STATE OF TASMANIA v J S R 18 APRIL 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr R, a jury has found you guilty of one count of indecent assault. You were, of course, found not guilty of the primary charge of rape, and of any crime relating to the first count on the indictment.
The victim of the crime is your daughter. You and her mother had been separated for some time, and you lived alone. The arrangement was that your daughter and her two siblings, her brother and sister, would spend every second weekend with you. The contact visit would take place on the Friday and Saturday night of that weekend.
The crime was committed on the night of Saturday, 15 July 2017, during the course of a contact visit. Your daughter slept in your bed that night. There was nothing unusual or impermissible about this. It was normal for your daughter to sleep with each parent, from time to time. During the course of that day, a friend had visited you, and you and he had consumed a considerable amount of alcohol during the visit. I am satisfied that by the time you got into bed, you were considerably affected by alcohol.
During the course of the night, your daughter woke to find that you were touching her vagina. I am satisfied that she told you to stop and tried to push you away, but you ignored her. You were charged with rape on the basis of the allegation that during the course of indecently assaulting your daughter in this way, you had penetrated her vagina with your finger. However, the jury was clearly not satisfied of that element and hence returned the alternative verdict of guilty of indecent assault. You will be sentenced on the basis that you touched your daughter in an indecent way with your finger or fingers directly onto her vagina, that is under her clothing, but that you did not penetrate her vagina or genitalia.
The jury’s verdict excludes the possibility that you were actually asleep when you perpetrated this crime. However, it is probable that you were still affected by alcohol and were acting under its influence. This provides you with no excuse or mitigation, although it does explain why you acted this way when you had never done so before. I am satisfied that although intoxicated, you still had some realisation of what you had done, and this explains your lie to police about your daughter sleeping in your bed that night. I am satisfied that you lied about this because you knew what you had done, and wanted to avoid the consequences of that act.
Your daughter was distressed by what you did. She clearly had enough understanding of the act to know that it was very wrong. This implies that she also had, and still has, an appreciation of the breach of trust involved in having this act perpetrated upon her by her father. She was vulnerable to abuse of this nature particularly because she was allowed to sleep in your bed. Your daughter seems to me to be a bright and intelligent child. She told her brother what had happened the next morning, but you denied her allegation. She disclosed the abuse to her mother, not immediately, but a day or so before she was due to return to your house for another contact weekend. Her motive in making this disclosure was to ensure that she was not placed in a position where you could abuse her again.
This manifests a very sad aspect of this case. Your daughter clearly loves you and wants to have a relationship with you as her father. She is entitled to that relationship and its benefits. However, your criminal act has betrayed and destroyed the trust that she formerly placed in you. She no longer trusts you and is not prepared to be left alone with you, particularly overnight. This has resulted in a very significant impact on your parental relationship with her, and has made it impossible for that relationship to continue, at least for the immediate future. I think that it will take a very long time before there is any opportunity for a significant improvement in your relationship. Of course, even if it does improve, it will never be the same.
The consequences for your daughter have extended beyond the loss of her relationship with you. I have been provided with an impact statement prepared by your daughter’s mother. This sets out your daughter’s ongoing separation anxiety and other psychological consequences. She is struggling to understand and deal with your actions and the impact which they have had upon her. She has been receiving counselling since this happened. A report from her counsellor describes ongoing psychological symptoms consistent with a diagnosis of post-traumatic stress disorder, although a formal diagnosis has not been made at this time. Understandably, your other children have also been affected. You have not been able to see any of them since this occurred and they are all suffering from the loss of that relationship. The impact statement describes in some detail the particular impact upon her brother. He is very angry and has also required counselling. These consequences are within the ambit of what might reasonably be expected as a result of an event such as this. The trust which a child reposes in a parent is fundamental to that relationship. The child, particularly one as young as your daughter, looks primarily to her parents for care, which includes protection from harm. The performance of an act of this nature is irreconcilable with the basis of that trust and the relationship. This is so fundamental that it would have to have been clearly understood by you. Your culpability and the seriousness of your offending must therefore be assessed by reference to these consequences.
You are 34 years of age. With the exception of a common assault committed in 2010, your criminal history consists of a minor firearms charge committed some time ago, and some traffic offences. It does not contain any offence of a similar nature to this crime, nor was it suggested that you have committed such an act before. You suffered a serious head injury in an accident some time ago and are still affected by its consequences, in particular you have sustained an acquired brain injury. You were in receipt of a disability support pension at the time of the commission of this crime. Your counsel has outlined some underlying psychological issues that have affected you, including anxiety and depression.
I regard this crime as a very serious example of its type. It involved a grave breach of trust. The existence of that trust, your daughter’s age, and the fact that she was in your bed asleep at the time, made her particularly vulnerable to conduct such as this, and you took advantage of that vulnerability. Although I accept that the act was isolated and relatively short-lived, its consequences have been devastating. You have not demonstrated any remorse or insight, and are not entitled to the mitigation which would be available from a plea of guilty or even an earlier admission of guilt. General deterrence, denunciation and vindication of the victim are all important sentencing considerations. The only appropriate sentence is a significant term of imprisonment.
J R you are convicted of the crime of indecent assault and sentenced to imprisonment for a period of two years. This sentence will be backdated to the day on which you were remanded in custody which is 28 March 2019. I order that you 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 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, and your response to the charges, I am not satisfied of that matter and, accordingly, must make an order. 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 a period of five years after your release from prison.