STATE OF TASMANIA v J D 22 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr D, the jury has found you guilty of one count of rape. I am satisfied that the factual basis of sentencing accords with the evidence of the complainant. It is obvious that the jury accepted her as a credible and reliable witness as to the events of the morning in question. I agree with the jury’s assessment about that. I also found her to be a credible and reliable witness. In any event, there is no other factual basis on which it would be appropriate to impose sentence.
A summary of the events is as follows. The complainant was, at the time, of course, the partner of your brother. It seems that you all lived in close proximity. You had all been out in the Hobart CBD the previous night at a social occasion, and it is clear that you all – in particular you and the complainant – had consumed a considerable amount of alcohol. However, she had arrived home earlier than you, and had slept the night at the residence in which you were staying with a friend. I am satisfied, to the extent that it is necessary to be satisfied of this, that she had simply slept in Mr W’s bed as a matter of convenience, probably because she was affected by alcohol and it was a convenient place to sleep. What you made of it I have no idea. I do not think that that bears on the question of your culpability to any significant extent. You arrived home later than her, and it is likely that, at the relevant time, you were more affected by alcohol than she was. But again, I do not think that the extent of your intoxication affects your moral culpability in respect of this crime. It may explain why you were less inhibited than you otherwise would be, but it does not provide any mitigation for your offending. I am satisfied that, at the time the relevant events occurred, the complainant had largely passed through the effects of alcohol and was substantially sober. That, of course, would have undoubtedly increased the impact on her of the commission of the crime.
At some point, you offered her a lift home. The relevant events occurred during the course of that journey when you were about 800 metres from the home that she shared with her partner, your brother, the vehicle was pulled over by you. Why that occurred, I do not think matters very much. The fact of the matter is that after that had occurred, you then attempted to initiate sexual contact with her, probably at that time hoping that it would be consensual. But there is absolutely no doubt that within a very short time of you doing so, she had made it abundantly and expressly clear to you that she was not interested in having sex with you. She told you “No” on numerous occasions, and repeatedly pleaded with you to stop. Of course, you did not stop. You were bigger than her. She was in a confined space in the passenger seat of the vehicle, and you had pinned her down with the weight of your body.
I am satisfied, of course, and she did not suggest that you used any overt violence over and above the violence that was inherent in the bodily invasion that is constituted by rape. The force used by you consisted of the pressure that was applied by the weight of your body, and by the force necessary to commit the crime itself. You inserted your penis into her vagina on more than one occasion. You had reinserted it after it had come out. I am satisfied, and this was consistent with the complainant’s evidence in any event, that you did not ejaculate inside her. She had said something to you about not having taken any contraception measures. She had said that in an effort to persuade you not to continue with the commission of the crime – but obviously it did not have that effect. When the crime was complete, you drove her back to her home and she obviously stayed at her home thereafter.
The impact on the complainant was described by her in a thorough, thoughtful and, in my view, courageous reading of her victim impact statement to the Court. The effects of this crime, as she described, are entirely consistent with what might be reasonably expected from a crime of this nature, and entirely consistent with the experience of the courts in cases such as this. Rape is a terrible crime of violence. It involves the invasion and the stripping away of a person’s bodily integrity, and has very profound and longstanding psychological and sometimes physical consequences. The complainant described in detail the types of consequences that she has experienced to the present time. It is to be hoped that she will be able to recover, but I do not think that it can be expected that that recovery will be easy or achieved in the short term. A point that the complainant made that entirely accords with my perception of this very sad case, is that your selfish and thoughtless act, which was perpetrated over a few short minutes, has forever changed, adversely affected, and perhaps even destroyed, two young lives. Her suffering has included the ending of her relationship. I am sure that this crime has had a significant impact on others, the wider families and others who have been drawn into these events by their relationship to each of you.
I am not suggesting for a moment that you anticipated any of that. You undoubtedly did not. From what I have been told, you are a young man of otherwise good character with enormous potential in your life, and you have managed to, at least for the time being, significantly affect and change that as well. How you recover from this, of course, will be a test of your own character.
As far as cases of rape go, I do regard this as a relatively serious case. The complainant was vulnerable because she was in a vehicle with you, and hence in a confined space. That needs to be combined with the fact that she was entitled to trust you, being the brother of her partner. There is an aspect of a breach of trust to this, but I am not suggesting for a moment that it should be put in the same category as other breaches of trust involving parental abuse and cases of that nature. But there was some aspect of trust and that is why, when combined with the fact that the complainant was in the vehicle being drive home, she was vulnerable. I have already made comment about the force used. I will not go through that again.
Of course, it has increased the impact on the complainant that at that time she was being driven back to her own home, which ought to have been a place of safety and comfort for her. It is apparent, as has subsequently transpired, that it is no longer that and can never be that again. But I think that the fact that it occurred in those circumstances understandably has increased the impact on her.
As far as you are concerned, I accept that I should have regard to your age and your prior good character. You have nothing really in the way of any kind of criminal record. It is obvious that you have been a hard worker, and an industrious person, and, it would seem from the character references I have been provided, you have been a person who has done good works within your community and obviously a person highly regarded by members of your family.
You are not to be punished for the fact that you have exercised your right to a trial, nor anything else that is concerned with your response to this crime. But, of course, you are not entitled to any mitigation that would normally flow from a plea of guilty and an early admission of guilt.
The only appropriate sentence in this case is one of imprisonment. The elements of vindication of the victim, denunciation of your conduct, and general deterrence, loom large in relation to the sentencing process. I will take into account the need to ensure that you have the ability to rehabilitate, and I think that that can appropriately be achieved by allowing for your release on parole at the earliest time.
J D, you are convicted of the crime of which you have been found guilty by the jury. You are sentenced to imprisonment for a period of three years and six months. That sentence will commence immediately. You will not be eligible for parole until you have served one half of that sentence.
I am required to make an order under the Community Protection (Offender Reporting) Act unless I am satisfied that you pose no risk at all of committing an offence of this nature in the future. Although I think the risk is extremely low, given the circumstances in which this crime was committed, I do not think I can be satisfied that there is no risk. However, I intend to moderate the period of time that you will be subject to this reporting condition, having regard to my view about the extent of the risk. I order that you be placed on the register pursuant to that legislation and comply with the reporting obligations for a period of three years after your release.