STATE OF TASMANIA v HJS 6 MARCH 2023
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr S has pleaded guilty to four sexual crimes that he committed in 2014 when he was 19 years old. The victim was a male relative aged 11 who was staying at the home of Mr S and his parents during a holiday.
One evening Mr S and the complainant both went outside to urinate in the middle of the night. Mr S faced the complainant, showed him his erect penis, moved behind the boy, whose pyjama trousers were down near his knees, spat on his hands to lubricate his fingers, and attempted to insert his penis into the boy’s anus. The boy told him to stop. He still felt the tip of the penis around his anus. He said “No.” Mr S continued to try to insert his penis. The boy continued to tell him not to, and ultimately he stopped. He has pleaded guilty to attempted rape.
They went back inside. Mr S asked the boy to suck his penis. The boy did not want to, but he complied. After a time he said, “No more, I won’t do it.” He said he wanted to stop, and they stopped. Mr S has pleaded guilty to rape in respect of that episode. He accepts that the boy did not freely agree to suck his penis, given the age disparity and the context.
Next, Mr S asked the complainant to give him a “hand job” instead. He placed his hand around his own penis and moved it up and down to show the complainant what he wanted him to do. Then the complainant put his hand around Mr S’s penis and moved it up and down. After a while the complainant said, “No more” and stopped. In respect of that act, Mr S has pleaded guilty a crime called “Indecent act with or directed at a young person”.
The next morning, when the complainant was having breakfast, Mr S got him to accompany him into a bedroom, and asked him if he wanted to do it again. The complainant was scared but agreed. Mr S promised the complainant that he would give him a reward afterwards. He pulled his pants down, put his own hand around his erect penis, and showed the complainant what he wanted him to do. Then the complainant placed his hand on Mr S’s penis and masturbated him until he ejaculated. The boy was too young to understand what had happened. In respect of that conduct, Mr S has pleaded guilty to another charge of “Indecent act with or directed at a young person”.
More than five years later, as a result of something that happened at his school, the complainant told his mother about the things that Mr S had done. The crimes were reported to police officers in another State. In accordance with police practice in that State, the complainant phoned Mr S and their conversation was recorded. The complainant asked Mr S why he had sexually abused him. Initially Mr S claimed that he did it for the complainant’s benefit. The complainant said that he never wanted to do it. Then Mr S apologised, asked if the complainant was okay, and asked whether he wanted to talk about anything else. He went on to say that he had been regretting it ever since. He asked if he could apologise. Some days later the complainant’s mother also phoned Mr S. Again the call was recorded by police officers. Mr S said that the act of oral sex was “one hell of a mistake”. When asked about the two “hand jobs” Mr S said that it was terrible, and that he had been regretting it ever since.
Mr S attended a Tasmanian police station in May 2020 by appointment, participated in a video recorded interview, and admitted that the complainant had been staying with his family in 2014. However he denied the allegations. In April 2021 he again attended the police station by appointment. On that occasion he was arrested, charged and bailed. He elected to have the complainant’s mother and a police officer give evidence in preliminary proceedings, which were conducted in December 2021. In September 2022 the Crown were advised that Mr S would plead guilty to the charges.
Mr S’s conduct has had a significant impact on the complainant. I have received a victim impact statement from him. He has ongoing psychological symptoms that I do not need to discuss in detail. He has been seeing a psychologist for over two years. His ambition is to join the Australian Defence Force but the recruitment authorities have asked him to delay and have said he would not be acceptable at this stage while he is still having counselling. It has been suggested that he should re-apply when this case is behind him.
Mr S is now 27 years old. He has no prior convictions. He lives with his parents. He suffers from autistic spectrum disorder. He is of average intelligence but the impact of his autistic spectrum disorder appears to be extreme. That disorder is so severe that he is unemployed, does not leave home without his mother, and has no friends or even acquaintances except for people that he interacts with using the internet and social media. He does not drink alcohol, smoke tobacco or use other drugs. He is sexually inert. He apparently has had no sexual experiences at all before or since the incidents that I am concerned with.
At the age of 19, he was extremely immature and sexually naïve. He had little or no understanding of the attitudes and expectations of other people in relation to ordinary events in general and sexual arrangements in particular. He had an understanding that his conduct was wrong but he clearly did not understand just how wrong his conduct was. His actions during the night when the first three crimes were committed were opportunistic, although there was some planning in respect of the final act, in the morning after the night before.
He has not offended in any way since the episode in question. It is clear to me that he had a much lower level of criminal culpability than an ordinary 19 year old. It is also clear that sending him to prison would be an act of cruelty that he simply would not cope there, and that he would likely to be bullied there, to say the least.
These were serious crimes. It is appropriate that I pronounce a sentence of imprisonment. Because of Mr S’s autism spectrum disorder and the severity of it, I think that I should impose a significantly shorter sentence than I would have imposed if these crimes had been committed by an ordinary 19 year old, and that I should suspend the whole of that sentence. I do not think a home detention order would be a punishment from Mr S’s point of view because the life that he leads is precisely the sort of life that a person leads when subject to a home detention order. I do not think it is appropriate that I have him assessed for suitability for community service. He is a person who apparently is practically unemployable and who has difficulty leaving home without his mother, so that is hardly likely that he would be considered appropriate for community service.
There are two orders that I will make other than the suspended sentence. I will make a community correction order with supervised probation so that, if a probation officer can help him in any way, that help will be available. I will also have to make a order placing him on the sexual offenders register. I have to do that as I cannot rule out the possibility of him re-offending should circumstances create a situation where he might.
HJS I convict you and sentence you to two years’ imprisonment. I suspend the whole of that sentence on condition that you commit no offence punishable by imprisonment for a period of twelve months. I make a community correction order for an operational period of eighteen months commencing today, with special conditions as follows:
During the operational period of the order:
- You must submit to the supervision of a probation officer as required by the probation officer;
- You must attend any educational or other programs that a probation officer directs you to attend;
- You must submit to psychological or psychiatric assessment or treatment as directed by the probation officer.
I direct you to report to the Office of Community Corrections in Hobart today for the purposes of that community correction order.
I order that the registrar appointed under s 42 of the Community Protection (Offending Reporting Act) 2005 place your name on the register under that Act and that you comply with the reporting obligations under that Act for 9 years.