THE STATE OF TASMANIA v IWM 19 JUNE 2025
COMMENTS ON PASSING SENTENCE SHANAHAN CJ
IWM you have pleaded guilty to one count of rape contrary to s 185(1) of the Criminal Code that on 18 May 2023 you had sexual intercourse with another person, namely CE without her consent by digitally penetrating her whilst she was asleep.
You were born on 6 June 2005 and were 17 at the time of the offending and are currently aged 20 years old. The complainant, CE, was born on 29 July 2008 and was aged 14 at the material time.
Between late March and early May 2023, you and the complainant were in a short-term relationship, and that relationship is not considered a significant relationship under the Relationships Act 2003. During your relationship with CE you engaged in sexual intercourse on a number of occasions.
On the evening of 17 May 2023, you spent the night at CE’s residence. You both slept in the complainant’s bed which was located in a caravan adjoining the main residence.
At approximately 7:00am on 18 May 2023, you woke up in the bed that you were sharing with the complainant. CE was asleep on her side, facing away from you, she was wearing a hoodie and underwear. You reached over the complainant and placed your hands inside her underwear, pulling them down slightly. At this point, CE woke up but pretended to be asleep.
You inserted two fingers into the complainant’s vagina without her consent. Your fingers remained there for approximately 40 seconds before you removed them. CE began to stir and you both got out of bed and began to get ready for the day. Neither of you mentioned what had occurred.
Some two weeks later, CE confronted you in a Snapchat message. During that conversation, you apologised and told the complainant that it was a sexual habit that you could not control.
Your relationship ended shortly after this. On 21 August 2023, CE disclosed the incident to her school social worker during a counselling session. The matter was referred to Tasmania Police. On 20 December 2023, CE participated in a video-recorded interview with Tasmania Police, and she also disclosed photographs of her Snapchat exchange with the accused.
On 4 March 2024, you attended Sorell Police Station and voluntarily participated in a video-recorded interview. You told police you knew the complainant, that you had been friends and dated for a short period of time. You stated that the relationship was sexual in nature and that you would have had sexual intercourse once or twice each week.
You told police that while you were dating, you would sometimes spend the night with the complainant. You admitted that you spent the night with her in the caravan at her house on the evening of 17 May 2023.
You stated that you and the complainant were planning to have sexual intercourse, but did not, because CE was having her period. You woke up the following morning and, being bored out of your mind, you just did it. You thought CE was asleep at the time. You inserted one or two fingers therein, they were about halfway in – around your second knuckle. You told police you realised how fucked up the situation was and you removed your fingers. You agreed that CE did not give you consent and you agreed that you had seen the Snapchat messages that the complainant had disclosed to the police.
There is no victim impact statement before the Court.
You have no prior convictions.
It was put by Ms West for the Crown that the crime of rape is inherently serious in nature.
Ms West accepted that these acts are committed by a young man with no prior convictions in the context of a single act, but submitted that it should not be overlooked that CE was asleep at the time of the offending, which placed her in a very vulnerable state. It is said that you were clearly someone that CE trusted, she let you stay with her, and you betrayed that trust with your offending. It’s also said that it is apparent from the material facts that once the offending concluded, CE did not feel that she was able to raise the matter, and when it was occurring, she did not feel able to prevent it at the time.
Ms West also accepted that you have taken responsibility for your offending and expressed remorse, and, of course, that is not always the case. Ms West took me to the observations of Jago J, in State of Tasmania v TSF to the effect that rape, irrespective of the manner of the penetration, is a form of violence that involves invasion of bodily and emotional integrity. It was submitted that, due to the serious nature of this type of offending and the difficulties associated with obtaining convictions for offences of this type, the general deterrence and denunciation are still significant sentencing considerations. Further, that any sentence imposed should also vindicate the complainant and reflect the harm, or potential for harm, arising from the interference with her bodily autonomy.
I do not have a victim impact statement but I infer from the facts that the incident would have been highly distressing, especially for a 14 year old girl such as CE was at the time, and that is reflected in the manner in which the offending was reported.
I was also referred to DPP v NOP [2011] TASCCA 15, which dealt with the rape of a child of six by a youth of 15 years and six months with a reduced mental age, as an authority for offences of youth rape and was taken to the remarks of Evans J at 46. Ms West acknowledged that the offending in DPP v NOP was “an entirely different type of offence, but it indicates that the – suspended detention is something that is – well, for offences of this type, imprisonment is not an unusual sentence even for youth offenders”. I accept that general deterrence and denunciation remain integers that must be considered in the sentencing calculus in this matter. I accept that I should consider what is an appropriate sentence to provide the victim with appropriate vindication.
In mitigation it was put that the period of offending was under a minute and that it was a single act. Emphasis was placed on the complainant’s account to police that confirmed from the moment of her realising that you were touching her, until the time you desisted, and CE feigned waking up was roughly some 40 seconds’ duration, the timeframe of the actual act is less than 60 seconds.
You were 17 at the time of this crime, you are now 20. You have no prior matters or convictions. You live with your mother and stepfather and your two siblings who are the product of your mother and stepfather’s union. I am told by Ms Mainwaring that they provide a very stable family environment for you. You are an only child, and your father had left you and your mother when you were only three, but your relationship with your stepfather has developed into a very positive one now, and so you have the benefit of your stepfather as a positive male role model.
I am told you were a good student and completed year 12. You have an interest in two areas: mechanics, in which you have undertaken a course, and music. I understand that you are interested in music production and often make or record music at home.
You work at Inghams and have done so since August last year. I understand that Inghams is a chicken processing plant at Sorell. You have increased your hours to four days a week and I understand you are working towards full-time employment,
I am also told that you do not have any physical or mental health issues. You do not abuse alcohol or drugs, and you have a number of friends in your peer group who are, I am told described as prosocial.
Your explanation and response to the charge, or the crime, communicated by your counsel was, that in hindsight, you did not think before you acted. You recall waking and reaching over to touch the complainant, obviously your then partner, impulsively without any thought. You quickly realised what you were doing and desisted.
I am told by Ms Mainwaring that in a past relationship, prior to your relationship with the complainant, you had had a girlfriend, and you and that girlfriend had had a prior agreement that any physical acts or intimacy could be initiated without verbalisation. I am told this was a spontaneous act to which you gave no thought.
You have described feeling very upset about what occurred when you realised your wrongdoing. You have acted to minimise any trauma to CE by your response to the allegation, which commenced initially with your very early apology to her, which is not unimportant, when she raised it with you, which was a fortnight later. I understand that whilst that saw the end of your relationship with the complainant, I am told you remained friends for a period of time.
You gave clear indications of remorse. You made admissions to police when you attended an interview voluntarily at the police station. You made an early plea of guilty in the Magistrates Court jurisdiction. I am told, on your behalf, that the act was of very brief duration and it is an isolated incident, an impulsive act without any thought.
I accept that rape is inherently a very serious offence. I am persuaded that in this case because of your relatively young age at the time of the offending, your remorse, your acceptance of responsibility, your apology to the complainant, some impulsive elements in the offending itself, the absence of any prior convictions and the single short act that constitutes the offence, that this case warrants an individualised approach to sentencing. I do, however, acknowledge the need to address general deterrence, denunciation and vindication of the victim. There is a continuing need to make young men, such as you, aware of their criminal responsibility for sexual offences. Balancing these competing considerations presents a challenging array of contending factors that need to be reconciled in any sentencing disposition.
I agree that the seriousness of your crime reduces the mitigation that arises by virtue of your youth but in my view, youth remains a sentencing factor of some weight. One reason that the law generally allows lenience to young offenders is because being immature they “are more prone to ill-considered or rash decisions”: see R v McGaffin [2010] SASCFC 22, A Crim R 188 at 210, [69]. To that list may be added impulsive actions.
You are very lucky that you continue to enjoy the support of your mother and stepfather, and that they remain supportive.
Whilst I have no victim impact statement, a crime of this nature is likely to have had a profound effect on the complainant for a long time irrespective of your relationship within her in the immediate aftermath of the offending. That is because offences of this type are an obvious breach of trust and that has significant consequences, perhaps especially for a 14 year old complainant.
I have received a Home Detention Report, dated 26 May 2025. You have been assessed as suitable for home detention.
Whilst offences of this nature are normally dealt with by way of an immediate term of imprisonment, I have determined that the conflicting sentencing considerations in this case are best addressed by making a home detention order. That will not be without a significant impact on your life, curtailing and restricting your movement but will allow you to continue your employment.
IWM, you are convicted on one count of rape contrary to s 185(1). I impose one sentence.
I make a home detention order with an operative period of 18 months from today. I specify the premises in which you are to live as [address specified]. I impose all the core conditions contained in s 42AD(1) of Part 5A of the Sentencing Act 1997. I also impose the following special conditions being Option 2 that is recommended in the Home Detention Report provided to the Court, that is:
- you must immediately upon your release from Court, attend the Community Corrections office at Hobart for induction in respect of this order;
- you must during the operational period of the order, remain at [address specified] during the period between 7:00pm and 5:00am unless approved by a probation officer;
- you must during the operational period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times;
- you must submit to the supervision of a Community Corrections officer as required by the officer;
- you must not during the operational period of the order, take any illicit or prohibited substances, illicit and prohibited substances include:
(a) any controlled drug as defined by the Misuse of Drugs Act 2001;
(b) any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication; and
(vi) you must not, during the operational period of the order, consume alcohol and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test, or other test, for the presence of alcohol.
This is a class 3 reportable offence under the Community Protection (Offender Reporting) Act 2005 and therefore section 6 of that Act applies. The only circumstances in which an order under s 6 is not required is when the Court is satisfied that the accused does not pose a risk of committing a reportable offence in the future.
Having regard to the nature of this offending, I am unable to be satisfied that there is no risk that you will commit a reportable offence in the future, however much that may seem unlikely. Thus, whilst I am obliged to impose a reporting period, I do not think the reporting period should be lengthy.
I 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 the Community Protection (Offender Reporting) Act 2005 for a period of 18 months from today.