STATE OF TASMANIA v JLP 18 MAY 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr P, the defendant, has been found guilty by a jury of one count of aggravated sexual assault. This crime was committed in about 2009. The victim is his daughter who was then about six years old. Meaning no disrespect of course, I will simply refer to her in these comments as the “complainant”. The facts are as follows. At the time of the offending the defendant was separated from the complainant’s mother. They have two children; the complainant is the youngest. By way of an informal arrangement between the defendant and the mother, both children stayed with the defendant every second weekend from Friday through to Sunday. At the relevant time the defendant was living at a house with a male friend and a sister of that friend with whom the defendant had formed a relationship. The jury must have accepted the complainant’s evidence and I proceed on that basis. On the particular night, the complainant was staying with the defendant. She had been sick and had gone to sleep in the defendant’s bed. She was wearing a nightie and underpants. She awoke to find the defendant touching her vagina. He was laying on the bed next to her. He had his hand underneath her underpants and was rubbing her genitalia but did not penetrate her vagina. The complainant recalls the defendant stopping for a moment, licking his fingers and continuing. While touching her genitalia he guided her hand towards his penis and asked her to touch it, which she did not do. The defendant desisted and the complainant went back to sleep. It was not until a few years later, when undertaking the topic of sexual education in high school and learning about the correct terms of the female anatomy and issues such as consent, that the complainant started to as, she said, “connect the dots”. She was able to say in evidence that there was penetration of her labia and touching of her clitoris. Much later, in late 2017, she made a partial disclosure to her then boyfriend. In about late August 2018 she made complete disclosure to her mother and complaint was then made to police. I have a victim impact statement from the complainant dated 10 May 2023. This shows that what happened has had a profound impact on the complainant’s life. In very short summary, she says she feels her innocence was stolen from her and her childhood was ruined. The memory of what happened is vivid and she grew up feeling unworthy and ashamed. The realisation that her own father had betrayed her has resulted in great emotional damage. She says she has carried “horrible weight” through her life. She has self-harmed, once in a critical way requiring hospitalisation, and has received psychiatric and counselling assistance for a number of years.
The defendant is now 43 years old. He has a record of prior convictions mostly for traffic offending although the level of seriousness of that did reach a point where in 2006 where he was sentenced to three months imprisonment the execution of which was wholly suspended on conditions of three years. He does have employment in the form of part time labouring work in the civil construction area. He has had no contact with his children since the public revelation of the allegation in 2018. I was told that he has had affectively lost his children and family. Imprisonment will put an end to his employment and seriously damage his employability. He will also lose his rented accommodation and that will make it difficult for him on his release. I am also told that he has been threatened and harassed since the compliant to police. I take these matters into account.
On any view, this was a grave abuse of trust placed in the defendant by both the complainant and her mother. This is reflected in s 11A of the Sentencing Act which operates to make a number of aspects of this matter aggravating circumstances. They are the facts that the defendant had the care and supervision of the complainant and that she was under the age of 13. She was in fact only about six. The defendant took advantage of the complainant being asleep when he started to touch her. And so another aspect of her vulnerability was exploited. In my view the fact that there was no penetration of the vagina itself is of some note but does not significantly alter the nature of the conduct. His touching was more than fleeting. His conduct of guiding her hand towards his penis and asking her to touch it is relevant context. It relates to the level of interest in sexual activity with the complainant. I add that the defendant may well have faced a charge of an indecent act with or directed at a child under s 125B of the Criminal Code but even if that is the case, it remains part of the context to be properly taken into account. Factors of general deterrence and the denunciation and condemnation of this sort of outrageous conduct are paramount. The defendant does not have any history of any significant prior offending but in cases such as this, that counts for something but not very much. It was put, and I accept, that this was an opportunistic incident rather than a pre-planned act of predation. He desisted without any the complainant having to act. There is no suggestion of any other sexual misconduct or misconduct of any type towards his children or more generally, and I accept that it was an isolated occurrence. The fact remains however, that this is a serious example of this type of offence.
Mr P, I have set out the facts and circumstances, and the factors needing to be taken into account. I see no option but to impose an immediate term of imprisonment of some length. You are convicted of the crime and sentenced to 15 months imprisonment to commence on 7 May 2023. In the circumstances I think it is appropriate that you be allowed full eligibility for parole and I order that you not be eligible for parole until you have served one half of that term. I must make an order under the Community Protection (Offender Reporting) Act unless I am satisfied that you do not pose a risk in terms of further similar offending. In your case, I cannot be satisfied that there is no risk but I do not think such risk as there is amounts to a substantial one. I order that your name be placed on the register and that you comply with the reporting obligations under that Act for 12 months following your release.