STATE OF TASMANIA v JSP GEASON J
COMMENTS ON PASSING SENTENCE 18 OCTOBER 2019
Mr P, you have been found guilty by a jury of two counts of rape and a single count of indecent assault.
Each count arises out of a single episode which occurred at a party at Carlton on 21 May 2017.
You were at that party and you were drinking alcohol. The complainant was also at the party. She was consuming alcohol too. The evidence is that she was drinking vodka, ‘neat’ from a bottle. She had consumed enough to be intoxicated and that fact is borne out by evidence of her demeanour from a number of witnesses. During the course of the evening, at least on intermittent occasions, there appears to have been some interaction between you both, and some of that involved kissing. At some point later in the evening you invited the complainant to go with you to another area of the property away from the party. You initiated that, but there is no suggestion that you forced the complainant to go there or that she went there other than voluntarily. You began kissing one another; consensual intimate behaviour followed, behaviour that I have no doubt aroused your desire to take matters further with her to the point where these offences were committed.
You acted on those desires by having sexual intercourse with her. This occurred as follows. An initial act of vaginal intercourse followed by digital penetration of her anus whilst she was on her stomach and then a second act of vaginal intercourse. All of this occurred, the jury has found, without her consent.
It is the digital penetration that constitutes the crime of indecent assault. As to that, I accept that the penetration was to the least degree and I observe that you desisted when you were asked to do so.
It is difficult to put a duration to this behaviour because the evidence is unclear in the sense that it is not precise. Estimates are based more on impressions than anything else and time estimates are usually unreliable. I can do no more than conclude that this offending occurred for long enough for the three acts I have described to be completed, noting the evidence that the complainant was in two different positions during the course of that conduct.
The offending conduct was interrupted by the arrival of other people to the area to which you had gone and it stopped at that point.
I observe that you did not ejaculate. The complainant had requested that you not do so.
The Crown submits that there are four aggravating features of this conduct. First, that this offending involved a breach of trust. I reject that submission. There was no relationship of trust in the relevant legal sense or at all. Second that you placed your hand on the complainant’s mouth during the conduct, the subject of the charges. I accept that this is conduct aggravates your offending, though I also accept that it was of very short duration and I find that it occurred at the point when others had come onto the scene. But it did prevent the complainant from saying anything she may have wanted to say to attract the intervention of those people. The third matter is that the sex was unprotected. There is no suggestion you have any disease, and I have commented that you did not ejaculate. In my view, the fact that the sex was unprotected is not in this case an aggravating factor. There is a fourth matter described as aggravating and that is that your conduct was predatory, a submission based on a remark earlier in the evening with which I will deal in a moment because, in my view, it is relevant to the issue of your state of mind at the time of your offending.
Section 11A of the Sentencing Act is not ignored by the Court in assessing the criminality of this conduct. I have identified the view I take of the submissions made by the Crown as to aggravating matters. There are no other matters in s 11A, though that list is not exhaustive, which are relevant in this case. I also formally record for the purposes of addressing that provision that this is not a case where, in my view, your good character or lack of previous convictions was of assistance to you in the commission of the offending.
Consistently with the verdicts I find that the complainant was, by reason of her intoxication, unable to give her free consent to any of these sexual acts. In that situation the issue of your state of mind emerges as a relevant matter. It is submitted to me that I should sentence you on the basis that you were reckless as to the matter of consent, rather than that you entertained an honest belief as to the complainant’s consent which the jury found to be unreasonable, as was submitted to me by your counsel. It is put by the State than an honest but unreasonable belief in consent would be inconsistent with the way the Crown case was presented. It submits that the case was run on the basis of recklessness and that is the way it was opened to the jury and closed and the end of the trial. It also refers to that evidence I touched upon a moment ago, that you had expressed a wish to have sex with the complainant to at least one other person some time earlier that evening. It says that that evidence supports its conclusion as to recklessness. The difference between the two bases goes to the objective seriousness of your offending and that is a matter which is relevant to the penalty the Court imposes.
I have reviewed the evidence and I do not think the way the Crown urged the jury to view the evidence is ultimately a sound basis for resolving the matter. First in relation to the statement that you would like to have sex with the complainant, made at least to Mr V earlier in the night, whilst I am satisfied that was said to him I am not persuaded that that evidence is relevant to your state of mind at the time of the offences, and I am not assisted by it for my determination of this point. I consider it to be a crudely expressed statement of desire, not a statement of intention to act upon that desire unlawfully, come what may, to force yourself onto the complainant whether she wanted you or not. In my view, it is properly characterised as an inappropriate statement borne of youthful immaturity fuelled by a little alcohol. As such, I do not treat it as evidence of predatory behaviour. The decisive matter on this point as far as I am concerned is the uncontested evidence that you stopped your actions, the subject of count two, when you were asked to do so. That fact evidences your awareness of the need for consent and the requirement to desist when it was made clear to you that the activity was not consensual. In my judgment that awareness is more consistent with an honest state of mind rather than one of reckless indifference to the matter of consent. Indeed I consider it to be wholly inconsistent with reckless indifference to that matter.
The jury also heard your evidence. You gave evidence of your belief in consent and you were not shaken in cross-examination on that point. They also accepted the evidence that the penetration, the subject of count two, was digital and not penile as alleged by the State. That was also your evidence. It is my conclusion that the jury, having heard all this evidence, has concluded that whilst you honestly believed in consent, your belief was quite unreasonable and having so concluded they were satisfied beyond reasonable doubt that the sexual intercourse which occurred satisfied the Code definition for rape and that the digital penetration was an indecent assault in accordance with the Code definition thereof.
I am of the view that they have determined the matter on the evidence rather than the State’s characterisation of the matter in its addresses. In my view, the evidence speaks louder than those words (by the Crown in their opening and closing address) and I sentence you on that basis.
The State submits that a significant sentence is required. By significant sentence I interpret it to mean a significant term of imprisonment. Those submissions have at their core the proposition that the seriousness of the offending prevails over considerations applicable by reason of your youth. There is authority to the effect that in circumstances where the offending is grave, youthfulness though still relevant effectively takes a backseat to other sentencing considerations, such as personal and general deterrence and the need for vindication of the victim. Your counsel submits that while all of the sentencing considerations are plainly relevant, your youth and your otherwise good character should be afforded pre-eminence, with the result that any term of imprisonment imposed should be wholly suspended.
There is no doubt in my mind that this offending is serious and the Court considers the need to punish you and to vindicate your victim is a very important matter in fixing sentence. But the Court also considers that your youth is equally relevant. I do not relegate it to a backseat in relation to other sentencing considerations. A mature response requires a sentence which affords to you an opportunity for rehabilitation; a sentence which recognises these offences are a product of your youthfulness and the poor judgment of youth. Aside from the very important obligation to acknowledge your victim and her circumstances, society has no greater interest than that you should become a good citizen.
I consider this to be a serious but not the most serious example of this type of offending. I pause to observe that that is a legal observation and does not diminish the seriousness of this matter from the complainant’s perspective or my assessment of the seriousness of the matter to her. I also pause at this point to say that sentencing, though it addresses different heads of consideration, is not a science, it is not a mathematical exercise involving the Court stacking together the various sentencing principles to arrive at a sentence. It is a process requiring an “instinctive synthesis” of relevant matters. The relevant sentencing considerations are these: personal deterrence, general deterrence, your youth, denunciation of your crimes, vindication of your victim and protection of the public.
Personal deterrence is directed at discouraging you from engaging in similar behaviour in the future. I consider that you are unlikely to reoffend. I discern that you are of sufficient intelligence to have learned from this experience.
General deterrence requires a sentence which sends a clear message to others that this sort of conduct will meet with a strong response from the Courts: one which will cause them to pause before falling into similar behaviour. Taking advantage of a vulnerable female is unacceptable. The community demands that it should be punished when it judges that it has occurred and the jury in your trial has so judged.
Your youth is a matter I have addressed. My sentence will reflect those considerations as matters of significance and pay appropriate regard to the force of the submissions made on your behalf by Mr Stevens.
In relation to protection of the public, I do not think that you will reoffend and I consider this to be a reasonable conclusion based upon the nature of the offending and to be the near inevitable result of this experience. This will operate on your consciousness for a long time. As such, I think that the risk to the public that you present is not a matter that assumes any great significance in sentencing.
It is the need to vindicate your victim that is the matter that requires careful consideration and of course, appropriate weight. I have read and have regard to her victim impact statement. It is testament to the fact that this episode has damaged her. I cannot ignore that. As the result of this offending it has been necessary for her to undertake counselling, a step taken after a considerable period of withdrawal from family and social life. She suffers anxiety. She described suffering self-esteem issues. All of the consequences of this offending were for her extremely serious.
Vindication of a victim of crime is not an exercise in revenge but it is an integral part of sentencing. That is because through the sentencing process the Court speaks for the community, and the community through the jury has spoken. Vindication of the victim denounces your actions. It upholds the victim – her physical and mental being. It recognises and responds to the consequences for her, of your crimes.
I turn to your personal circumstances:
You clearly have had a good upbringing. You have a good school record, a good work history and some sporting achievements. I have read and taken account of the character references provided to me. I am satisfied that this conduct is out of character, a conclusion reinforced by those character references. I take account of the fact that you have waited nearly two years to have this matter resolved. That has weighed heavily on you as borne out by the counsellor’s report. You appear without prior conviction of any type. I take account of the fact that you have committed no offences since, a matter that I regard as relevant to my assessment of future risk. I also take into account that any term of imprisonment will be a more difficult prospect for you than it may be for many. Until now you have lived at home, and you have enjoyed the care and the love of your family. They have been here with you throughout this trial. This support will be important to you in the future just as it has been in the past. I sense that it will be there and you should draw upon it. It is possible for you to be a useful member of this community notwithstanding this episode.
Having regard to all of these matters, my findings, the objective seriousness of the offending, the jury’s verdict, the relevant sentencing principles that I have outlined, I have determined that a sentence of imprisonment is required. I have determined too, that although there are three distinct acts, they arise from one episode and a global sentence is appropriate.
Mr P, I sentence you to two years and three months’ imprisonment. I turn to the question of suspending all or part of that sentence. Having determined that a term of imprisonment is appropriate, before requiring that it is to be served I must be satisfied that it is not appropriate to suspend that sentence. I will say that this has caused me great difficulty. On the one hand I am satisfied that you acted on an honest but unreasonable belief as to consent, and that you are unlikely to reoffend. You were 17 when you committed these crimes and you are now 19. You have no criminal record and a good history. You have come from a good home and have support and you have tasted incarceration albeit briefly whilst on remand. At the same time the vindication of the victim and the need for general deterrence require a strong response from this Court. The crimes for which you are convicted are serious. They have had a profound negative effect on the complainant. The sentence must acknowledge that. Young people at parties where there is alcohol must understand that there are limits on their behaviour. That consent requires active steps to ensure that it is present and a realisation that intoxication is directly relevant to another’s capacity to give that consent.
Weighing those matters carefully and reflecting on this case for some time, I have decided that it would not be appropriate to suspend the whole of the sentence. Rather I have decided that a proper balancing of matters requires that you serve 9 months of the sentence that I have imposed, backdated to when you went into custody. The balance of the sentence is suspended for 3 years on condition you commit no offence punishable by imprisonment in that time. The nett effect of the sentence is that you will be released in a bit over 8 months, because I have allowed for the time that you have already spent in custody. The balance of the sentence is suspended and provided you commit no offences punishable with imprisonment during that time that will be the end of the matter.
In relation to the register of sex offenders, pursuant to the terms of s 6, if I am satisfied that you do not pose a risk of committing a reportable offence in the future I need not place your name on the register. I am so satisfied. I have decided therefore not to place your name on the Register.