STATE OF TASMANIA v J A R 30 MAY 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to committing an indecent act with or directed at a young person under 17 years. The crime was committed at the defendant’s home in about January 2018. The victim of the crime is the defendant’s half-sister, R, who was 5 years old at the time. The defendant was 20. The crime was committed in a motor vehicle parked in the front yard of the property. The defendant was in the back seat and was smoking cannabis. His younger brother was in the front seat. It seems that the defendant was looking at his mobile phone and began masturbating. While he was doing that, R got into the front of the car, and sat on the console facing the defendant. He continued to do what he was doing. At one point he touched R on the leg, and ejaculated a short time later, with some of the ejaculate going onto R’s arm and her clothing. The offending came to light on 15 February 2018 after R’s participation in a personal safety session at her school, which included the topic of appropriate behaviour in relation to students’ private parts. R told her father what had been talked about, and he told her that if anything like that happened to her, she was to speak to him or her mother. Later that evening R told her father that something had happened involving the defendant. Details emerged and police were notified. R was interviewed and was able to describe what had happened. The defendant was interviewed but initially denied the allegation. As he was leaving the police station, he said he had more to say and was then offered an opportunity to participate in a second interview, which he accepted. In that interview he essentially admitted what had happened. I am told that R has become quite a troubled young girl and is undergoing counselling. However, there are serious allegations of misconduct towards her, made against another person, and the impact on her of this incident is very difficult to assess. The Crown does not assert that the defendant’s acts of masturbation were directed at the complainant, but the case is put on the basis that his indecent act was done with the complainant, in the sense of it being done in her presence.
I have had the benefit of detailed submissions from the defendant’s counsel. I have a pre-sentence report dated 14 June 2018 from an appearance in the Magistrates Court, an update of that report prepared in light of this offending, and a detailed psychological report dated 29 January 2019 from Dr O’Donnell. The defendant is now 22 years old. He has a recorded history of offending going back to March 2018. There are some offences of dishonesty and some drug-related but primarily the record consists of driving offences. Driving whilst disqualified is a prominent feature. In June 2018, for a miscellany of offences, but primarily for driving whilst disqualified and evading police, the defendant was sentenced to six months’ imprisonment made cumulative to an activated two months suspended sentence, three months of which was partially suspended on conditions. The suspended term of imprisonment was imposed in March 2017, and it follows that he was the subject of that order at the time of this offending. Dr O’Donnell’s report reveals that the defendant’s history reflects early sexualisation and early engagement in sexual intercourse. He became a father when he was 16 with an 18 year old girlfriend. He strongly asserted sexual interest in adult women, and no sexual interest in children. Dr O’Donnell notes what seems to be a high level of sexual boundary issues within the family. The defendant was found to have a full scale IQ score of 55, an extremely low score. Across the range, his scores were consistent with mild intellectual disability. Dr O’Donnell notes that in addition to his disability, he was using cannabis at the time of the offence, but there are no indications that he was psychotic. In her opinion, the circumstances of the offence are more reflective of family dysfunction than mental illness, that dysfunction involving poor sexual boundaries between siblings, and early sexualisation within the family. She says the defendant does not present with overt indicators of an emerging pattern of sexually violent offending behaviour, but his criminal history and associated risk factors are suggestive of a risk of general re-offending, in the absence of stable influences. In that respect, I note that a probation order of 12 months’ duration made to commence on his release from prison, has now expired. I have an updated Community Corrections report dated 22 May 2019. It notes the defendant as saying that on reflection, he should have removed himself from the presence of his siblings before engaging in the act of masturbation. He denied being sexually attracted to underage females, and expressed a desire for the court to be made aware he is remorseful for his actions. He is aware he should not have committed the offence, and notes his regret towards the victim. The probation officer has already referred the defendant for sexual boundary counselling for which he is presently engaged with Relationships Australia. Notwithstanding these matters, the long-term risk of sexual recidivism is identified as being in the average range. The report summarises a number of previous community-based orders and contact with Community Corrections. His engagement and response has generally been good. The defendant has the assistance of an NDIS support worker for 16 hours per week, from whom I have a report. She notes his extremely low IQ and the fact that he faces multiple barriers with inter-generational influences and upbringing. She says he has a limited understanding of his everyday barriers and challenges, and has no fear of the consequences of his actions when off his medication. He has regular drug and alcohol education under the auspices of the Aboriginal Corporation and attends weekly education sessions at the library. I take into account his plea of guilty and the expressions of remorse and insight. I take into account the defendant’s personal circumstances. Given those circumstances, and the circumstances of the offending, I think an individualised approach is justified.
Mr R, I think you understand clearly now that what you did was quite wrong. I accept that you now realise that you ought not to have been doing what you were doing in the presence of your sister. Generally this is a serious crime but I am not going to sentence you to a term of imprisonment on this occasion. You will though have to do some community service and you will be under the supervision of a probation officer who may require you to do some courses and the like. You are convicted. I make a Community Corrections order for 18 months. You have to report to a probation officer at 46 Mount Street, Burnie by 5pm on 31 May 2019, that is tomorrow. Special conditions of the order are that you attend educational or other programs and submit to the supervision of a probation officer as may be directed or required by the probation officer, and you must satisfactorily perform community service for 120 hours. Given the reports, I cannot be satisfied that there is no risk of similar offending within the terms of the Community Protection (Offender Reporting) Act and I direct that your name be placed on the Register. You will have to comply with the conditions for a period of two years from today.