STATE OF TASMANIA v PETER RICHARD ALBERT JOYCE 9 JULY 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Joyce, the defendant, has been found guilty of one count of indecent assault as an alternative to aggravated sexual assault, one count of rape and one count of making a communication with the intention of exposing a young person to indecent material. The facts, consistent with the verdicts, are as follows. The first two crimes were committed on a night in June 2016 in the course of one incident. The complainant, who I will simply call AB, was then 13 years old. The defendant was then 44 years old. In the period before the offending, AB was going through a difficult period in her life. She was using cannabis, drinking alcohol, staying away from school and was involved with antisocial people. The defendant lived nearby in a house with his mother. AB met the defendant when at the unit of a friend of hers. He told her that he knew her family. The evidence shows that he was friendly with AB’s paternal grandparents and was known to AB’s mother. The defendant and AB met on a few occasions during which the defendant gave her cannabis or alcohol, and they would talk. This took place in the defendant’s mother’s car parked in the driveway of the defendant’s home. At some point, the defendant went to AB’s mother’s house where the two talked about AB’s problems. AB came to trust the defendant and confide in him. On the particular night, AB went to the defendant’s home and sat in the car with him. They smoked cannabis and drank alcohol. AB was in the driver’s seat with D in the passenger seat. He encouraged her to keep drinking. They were talking about how they had been and what they had been doing. The defendant leant over and hugged her, and told her to kiss him. She refused. He told her that when he had his own place she could live with him, he would look after her, and that was all he ever wanted as he loved her. He pestered her to get into the backseat but she refused. He then pulled her pants down and rubbed his fingers on her vagina. At about this time, the defendant’s mother came out of the house to see what was going on. He told AB to pull her pants up which she did, and then told his mother who was in the car. On the defendant’s version to police, his mother then went back inside. His mother said she told AB to go home, but whatever is the case, AB did not immediately go. The defendant then said to AB that he could not do anything while she was sitting where she was, and told her to get in the back seat. AB resisted but eventually relented after he insisted. After they had been sitting in the back seat for a short time, the defendant told her to lay down. She again initially resisted but he pulled her down, took her pants off and had vaginal sexual intercourse with her for a time. At the start of this, AB asked him to stop, told him to stop, told him not to do it and said that she needed to go home. He told her that he would look after her. AB says that she then pulled her hood over her head and basically froze. She felt like she was having a panic attack and was finding it hard to breathe. After he had finished, AB got out of the car and went home. She said that she kept showering as she felt dirty. Facebook messages between the two were in evidence. On 19 June 2016, AB responded to a message from the defendant saying that she did not want to catch up as she had been depressed since what he had done to her. She told him that what he did was not right. She said, “I was so fucking scared I had a panic attack. I cried myself to sleep every night.” She added that she would never forget what he did and asked him whether he realised it was rape. The defendant’s response is not fully legible but it commences with the words – which I have spelt out in full – “I will tell you when I see you and I care about you OK.” Later the defendant told AB she was beautiful and that he wanted her. Further messages were exchanged over ensuing days. On 9 July 2016, the defendant sent her a photograph of a vagina. When she asked what was going on the defendant claimed that it had been sent to him on a strange number and he was trying to find out whether it was her who had sent it. The defendant claimed to police that he was concerned that AB was sending such material. The jury did not accept his excuse as a legitimate one. I have a victim impact statement from AB. She said that after she was raped she had a lot of anger issues. She started to hurt other people physically and committing crimes because she was so angry. She pushed all her family away. She became self-destructive and completely dropped out of school. Her substance abuse worsened and she was eventually hospitalised for mental health issues. She feels that she has been affected on a long-term basis. She no longer trust older men when they are around. She still has many problems, including anger, depression and anxiety, and says she has post-traumatic stress disorder. She says this has affected her family and that her mother has struggled with what has happened, and blames herself. AB feels bad that her mother feels that way. Because she did not feel safe, AB has left Tasmania and now lives interstate.
The defendant is now 47 years old. He has a lengthy history of recorded offending which includes many appearances for drug and drug-related matters, and offences of dishonesty connected with drug use. Prominently, in April 2015 by way of sentencing and re-sentencing for such matters, he was sentenced to 10 months’ imprisonment the execution of six months of which was suspended for 12 months. Earlier that month a drug treatment order had been made but cancelled. I am told that notwithstanding cancellation, there was some success in the sense that the defendant’s use of amphetamine and morphine was reduced, but his level of cannabis use was maintained. Similarly, a drug treatment order made in July 2014 was cancelled due to non-compliance. Earlier, on two occasions in 2006, again in 2008 and in 2011, he was sentenced to short terms of imprisonment with partial suspensions for drug and drug-related offending and traffic offending of some seriousness. There is a conviction for an assault which was committed in April 2013 and for which he was then sentenced and has been re-sentenced since on a number of occasions. I note that there is an earlier assault in 1995 which appears to have been of some seriousness in that he was sentenced to 12 weeks’ imprisonment, six weeks of which were suspended on conditions. In all of that, there is no recorded history of sexual offending. Suffice it to say that his record evidences a severe and entrenched substance abuse problem. Nothing seems to deter him. Since offending in 2016 he has again been sentenced to imprisonment for drug and drug-related matters. That term of three months was wholly suspended on conditions for two years, and he is still currently the subject of that order. I am told that he has recently removed himself to a simple life on a Newstart allowance in a remote town. His drug use seems to stem from pain management following a serious motor vehicle accident in 1995 in which he suffered spinal injuries. He does not nowsuffer any physical disability as a result. At the time of this offending he had hepatitis C but that has since been successfully treated. He has two daughters by previous relationships who are supportive of him, and there is a third child, a sibling of one, with whom he has hopes of reconnection.
I regard this offending in a very serious light. AB was barely into her teens and a troubled and vulnerable girl. The age difference is considerable. The defendant’s conduct amounted to a grave breach of trust. Although it might not be an aggravating circumstance within the meaning of s 11A(f) of the Sentencing Act because of the lack of evidence of intention, and although she does not seem to have been unduly affected, the fact remains that the defendant supplied AB with cannabis and alcohol beforehand. This is indicative of the disregard he had for her age and circumstances. I mention the next matter for the sake of completeness, and it was not a matter that was raised by the defendant’s counsel. The material shows that AB had previous sexual experience, a fact that was known to the defendant. Of course that fact, I stress, does not lessen in any way the seriousness of the defendant’s conduct. In my view, the breach of trust was perpetuated by his insensitivity to her complaints made to him afterwards through Facebook messages, and his continued expression of a sexual interest in her. I accept that no physical force was used beyond that necessary to perform the act of intercourse, and beyond insistence that AB get into the back seat, there were no threats or intimidation. Little else can be said in mitigation. General deterrence and denunciation of the conduct are primary considerations.
Mr Joyce, I have set out what I see to be the relevant factors in your case. You knew this girl’s young age and that she was experiencing difficulties in life. As a mature man you exploited that situation and imposed your will on her, despite her making it clear to you that she did not want to have sex. You removed her pants on two separate occasions so as to commit sexual crimes, persisting in the second phase involving the rape even after your mother had come to the car. Afterwards, in the Facebook messages, you remained completely oblivious to the complainant’s age and situation. A heavy sentence of imprisonment is necessary. You are convicted of the crimes and sentenced to five years’ imprisonment to commence on 27 June 2019. I order that you not be eligible for parole until you have served one half of that sentence. In the circumstances, I am not satisfied that you do not pose a risk within the meaning of the Community Protection (Offender Reporting) Act. I order that your name be placed on the register and that you comply with the reporting conditions for a period of eight years following your release.