STATE OF TASMANIA v J A S 24 OCTOBER 2019
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, aged 24 years old at the time of the offending, has pleaded guilty to one count of sexual intercourse with a young person under the age of 17 years.
The complainant, aged 14 at the time, had been the subject of a care and protection order since 2009.
In early 2017 she was living with her grandmother.
In January 2017, Child Safety Services became aware that the defendant had commenced spending a lot of time with the complainant who was also his cousin.
Between 1 March 2017 and 13 April 2017 the complainant and the defendant would visit each other regularly, and on occasion the defendant would stay at her grandmother’s residence.
On one night between 1 March 2017 and 13 April 2017 the defendant was having drinks at the grandmother’s house and stayed the night. He stayed in the complainant’s bed and the following morning when the complainant’s grandmother got up and went into the bedroom to collect laundry, she saw the defendant and the complainant having sexual intercourse. She left. Soon after, the complainant and the defendant came out of the bedroom. The complainant’s grandmother told them what they were doing was wrong because they were cousins. They said to her that they knew it was wrong and the complainant told her that they were in love.
The defendant and the complainant maintained contact until 5 April 2017 when the defendant was served with an application for a restraint order made by Child Safety Services. An interim order was made preventing contact between the complainant and the defendant the following day, with final orders made at a later date. That was the end of the relationship between the complainant and the defendant. The order has now lapsed and the relationship, and I am informed that the relationship has not re-commenced.
The defendant was charged and his first appearance was in the Magistrates Court on 16 May 2017. He has pleaded guilty, as I have said. There is no victim impact statement.
The defendant has no relevant prior convictions.
He attended high school to Year 10. However he did so through a special education program conducted by the school as he has a significant intellectual impairment. This is confirmed in reports I have seen from Mr Michael O’Donnell, Registered Psychologist and from Doctor Damien Minehan, Consultation Clinical Psychologist.
As to the offending I am told that the defendant did not consider he was acting unlawfully on the basis that the sexual contact was consensual.
The defendant does have a prior conviction for aggravated armed robbery for which he received a suspended sentence which is breached by the current offending. I am well aware of the circumstances of that crime as I sentenced his older co-offenders, two of his cousins.
In my view the current offending is so different in nature that I am of opinion that it would be unjust to activate any part of the suspended sentence.
I am required to make an order under the Community Protection (Offender Reporting) Act, and I will turn to that in a moment.
The defendant is convicted on the count to which he has pleaded guilty. I impose a single sentence of six months’ imprisonment, which sentence I wholly suspend on condition that he commit no offence punishable by imprisonment for a period of 18 months.
As to the Community Protection (Offender Reporting) Act, unless I am satisfied that the defendant does not pose a risk of committing a reportable offence in the future, I must make the order. I am satisfied of that matter in this case. In arriving at that conclusion, I have taken into account that the defendant has accepted responsibility for his conduct, and I also note the lack of any suggestion that he has committed any similar conduct since that time. Certainly he has not been convicted of any further offences involving any form of sexual conduct. I accept that after the protection order was put in place the defendant made every endeavour to avoid the complainant and to comply with the order, despite her persistence. He has moved onto another relationship and has a child. I am satisfied that there is no risk that he will commit a reportable offence in the future. I decline to make an order under the Act.