STATE OF TASMANIA v J B 17 APRIL 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr B, you have pleaded guilty to the following crimes: maintaining a sexual relationship with a young person under the age of 17 years, indecent assault, aggravated sexual assault and two counts of perverting justice. You have also pleaded guilty to a related summary offence of failing to comply with the storage requirements of firearms under the Firearms Act. I have agreed to deal with that matter under s 385A of the Criminal Code.
The crime of maintaining a sexual relationship with a young person was committed against your adopted daughter between 2002 and 2006. During that period she was aged between 13 and 17. You were aged between 36 and 40 at that time. The complainant was the daughter of your wife from a previous relationship, and you had adopted her after your marriage in 1999.
The crime is comprised of five specific unlawful sexual acts over the said period. However, these acts were committed within, and are representative of an ongoing and sustained course of conduct during the said period. You performed sexual acts against the complainant on many occasions during this period. Each of these acts was performed without her consent. She did not freely agree to your conduct, but rather did as you said because of your position as her father, and also because of her fear of you. The fear arose from your controlling and manipulative behaviour towards, and propensity for violence against the family generally. The effect of your controlling behaviour on the complainant was enhanced by her knowledge that you were proficient in a martial art. Although you were living with your wife and other children at the time that you committed this crime, your opportunity to engage in this conduct arose in part from your wife’s absence from the home for extended periods of time due to her employment. You were not in paid employment and the children were left in your sole care while she was away.
The specific unlawful sexual acts which constitute the crime are as follows:
(a) When the complainant was about 14, you entered her bedroom at night, penetrated her vagina with your finger and then performed oral sex upon her. You dealt with her protests by threatening to disclose to her mother lies that she had told about something else. You then offered her a weekly payment to allow you to continue to perform sexual acts upon her in the future. You repeated this conduct, in particular, the performance of oral sex, on a number of occasions.
(b) The next day you took indecent photographs of her. You made her remove some clothing, including her underpants, for the photographs.
(c) Shortly after she reached 16 years of age, you vaginally raped her in the kitchen of the home. This was not isolated conduct. You subsequently engaged in vaginal sexual intercourse with her approximately once per month.
(d) On the day after the first rape referred to above, you forced the complainant to perform oral sex on you, thereby committing a further crime of rape. Once again, this was not isolated conduct. Similar conduct occurred on other occasions
This conduct continued after the period to which the crime relates, which ended upon the complainant reaching 17 years of age. The conduct only stopped when she moved out of the family home after she had reached that age.
Count 2 was committed against your daughter’s school friend. The crime was committed when this child was 16 years of age and was staying at your house for the night. She was sleeping on a mattress on the floor. During the night, she woke to find you kneeling in front of her between the door and the mattress. You had placed your hand through her sleeve and were stroking her breast. When you saw that she was awake, you removed your hand and left the room. Her impression was that you were either fully or partially naked. This child was highly distressed and frightened. She left the home soon after.
Count 3 on the indictment relates to your biological daughter D. The crime was committed when she was 13 years of age. You were then 46 years of age. D had been in hospital for surgery. On her return home, you told her that you needed to check for a medical condition, made her take off her underpants and then placed your finger inside her vagina. Again, this was not isolated conduct. The context of the offending is that you had been perpetrating regular sexual abuse against D since she was 9 or 10 years of age. I make the point that you are not charged with that offending but that is the context in which the charged offence occurred. The charged offence was the last time that you committed an unlawful sexual act against her.
Your offending came to light a few months after the commission of count 3, when D complained to her mother about your abuse of her. Her sister, the complainant in respect of the first count, then disclosed your offending against her soon afterwards. You were interviewed by police but declined to answer any questions.
The crimes of perverting justice were committed within a few weeks after you became aware that your daughters had disclosed your criminal behaviour to the police. Count 4 relates to a text message which you sent directly to the complainant in respect of count 1, which contained a threat to disclose video and pictorial material which you claimed demonstrated that she had consented to your conduct. Your purpose, which was expressed by you in the message, was to have her retract her allegations. To ensure that she had actually received the message, you sent the same message to your wife asking her to pass it on to her. This act constitutes count 5. Your overall purpose in respect of both acts of perverting justice was to avoid prosecution for your crimes.
I have been provided with statements from each of the complainants setting out the impact upon them of your crimes. Unsurprisingly, the impact on each has been significant and long-lasting. Both of your daughters correctly consider that you have effectively stolen their childhood and permanently affected their lives. They record your controlling, manipulative and threatening behaviour and the fear each of them experienced at the time of your offending against them. Both still suffer ongoing symptoms, including nightmares and psychological distress. Your older daughter, the complainant in respect of count 1, in particular, has identified your manipulation of your position of trust in relation to her, in order to obtain what you wanted. Although the crime relating to the complainant in respect of count 2 was an isolated and relatively short lived event, it has had and continues to have a devastating impact on her. There have been a number of ongoing serious and prevalent consequences which have resulted in a diagnosis of post-traumatic stress disorder with symptoms of anxiety, phobia and compulsive behaviour. The symptoms are still operative and affect her day-to-day life in a very significant way. She requires ongoing therapy. These consequences are a foreseeable result of offending such as this. It is therefore appropriate to take this significant impact into account in sentencing.
You are now 52 years of age. You have no criminal record. You claim, as an explanation for your offending, to have realised at a relatively early point in your life that you had sexual desires consistent with paedophilia. Quite correctly, your counsel does not claim that this is to be seen as an excuse or should mitigate your conduct in any way. It is an explanation of desires, and you are not to be sentenced, of course, for having those desires. The punishment that will be inflicted upon you is because you acted upon them. You acted upon them by subjecting these women to very serious sexual abuse when they were children. Your counsel has explained to me that you had a relatively good start to your life. You pursued education at a high level, and were hopeful of going on with that and leading a law-abiding life. Well, you have not led a law-abiding life. It is now that you will have to face the consequences of your offending, and that is a matter that is directly attributable to your own conduct. You do not, of course, receive any mitigation because of the fact that this offending took place well in the past. The women concerned have had to live with the consequences of your offending since they were children, and those consequences have affected them and will continue to affect them for probably the whole of their lives. You have not faced the consequences of your offending until now.
Your counsel has made a submission that you are remorseful in respect of your offending as you sit here today. He has correctly conceded what I think is obvious, that this is an extremely belated sentiment. The remorse that would provide some mitigation for your conduct would be that demonstrated at the time that you were committing these offences. That did not occur. You have now admitted what you have done and you should receive appropriate consideration in sentencing because your plea of guilty will, as a matter of practical reality, mean that the complainants will not be required to give evidence against you in court. But in terms of any other consideration you should receive from a claim of remorse, there really is none to be had. The remorse that is relevant is the remorse that would have been seen as being true contrition and having insight into the consequences of your conduct upon the women concerned, at the time that this offending had actually occurred. That is not apparent from the evidence.
Your conduct in the commission of these crimes is shocking and abhorrent. You have affected the lives of all three women in a most serious and permanent way. The serious breach of trust is obvious. You were required to protect and nurture your daughters, but instead you used your paternal position and power to subject them to serious abuse. The crimes against all three involved a serious breach of trust. Your only concern was to achieve sexual gratification. The crime contained in count 1 involved sustained and repeated abuse of your daughter over a significant period of time. The abuse against all three women occurred during, and significantly impacted upon, a developmentally important part of their lives, their adolescence. The perverting justice crimes were serious, not just because they had a tendency to undermine the proper administration of justice but also because they represented a continuation of the controlling and manipulative behaviour that had been used by you to commit the sexual crimes in the first place. General deterrence, denunciation and vindication of the complainants are important sentencing considerations.
JB, you are convicted of the crimes and the offence to which you have pleaded guilty.
You are sentenced to a global term of imprisonment of 10 years, which will be backdated to 30 June 2016*. I order that you not be eligible for parole until you have served 6 years of that sentence. I regard that as the minimum period that you spend in custody, having regard to the seriousness of these crimes. The global term relates to the crimes on the indictment.
On complaint 11783/17, I impose no further penalty. I order that the firearms be forfeited to the Crown.
In respect of the counts on the indictment, 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. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. Pursuant to s 24(3) of the said Act, you are required to comply with the reporting requirements of the Act for the rest of your life, or for such lesser period as I determine to be appropriate. Given the circumstances of this offending, I am not able to determine that a lesser period is appropriate. Accordingly, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for the remainder of your life.
[*On 6 June 2019 his Honour ordered that the sentence which was imposed on 17 April 2019 be corrected by deleting the backdating date of 30 June 2016 and substituting the date of 7 December 2017.]