosed some matters to her mother, but in a sanitised fashion, largely because I find, she was emotionally conflicted and still wishing to protect you. Indeed, even during the course of giving evidence it was apparent that B continued to act protectively towards you. That is indicative, in my view, of the emotional turmoil crimes of this nature often cause for young victims. The reasons why victims of child sexual abuse may be reluctant to report crimes of this nature are well understood. They include, of course, shame and embarrassment, a fear of not being believed and, particularly relevant in this case, a reluctance to incriminate a person who may be the object of affection. That reluctance was no doubt reinforced in this case because the two of you continued to communicate via text messages for a period of time after the sexual abuse had come to an end.
You are now 34 years of age. You have no relevant prior convictions. You are self-employed as a truck driver. You are in a long term relationship. You have four children. Your eldest child suffers with cerebral palsy. She has spent much of her childhood in care, although around the time of the trial had come to live with you. She has significant care needs and at the time of the trial you were responsible for meeting those care needs. Because of the significant care role you undertook in respect to your daughter, I had you assessed as to your suitability for a home detention order, despite my reservations that these crimes were too serious for such an order. You no longer have the care of your eldest child, and I am of the view, home detention is not an appropriate sentencing response. You have some care responsibilities for your youngest child, who is 10 months old and was born to your current relationship, but these are not of the type that are of particular significance in the sentencing process. Your other two children live with their mother.
Laws of this nature are in place to protect young people who lack the emotional maturity and judgment to protect themselves from the type of profound and pervasive psychological harm that sexual offences against children are presumed to cause. B is now 16 years of age. I have read her victim impact statement. I accept her statement should be approached with a degree of care because she has been exposed to a number of traumas in her young life, but in my view, what she describes is consistent with the type of adverse, possibly lifelong, psychological impact which might be expected to result from sexual offences against children. She describes feelings of isolation and loneliness and no longer having trust in people. She has experienced anxiety and intrusive thoughts and flashbacks. She has experienced feelings of guilt for having disclosed the matter, together with a sense of shame. Whilst there may well have been other factors at play, it is almost inevitable, in my view, that your conduct was a strong contributing factor for the consequences B is now experiencing.
As noted, this crime involves a serious breach of trust. You had befriended her mother and were trusted to care for B at times when her mother was unavailable. B also trusted you and confided in you and you took advantage of that trust. Having heard the evidence, I am satisfied B was somewhat infatuated with you, but as an adult, it was your very clear duty to resist any acquiescence she may have demonstrated and to recognise she was far too young and immature to meaningfully agree to anything. There was an obvious age disparity and power imbalance, and her age and family circumstances made her vulnerable to the type of emotions which led to sexual activity. The primary aim in sentencing matters such as this is to reinforce the need for the protection of children. That necessitates the Court imposing a sentence which punishes and condemns your conduct, and deters others who may be in a similar position from acting in the same way.
There are no mitigating features in respect to the crimes you committed. You are not entitled to the mitigation a plea of guilty would have attracted. The complainant was required to give evidence and was cross-examined. In her victim impact statement, she speaks of the trauma and anxiety that caused for her. You have not shown any remorse for your conduct or its effect upon your victim. In my view, after balancing all relevant sentencing considerations, a period of imprisonment is the only sentence that will properly meet sentencing aims and reflect the serious nature of your crimes. Given your lack of prior convictions I will provide for the possibility of release on parole at the earliest time permitted by law.
DLS, you are convicted of the crimes of which you have been found guilty. I will impose one sentence. You are sentenced to a term of imprisonment of two years and six months. I order that you not be eligible for parole until you have served one half of that sentence of imprisonment. 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 therefore 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 that Act for a period of five years from your release.