STATE OF TASMANIA v MATTHEW SHANE JONES 3 August 2023
COMMENTS ON PASSING SENTENCE WOOD J
Matthew Shane Jones has been found guilty of one count of persistent sexual abuse of a child. After the trial concluded, he pleaded guilty to one count of possessing child exploitation material.
The defendant committed a number of sexual crimes which gave rise to the crime of persistent sexual abuse of a child. At trial, the State asserted there were five specified occasions of unlawful sexual acts. The verdict of the jury means they were satisfied beyond reasonable doubt that the defendant had committed the act or acts involved in the specified occasions on at least three specified occasions. I am satisfied beyond reasonable doubt of the occurrence of all five occasions.
The background to the commission of this crime is as follows. The child was four years of age and she attended a child-care centre in Hobart one set day a week and sometimes another day or days, as well. The defendant was employed at the centre as a qualified child carer. He was 20-21 years of age during the period of offending. The child was cared for in a room with other children who were approximately the same age, and the defendant was assigned to that room. The child became attached to the defendant and would follow him about. It is quite common for children of that age to develop an attachment to a teacher or child carer to the exclusion of other adults in that role.
The defendant would pay the child special attention, spend more time with her than the other children, and engage physically with her to an extent that was not appropriate and was discouraged by supervising staff when it was observed. He would allow her to sit on his lap, carry her around, and hug her.
The five specified occasions occurred at the child care centre in the period 3 July 2020 to 26 October 2020, when the defendant was working in his role as a child carer and alone with the child. On all but one occasion, the conduct amounted to an indecent assault or indecent act with or directed at a child or young person.
The occasion described as occasion one in the particulars provided by the State involved the defendant kissing the child on the lips, and it was observed by another child carer. The child was going on an excursion and the defendant was cleaning up after morning tea. Before getting on the bus, the child went up to the defendant and he knelt down to her level and kissed her on the lips. The child carer described it as not just a peck but a “passionate goodbye kiss on the lips.” She was shocked by what she had seen and immediately said to him that that was not allowed before reporting it to her team leader and management.
The child described kissing as happening on more than one occasion. I accept her account and find that there was at least one other non-specific occasion of kissing.
In about July 2020, the child told her mother that they had kissed. Her mother rang and reported it to centre management on 31 July 2020. The two directors of the centre spoke to the defendant about it. He said he had meant to kiss her on the cheek but she turned her face and he unintentionally kissed her on the lips. The defendant was reminded about appropriate interactions and provided with a mentor.
Later, when interviewed by police, he gave a different account and said he had kissed her on the cheek and that he had not kissed her on the lips.
The State’s case regarding two of the specific occasions, described as occasions two and five, rely heavily on the child’s evidence. Her evidence was given in police interviews, a recorded conversation with her mother when reading a book together, and at the special hearing. I accept her as a truthful and reliable witness and, also, I am satisfied beyond reasonable doubt of each of the specific occasions.
The specific occasion, described as occasion two, involves three unlawful sexual acts described as kissing the child’s vagina and/or touching her vagina by wiping it with toilet paper and touching her tongue with his tongue. Her evidence about this occasion was given principally at the special hearing. I make findings in accordance with the evidence given by the child.
I find in accordance with the child’s evidence that the defendant sat her on a table which was located outside a bathroom. Her class, as she described it, was lining up and she and the defendant were alone in that space outside the bathroom. They touched tongues, and as she described, their tongues were outside their mouths and they “twirled” or “twisted” their tongues and this felt “yucky”. On the same occasion, he took her to the toilet. I note that she is a child who did not require assistance going to the toilet or wiping herself afterwards. The defendant entered the cubicle with her and closed the door. She sat on the toilet with her clothing pulled down to her knees and he wiped her vagina with toilet paper and bent down and kissed her vagina. I find, in accordance with the account that the child has given, that the contact of kissing was brief and occurred while she sat on the toilet. I note there is no evidence that he moved her body or legs when he kissed her in this way. I note, too, that the child’s use of the term vagina in her evidence referred generally to the genital region. It is not possible to make an exact finding about where he kissed her except that it was to the vagina or genital region that was accessible without moving her. The defendant’s conduct on this occasion gives rise to three acts of indecent assault.
In accordance with the evidence the child has given, I find this was not the only occasion where the defendant had indecently assaulted her while taking her to the toilet, and that on at least one occasion, he had examined her vagina on the pretence of checking her to “see if it hurts”. She also reported that the defendant would give her an “extra wipe” after she had been to the toilet. That particular report may have related to the same incident as the specific occasion I have just mentioned and so it may not amount to other examples of the same kind of conduct.
The specified occasion described as occasion five is particularised as exposing his penis to the child and/or instructing her to touch his penis and/or allowing her to touch his penis. The child’s evidence about this occasion was given at the special hearing. I accept her evidence that the defendant undid his trousers and exposed his penis to her in a space near the child care room where no one else was present at the time. I find that this was the extent of his conduct on that specific occasion.
There was an instance when he made her touch his penis either on the outside of his clothes or his naked penis. I am not able to find that was the same occasion as occasion five, and I proceed on the basis that it happened but at a different time and is an unspecified occasion.
It can be seen that the defendant has carried out sexual acts in addition to the five specific occasions. The defendant is only to be sentenced for the five occasions, however, I may take into account that it cannot be said on his behalf that these five occasions were isolated occasions of abuse, and the other incidents are relevant to the sentencing task as they have a bearing on his moral culpability.
The other two specified occasions involve the defendant taking photographs of the child whilst she was sitting on a toilet exposing her genitalia or standing beside a toilet with her chest and genitalia exposed. On two dates, namely 10 July 2020 and 17 July 2020, there were a total of seven explicit images taken. On 10 July 2020, photographs were taken with the child’s vagina exposed and on the other occasion, on 17 July 2020, she was standing near a toilet with her chest and vagina exposed.
At trial, these two occasions of taking photographs were not disputed. The images were found some five months later on the defendant’s laptop computer in a deleted folder when it was seized by police on 13 December 2020. The metadata reveals the photographs were taken on the defendant’s mobile phone on the dates I have referred to. The metadata evidence shows that he deleted the photographs at a time and on a date that coincided with the police arriving at his home to undertake a search.
The taking of the photographs amount to an indecent act directed at a child. I find they were taken for his sexual gratification. I note there has been no distribution of these photographs to anyone else. The child’s face can be seen. She would have been aware of the taking of the photographs but, in her innocence, she may have been unaware that his conduct was wrong or perverse.
His offending in taking these photographs connected with his responsibility to care for children by assisting them in taking them to the toilet, and their vulnerability in needing this assistance, is an appalling breach of trust.
The defendant’s conduct came to light on 26 October 2020 when the child disclosed to her mother some of the defendant’s conduct. She had been put to bed and became distressed, and her mother asked her what was bothering her. The child replied, “Matt and I have a secret.” She then disclosed that the defendant had asked her to touch his “bits”, her word for genitals. I find that the conduct that she disclosed occurred close in time to her disclosure in October. After that date, the child disclosed to her parents other conduct that I have referred to, including not only the specified occasions but also other unspecified occasions.
She was withdrawn and very worried about disclosing this to her mother. She repeated to police in her video statement that she had secrets. I find that the defendant had told the child at some point that his sexual act or acts were their secret. This is an aggravating factor.
Further, I regard the defendant as determined in his conduct, and this bears on an assessment of his culpability. After the kiss was observed by a colleague, he was instructed by a supervisor that he was not to be alone with the child, and yet he took opportunities to be alone with her in the store-room or in the child care room after other children had left for the day. He was non-compliant with the child-care centre’s policy about not taking photos of the children on his mobile phone, not only in relation to the two occasions I have mentioned, but generally such as in the playground. Moreover, he showed special favour to the child when instructed not to and was physical with her when told not to be.
His conduct in relation to the crime of possessing child exploitation material, contrary to s 130C of the Criminal Code, is as follows. This crime came to light as a consequence of the police search of the defendant’s home on 13 December 2020 and the seizure of his laptop. It contained 477 illegal images within the thumbnail cache of the laptop. This storage location collects temporary data and makes it easier to retrieve data. There were 475 images which depicted young pre-pubescent female children engaged in sexual acts or posing in a sexually explicit way.
There were 262 images involving category 1 of child exploitation material and 213 of category 2. Category 1 is known as Interpol baseline and is the most serious category and involves pre-pubescent children when the child is involved in a sexual act, is witnessing a sexual act, or the material focusses on the child’s anal or genital region. Category 2 involves child abuse material not classified as baseline and involves other material that is illegal according to local legislation by way of age or content. The images here involved female pre-pubescent children either isolated by themselves in images, or with adults or other children engaged in some sort of sexually related activity. Given that the images had been put into the recycle bin, it is not known how they were stored on the computer before then.
In addition, it could be seen from the defendant’s web browser history that he frequently visited child pornography sites. I note here that he is not charged with accessing those sites but his conduct in this regard has relevance as background.
Also located on the laptop were two photographs of a 5-year-old girl who attended the same child-care centre. This child is not the same child who is the victim of the crime of persistent sexual abuse of a child. The photographs were taken at the child-care premises in a storeroom or staffroom which was used by the centre in July 2020. In one of the photographs, an adult arm is holding up the child’s shirt, exposing her bare chest, and in the other the child is holding up her own shirt exposing her bare chest, whilst screwing her face up. The child’s face is visible in both. Both images are classified as category 2. The defendant is not charged with producing or taking those photographs, but the possession of them which, in and of itself, involves a breach of trust.
On 29 January 2021, the defendant was arrested and interviewed but made no admissions in relation to the images.
In both cases, the victims were very young and, given their age, might not have appreciated his wrongdoing, and might not have had the knowledge and language to enable them to communicate what the defendant had done. The child the subject of the persistent sexual abuse charge had a sense that the defendant’s conduct was wrong and fortunately told her parents about his conduct, which has led to his apprehension. While it is not possible to know what might have happened otherwise if she had not disclosed his conduct, I find that he had not desisted from his offending at that time. Her reporting of his conduct may potentially have protected other children from the risk of similar abuse.
I have victim impact statements from the child’s parents. They speak of the impact the abuse has had on their daughter and how she has become withdrawn and a shell of herself. She suffers from bouts of physical self-harm and sadness, despite having the support of a team of professionals. Her life has been immeasurably harmed and the courts are well aware that the impact of such abuse on children can be pervasive and long-term.
The impact on the child’s parents is also profound. Their marriage has suffered. The children were taken out of childcare and the child’s father had to close his business to care for their children, which has had a significant financial impact on their family. The child’s father is depressed and has severe anxiety, and the child’s mother suffers from serious psychological symptoms. Their anguish and distress is palpable.
Terribly, the child’s father speaks of having the sense that he has failed his daughter, yet the crime committed is one which is unimaginable. Parents should be able to have complete confidence that their child is with a safe person when in a child-care environment. The defendant’s abuse of trust is captured by the child’s mother in her statement when she said, “we trusted him with the most precious thing we have in this world, and he abused that trust.”
Both victim impact statements helpfully reinforce the Court’s understanding of the gravity of harm caused by such abuse. The defendant’s breach of trust will be reflected in the sentence.
I note that he is not entitled to a discount with respect to the crime of persistent sexual abuse of a child that would be granted to offenders that plead guilty.
The defendant was aged 20-21 at the time of offending and has no prior convictions.
I have been provided with a psychiatric report written by Dr Alexander Jasper, Senior Registrar, under the supervision of Dr Rajan Darjee, consultant forensic psychiatrist and Deputy Statewide Specialty Director of Forensic Mental Health Services. The defendant has a history of mental health issues and concerns. He has been treated by Dr Evenhuis for anxiety as a consequence of being charged with these sexual offences. He has post-traumatic symptoms which stem from being sexually abused himself as a child, and is prescribed medication for these symptoms and the symptoms of his anxiety. He has a history of alcohol abuse and cannabis use.
The psychiatric opinion is that the defendant appears to meet the criteria for a diagnosis of borderline personality disorder, he has an alcohol use disorder as well, and symptoms of post-traumatic stress disorder, as mentioned. There is not, however, a causal relationship between his mental disorders and conditions and his offending before the Court today.
He is considered to be in the above-average risk level for someone convicted of a sexual offence. It is considered probable that he has some degree of sexual attraction to children and may suffer from paedophilic disorder, but that is presently uncertain.
The report usefully highlights matters of background with respect to the defendant. His childhood was emotionally deprived. Given his auditory processing disorder, he was likely a child who needed more care in order to develop his sense of self and interpersonal skills. His needs were not met at home or at school in early childhood or as an adolescent, and he is described in the psychiatric report as a deeply lonely and markedly isolated young man.
The report notes the defendant is unable to offer an explanation for why he did what he did, and he denies having a memory of having engaged in the behaviours the subject of the charge. Noting other issues with his memory, it is thought that it may be the defendant is deeply ashamed of his offending and possesses such limited psychological resources to process his thoughts and feelings that he has distanced himself from this conduct. Presently, these matters are in the realm of the unknown, but I do take into account in the defendant’s favour at least the possibility that he is struggling to come to terms with his conduct, rather than being a person who lacks remorse for what he has done. I will also allow for the fact that, with support and counselling, he may develop that recognition of wrongdoing and his remorse may become evident.
The psychiatric report indicates the defendant would benefit from individual psychotherapy with a psychologist who has experience in working with people who commit sex offences. This type of treatment is not available in prison. It may be available to him by referral from his general practitioner under a mental health care plan. It is noted that, due to his auditory processing disorder, he may be eligible for NDIS funding for private psychotherapy. I note that it would be ideal if he could be assessed for this funding whilst he is serving his term of imprisonment so that it might be made available to him on his release. The report I have referred to also notes that he would benefit from alcohol support and education, and he is considered suitable for the sex offender treatment program that is offered in the prison called New Directions.
The defendant’s relatively young age provides an opportunity for him to reform, particularly if he is provided with positive influences and the guidance and support he evidently needs and which has been lacking in his life. His rehabilitation is an important sentencing consideration and should be promoted by the sentence I impose. I note he will have the support of family on his release.
I accept that his conviction for these crimes will impact on his future and limit his employment options. I also note that he would evidentially benefit from vocational support, and an opportunity for retraining would promote his prospects of reform.
The defendant has experienced adverse consequences of his offending beyond the sentence the Court will impose. Most unfortunately, there has been a significant amount of material about this case posted on social media and insidious threats made to his family, and they have sustained property damage. These consequences have not only affected his family members and caused them significant distress, but in turn they have distressed the defendant.
He is finding the prison environment difficult and has been subject to significant lockdown periods and cancelled visits. I note that he has had two medical appointments for assessment and treatment cancelled by the prison and, consequently, a delay in accessing specialist care which is proving stressful for him.
I have taken into account the personal circumstances of the defendant and now turn to consider the balancing task which is involved in determining the just and appropriate sentence.
I address first the crime of persistent sexual abuse of a child. The defendant’s criminal culpability for this crime is high. His conduct was determined and he ignored directions about appropriate interactions and behaviours with children. There were boundaries that he knew very well that he must not cross as a child carer and his conduct shows a preparedness to do so. His selfish disregard for those clear boundaries progressed to him sexually abusing a very young and vulnerable child in his care.
A heavy sentence is required. The protection of children is of paramount concern and the sentence needs to deter others who might be minded to abuse children in their trust and care. The sentence must also adequately reflect the grave harm caused to the child and to her family.
An essential requirement of the sentence is that it must be proportionate to the nature of the criminal conduct. The conduct was inevitably very harmful. It inherently involved corrupting conduct which sexualised a relationship with a very young and vulnerable child.
I take into account the extent of the sexual abuse which was more limited than some other cases involving this crime. Indeed, the sentence I impose today must not impinge upon the range of sentences which would be imposed for penetrative sexual abuse or conduct which, in terms of individual episodes, involves more sustained or extensive abuse. Nonetheless, I am sure the sentence I am about to impose will be felt by the defendant as a very heavy penalty. It is important that he understands if more intrusive criminal acts had been inflicted upon the child by him, the penalty would be commensurably heavier.
The appalling breach of trust I have referred to is a significant factor in fixing the sentence I impose.
The defendant’s youth, lack of criminal history and prospects of rehabilitation are not overlooked. His reform is, as I have said, an important goal and will be reflected in the head sentence and more so, in his eligibility for parole, as well as another consequential order that I will make today.
The crime of possession of child exploitation material is a very serious crime and the courts repeatedly speak of the need for general deterrence when sentencing. The possession of this material promotes the continued exploitation and sexual abuse of children. As stated, the defendant’s conduct in possessing the two photographs of a child of the centre involve a serious breach of trust.
I note that his possession of the child exploitation material coincided with his other period of offending and gives rise to considerations of totality.
For the crime of persistent child sexual abuse, I impose a conviction and impose four years’ imprisonment backdated to 24 March this year.
In relation to the crime of possession of child exploitation material, I record a conviction and I impose 12 months’ imprisonment. Six months of that sentence is to be served concurrently with the four-year term of imprisonment.
The effective sentence is four and a half years’ imprisonment backdated to 24 March 2023. I order that you are not to be eligible to apply for parole until you have served the minimum period of 2 years’ and 3 months’ imprisonment, respectively.
I impose a Community Correction Order to be in place for 18 months from the date of your release. The essence of this order that it is intended to promote your rehabilitation and reform on your release. As conditions of that order, you must report to a probation officer at 75 Liverpool Street, Hobart, within 2 working days of your release; you must report to a probation officer as required by that officer; you must comply with all the reasonable and lawful directions of your probation officer. I impose special conditions which reflect the contents of the psychiatric report I have referred to. You must comply with directions regarding alcohol use, treatment, and counselling; and you must comply with directions of your probation officer in terms of attending psychiatric and psychological assessment treatment and counselling, as directed by your probation officer.
I make an order under the Community Protection (Offender Reporting) Act 2005 that your name be placed on the register pursuant to that Act, and you are to comply with the reporting obligations under that Act for 8 years.
I make an order for forfeiture of the Apple iPhone XR 374896440 (estimated value to be $3000) and the Acer laptop seized as described in the Crown facts at para 19, pursuant to the Crime Confiscation of Profits Act.