STATE OF TASMANIA v E K 21 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr K, you have pleaded guilty to two counts of indecent assault.
You committed these crimes in 1985, when you were 18 years of age. The victim of the crimes was your 12-year-old sister. At the time, you were still living at home with your parents, your sister and your other siblings. It would seem that your upbringing and family life at that time was characterised by strict adherence to the principles of the religious faith of your parents, which I assume you shared at that time. However, there were also clearly a number of dysfunctional aspects to family life. This included a strict attitude to discipline and inappropriate sexual behaviour, including towards your sister, on the part of your father and older brother.
You committed the crimes to which you have pleaded guilty in the attic room of the family home while your parents were absent. The indecent assaults were constituted by sexual conduct perpetrated by you upon your sister while you were both naked. You placed your penis into her mouth, and then touched and kissed her breasts and kissed her vagina. You then lay on top of her and placed your erect penis on her vagina. While in this position, you masturbated to ejaculation.
The conduct is of a serious nature. The penetrative act was particularly degrading and would now fall within the definition of sexual intercourse. It did not do so under the definition applicable at the time the crimes were committed. The ejaculation was also degrading and confusing for the child. She experienced immediate fear of falling pregnant. She did not consent to your conduct. Although, apart from the bodily violation inherent in these acts, there is no allegation that you engaged in overt violence or threatening conduct against her, the reality is that she was only 12-years-old and was your little sister. The disparity in your ages and the nature of the relationship meant that she was not in a position to resist your assault or assert her own views about what was taking place. On the contrary, she was entitled to trust you to protect her and treat her well. By committing these crimes, you breached that trust in a most serious way. Further, I do not know how much actual knowledge you had at that time about other abuse to which she had been subjected by your father and your brother, but I suspect that, at that the very least, you had some general understanding of the existence of this abuse. In that sense, you took advantage of her vulnerability and your conduct undoubtedly compounded the impact of the abuse to which she was already subject within the family.
I have, of course, heard your sister’s statement of impact. She read that statement in Court. It is clear to me that she has laid open in a public forum her innermost thoughts and feelings about what was done to her when she was a child, and the consequences that she has experienced throughout her life as a result. This includes the contradictions that conduct has caused in her relationship with you. Her sense of betrayal is palpable. You are not solely responsible for the impact on her, but your conduct is likely to have contributed to it in a substantial way. Despite all that she has achieved in her life since this happened, your sister’s wounds are still obviously raw and immediate. This is a foreseeable and understandable consequence of conduct such as this and the breach of trust inherent in same. The long term and often devastating consequences of sexual assault, particularly when perpetrated on children, is well known to this Court and is a factor of significant relevance in the formulation of sentence. There is a need to vindicate the complainant, and to deter others from similar conduct.
You are now 52 years of age. Apart from these crimes, you have no criminal history whatsoever. You live with your wife and children and operate a family business. It would seem from the many references provided to me, and even from the complainant’s own testimony, that you have lived a life of good character since committing these acts.
However, these were serious crimes. The only appropriate response is a sentence of imprisonment. The only question for me is whether that sentence should be wholly or partially suspended. In assessing that question, it is appropriate to take into account that you committed these crimes when you were 18 years of age. There is no doubt, in my mind, that you were old enough to know better and to bear responsibility for your conduct. You must also have realised then that your sister would be harmed by what you were doing. You appropriately bear significant culpability for your conduct. However, I also accept that it was a time in your life when you probably lacked maturity, and may also have been influenced by the poor example set for you by your father and brother. Your good character in the intervening years and now, is in your favour. Further, I will also have regard to your plea of guilty and your refusal to contest or defend yourself in these proceedings. It is apparent from what both you and your sister have said that you and she have maintained a good relationship over the years but that in recent years she has raised this conduct with you, which has caused you to acknowledge your conduct to your wider family and your church community. I acknowledge that you and she have a different perception of the success and benefit of what has transpired as a consequence of this. I do not have the full detail of this history and I am not in a position to make a judgment in that regard. It would, in any event, be inappropriate for me to do so. However, I accept that you do experience genuine remorse and that you have made genuine attempts to respond appropriately to the consequences of your conduct. Your admissions of responsibility, both before and since the charges were brought against you, are consistent with these conclusions.
Taking all of these matters into account, I am of the view that a wholly suspended sentence of imprisonment represents an appropriate punishment in this case. The imposition of a sentence of imprisonment marks the seriousness of the offending, denounces the conduct, and recognises the real and ongoing impact experienced by the complainant. The suspension of that sentence is an act of mercy arising from your subsequent and ongoing good character and your appropriate response to the charges, in particular, your early plea of guilty. Of course, it is a real sentence of imprisonment and if you do not comply with the conditions of suspension, you can expect to serve the sentence.
E K, you are convicted of the crimes to which you have pleaded guilty and sentenced to a global term of 18 months’ imprisonment. That sentence will be wholly suspended for a period of two years on condition that you are not to commit an offence punishable by imprisonment during that period.
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. That means that I have to be satisfied that you do not pose any risk of committing a reportable offence in the future. In this case, I am satisfied of that matter. In arriving at that conclusion, I have taken into account your demonstrated good character since the commission of these offences, the lack of any allegations of further offending, and your response to these allegations both before and since the matter was brought to the attention of the authorities. Accordingly, I decline to make an order under the said legislation.