DOA

STATE OF TASMANIA v D O A                              29 AUGUST 2019

COMMENTS ON PASSING SENTENCE                              BRETT J

 Mr A, you have pleaded guilty to several crimes which were committed during a continuous course of conduct perpetrated by you over a prolonged period on 15 May 2018. The crimes were all committed against your niece, who was then aged 28 years. They consist of 14 counts of rape, two counts of aggravated assault, one count of indecent assault and one count of assault.

You committed these crimes in the house in which you lived with your then partner and four children. The children at that time were aged 10, 9, 8 and 5. They were all present in the house during the commission of the crimes.

Your niece is described in the prosecution facts as a person of low intellect. She had been living with you and your family since 21 March 2018 because circumstances in her life had left her homeless. The arrangement was that she would sleep in the children’s bedroom.

On the day of the crimes, you had been at work in the Hobart CBD. You were employed there. After work, you went to a licensed establishment and consumed a considerable amount of alcohol. You told police that you had consumed 12 schooners and were “pretty drunk” when you committed the crimes. You have instructed your counsel that you also took a pill which had been given to you while you were drinking, which you believe may have been an ecstasy tablet. In any event, it is common ground that you were intoxicated when you arrived home at about 8pm.

After you arrived home, you had a shower and your partner and children went to bed. When you came out of the shower, the complainant was still awake in the lounge room. You told her that you were “gonna fuck her”. She ran from you to her bedroom and started to get ready for bed but you followed her and entered the room. Your 10-year-old daughter was in bed in the room. You told your daughter to go and sleep with her mother. After the child left the room, you commenced a course of conduct which extended over three hours, and during which you subjected your niece to a series of vile, degrading and violent sexual assaults. She attempted to physically resist you at the start of this conduct and from time to time throughout, and she continually expressed her lack of consent. However, you overcame her resistance and ensured compliance with your demands by the use of violence. During the first 80 minutes, the conduct occurred in the bedroom. You then continued the conduct in the lounge room for a further 90 minutes. A more detailed summary of what took place in the bedroom is as follows:

  • After your daughter left the bedroom, you lay on the bed with your niece, despite her telling you to leave and that you could not sleep with her because you were her uncle. While you were lying on the bed you touched her on the legs and vagina on the outside of her clothing. These acts constitute the crime of indecent assault.
  •  You then told the complainant to suck your penis. She said “No”, and tried to run from the bedroom, but you pulled her back by the hair and instructed her to do what she was told. She continued to protest, including by reminding you that you are her uncle. You threatened her that unless she sucked your penis, she would get hurt. As a result, she did what you wanted. You thereby committed the crime of rape because her submission to sexual intercourse was obtained by force and the threat of force.

 

  • You then raped her vaginally despite your niece continuing to physically resist you and tell you “No”. When her protestations became louder, you told her to be quiet and you took hold of her by the throat and commenced to strangle her. She had difficulty breathing and, accordingly, she stopped resisting you. This physical attack constitutes the crime of aggravated assault.

 

  • You then perpetrated two further rapes, by penetrating her anus with your finger and then your penis. She tried to call out but you covered her mouth and told her to be quiet. You then made her lick and put her fingers into your anus.

 

  • Then, notwithstanding that you had just forcibly penetrated the complainant’s anus with your penis, you made her suck your penis. Again you obtained her submission to this act by threatening to perpetrate violence against her. This constitutes a further act of rape.

 

After you committed these crimes, you told the complainant to prepare a joint of marijuana for you. She went into the lounge room to do so, thinking that the sexual attack on her was at an end. However, you followed her into the lounge room where you perpetrated the remaining crimes. A summary of the conduct involved in these crimes is as follows:

  •  You perpetrated a further oral rape on the complainant. She initially refused but you again gained her submission by the threat of violence. During the course of this crime, she attempted to physically resist by moving away from you but you grabbed her by the hair and choked her around the neck to overcome that resistance. This violence constitutes the crime of aggravated assault.

 

  • You then placed your fingers into her vagina and anus simultaneously, and lifted her to prevent her moving away from you. You told her to stay still. These acts of penetration constitute two further counts of rape.

 

  • You then assaulted the complainant by grabbing her by the hair and pulling it, before placing one hand on her neck and applying pressure in order to choke her. You then perpetrated five further acts of rape which were constituted by penetrating her anus with your fingers on two separate occasions, with your penis on two other occasions, and then penetrating her mouth with your penis on one occasion. During this time you treated her roughly, and used actual violence on a number of occasions to ensure her compliance with your wishes. For example, on one occasion while you were penetrating her anus from behind, you hit her to the head twice with your hand.

 

Much of the conduct perpetrated in the lounge room was captured on CCTV footage. It is not suggested that you deliberately positioned yourself so that your actions would be recorded by the CCTV, and I will proceed on the basis that you did not do so. I have watched an edited version of this footage and it shows a significant portion of the conduct which occurred in the lounge room. The footage is disturbing and chilling, but it also demonstrates clearly the violent nature of your treatment of the complainant. It is apparent that you were completely oblivious to her welfare, personal integrity and dignity. She is obviously terrified and upset by what is happening to her and completely powerless to resist you. You treated her as an object and were clearly interested only in your own sexual gratification. Although you now claim to have little memory of these events, and suggest that your conduct was out of character and occurred in the context of your heavy intoxication, it is apparent from the footage that your actions were deliberate and focused, and not consistent with someone who is acting only because of the influence of alcohol. The fact that the conduct went on for so long and involved focused acts of violence in order to overcome resistance and ensure submission, would also mitigate against any suggestion that intoxication had a significant role to play in your commission of this crime. Of course, the fact of self-induced intoxication would not reduce your moral culpability in any event, but it might support a conclusion that your acts were out of character and hence there is a reduced need for personal deterrence. I reject any such suggestion. Your actions appear to me to be deliberate and controlled and constitute criminal conduct of a serious and concerning nature.

 This conclusion is supported by your explanation to police during an interview conducted the following day. You admitted in general terms engaging in sexual conduct, but claimed that it was consensual and that it had happened before. The general impression that you attempted to give the police was that your niece had instigated the sexual activity and was largely responsible for the nature of that activity. You downplayed your role. This included a denial of the use of violence except as part of the consensual sexual exchange. It is clear now that you were lying when you spoke to the police. The only conclusion available to me for those lies is that you were conscious of your guilt in respect of these crimes and were attempting to exculpate yourself from responsibility. This is consistent with your counsel’s explanation for that interview, which, when I raised it with counsel, it was explained to me that had panicked when the allegations were made by police. You can only have had that level of consciousness if you had a substantive recollection of what had taken place and your conduct, including your use of violence and coercion, was deliberate.

 Your niece has provided an impact statement to the Court. It is succinct, but also insightful. Although it was written less than one year after these crimes were committed, your niece recognises that your conduct has had a permanent effect on her life. She recognises also the wider impact of your conduct, not just on her, but also on other members of the family. She discusses the immediate consequences of the trauma inflicted by you, and confirms that she required hospitalisation for a significant period of time. All of this is consistent with what might be expected from conduct of this nature. It is difficult to imagine the terror, pain and confusion that the complainant must have felt during the three hours over which her ordeal took place. She also suffered some physical injury, which was mainly bruising consistent with blunt force trauma. The impact of your crimes on the complainant is and will continue in the long term to be significant. The experience of the Court accords with the complainant’s perception that her life has been permanently changed by what you did to her.

 Further, I think that the impact of your conduct on your partner and children should not be underestimated. You have by committing these crimes repudiated your responsibility towards your immediate family and denied your children the relationship with you and support from you to which they are clearly entitled. A further aspect of the impact on them, which must also be recognised, is that you committed this crime while your partner and children were sleeping in other rooms in the house. You also directed the 10-year-old child to leave the bedroom so that you could commence your attack on the complainant. It is difficult to imagine the distress and traumatic emotions which will arise once your children learn the detail of what you did, as they inevitably will. Their proximity to the commission of the crimes will undoubtedly exacerbate their sense of betrayal arising from your actions.

 The prolonged and degrading nature of the crimes and the significant violence perpetrated by you during their commission places this case into a particularly serious category. There are, of course, other aggravating factors which must also be taken into account. Your conduct constituted a very significant breach of trust. You were aware that the complainant suffered disability arising from her intellectual capacity. She had been taken into your house as a place of refuge. Further, she was your biological niece. She ought to have been able to rely on you for protection and support, and regard your house as a place of safety. You selfishly destroyed all of this and, in fact took advantage of the trust relationship to commit these crimes.

 Another particularly concerning and aggravating aspect of your conduct was your resort to attempted strangulation and other interference with the complainant’s capacity to breathe during the course of these events. This occurred when you put your hands around her neck as part of your assaults on her, and also when you forced insertion of your penis into her mouth, which, on occasions, caused her to choke. I have been provided with medical advice and scholarly articles concerning the dangerous nature of these acts. Dr Ritchey, a forensic pathologist, confirms that death can easily result when pressure is placed against the neck, as occurs when a person places his hands around another person’s throat and applies pressure. Death is most likely to result not from the restriction of breathing but from the blockage of the arterial blood supply to the brain, usually as a result of pressure applied to the carotid arteries. Such pressure can result in loss of consciousness in approximately 10 seconds, and death or severe injury can follow. Further, research has established that attempted strangulation which does not result in death or even visible injury can have long-term physical and psychological impacts and leave the victim susceptible to ongoing symptoms. In criminal assault, such acts are generally used, as they were by you in this case, to subdue and force compliance by the victim, without any real thought given to the danger inherent in such conduct. Their presence in the violence administered by you in the context of this offending is a highly disturbing and aggravating feature of your conduct, and is also directly relevant to the assessment of impact on the victim.

 You are 44 years of age. You have criminal history in this and other States which extends over a number of years. That history includes acts of violence, although you have not previously been convicted of an offence involving sexual assault. In 2013, you were sentenced for two serious assaults committed at a nightclub when you were very intoxicated. Your counsel has told me about your problematic childhood which included physical abuse administered against you by your mother. In adult life, you have, for a number of years, had a serious problem with the excessive consumption of alcohol and this problem is reflected in your criminal history. Your heavy drinking immediately prior to the commission of these crimes is consistent with that problem, but as I have already noted, your heavy intoxication does not explain your commission of these crimes, nor can it mitigate your moral culpability. Your counsel also asserts an ongoing history of depression extending to suicidal behaviour on at least one occasion, but concedes that there has been no formal diagnosis in this regard, and any problems you have with mental health are not relevant to the assessment of sentence in the sense described in Verdins.

 You have been in custody since 16 May 2018 and have not applied for bail. You initially entered a plea of not guilty and you were committed to this Court for trial. However, you indicated your intention to plead guilty at an early opportunity. Your counsel submits that you decided to plead guilty because of your shame, feelings of guilt and a desire to relieve your niece of the ordeal of giving evidence at trial. You will receive appropriate credit for this plea in the assessment of sentence.

 There can be no doubt in this case that the predominant sentencing considerations are general deterrence, denunciation of conduct of this type, retribution, and the need to vindicate the dignity of the complainant. I think there is also a significant need for personal deterrence. This particularly arises from the brazen and serious nature of your conduct, and your propensity to commit crimes, including these, when intoxicated. The only possible sentence is a lengthy term of imprisonment. In assessing the length of that sentence, I will have regard to the principle of totality. You committed many serious crimes, each of which deserve condign punishment. However, I will take account of the fact that the crimes were all committed during one related course of conduct, and the need for the final sentence to be proportionate to the totality of that conduct. I will also make provision for your early release on parole but, having regard to the aggravating features of the criminal conduct, the minimum time which you should serve in custody will exceed the statutory minimum.

 Mr A, you are convicted of each of the crimes to which you have pleaded guilty. I impose a global sentence of nine years’ imprisonment. The commencement of the sentence will be backdated to the 16 May 2018. I order that you not be eligible for parole until you have served five years and six months of that sentence.

 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, I am not satisfied of that matter and, accordingly, must make an order. The maximum reporting period is for the rest of your life. However, having regard to your age and taking into account that you have no prior history of sexual assault, and these crimes, as serious as they are, were committed during the course of a single episode, I do not think that the maximum reporting period is necessary. 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 15 years commencing from the date of your actual release from prison.