STATE OF TASMANIA v RAYMOND PATRICK LARKIN 6 DECEMBER 2022
COMMENTS ON PASSING SENTENCE BRETT J
Mr Larkin, you have pleaded guilty to 2 counts of the aggravated offence of using a carriage service to menace, harass or cause offence, involving the transmission, making available, publication and distribution of private sexual material.
You committed the offences when you used an internet social media platform to send intimate sexual images and videos of the complainant to two men. You and the complainant had been in a relationship between February 2020 and October 2021. Despite the end of the relationship, you and she remained in contact with one another, at least until the time of this offending. You had been served with a police family violence order for her protection but its terms did not prevent contact between you. This order was in place when you committed these offences.
The first offence was committed on 30 January 2022. You sent five videos and 32 photographs by Facebook messenger to a man whom you knew to be the former partner of the complainant. All of this material contained sexually explicit images of the complainant, including of her performing intimate sexual acts. You sent a message with it which can only be described as demeaning and offensive to the complainant. The man in question had not had prior contact with you.
On 6 February 2022, you sent three videos and 32 images through the same internet platform to another man. The material sent on this occasion again consisted of sexually explicit images of the complainant and was largely similar to that which had been sent on 30 January. The recipient on this occasion was a long-term friend of the complainant. You knew of but had never met him. However, before sending the material, you telephoned him and during the course of the conversation, disclosed that you still held intimate images of the complainant. This man asked you to provide them to him and you did so.
You had acquired this material with the consent of the complainant during the course of your relationship, and retained it after the relationship came to an end. Clearly, the images and videos were provided to you by the complainant in the context of personal intimacy and on the basis of the trust inherent in your relationship. It is obvious that she trusted you to keep this material private and not show or give it to anyone else. Your counsel tells me that your explanation for your conduct is that you were angry because you had been told by the complainant’s daughter that she had entered into sexual relationships with other men. This simply provides a motive for your offending, it does not constitute mitigation and, in particular, does not reduce your significant moral culpability. In fact, it supports the conclusion that you acted out of jealousy and possessiveness, and that these were vindictive acts, intended to humiliate, intimidate and hurt the complainant. Your conduct is also consistent with an intention to punish and control the complainant. This is borne out by the fact that on 23 January 2022, one week before committing the first offence, you sent the complainant an email in which you threatened to send sexually explicit images and videos to her friends. You acted on this threat a week later, and repeated your criminal conduct one week after that. Your counsel suggests that you acted impulsively and in anger after you had been drinking. I have no doubt that you acted out of anger but your actions were not impulsive. Your actions were considered, deliberate and persistent. Further, the fact that you may have been affected by alcohol when you sent the material does not provide you with mitigation. In fact, it supports the need to emphasise personal deterrence in this sentence, because it suggests that when you are disinhibited by alcohol, you are more likely to take action such as this. I regard your moral culpability for this offending as extremely high.
As is to be expected, the offending has had a significant impact on the complainant. I agree with prosecuting counsel that the complainant has eloquently described the devastating and ongoing psychological and emotional effects of what you have done to her. Your criminal actions have affected her life in a wide-ranging way and these consequences are likely to continue well into the future. The impact is precisely what can be expected from conduct such as this. Indeed, recognition of the severe consequences of such offending was one of the reasons expressed by Parliament for its decision to increase the penalty for this offence in early 2021.
You are 48 years of age. Your criminal history is relatively lengthy but it is exclusively constituted by traffic offending. You are currently fully employed as a diesel mechanic and have a strong employment history. You have three children aged between 11 and 18. You see them from time to time but they do not live with you. There is nothing else in your personal circumstances which reflects adversely on your character.
In December 2014, you suffered a traumatic brain injury in a quad bike accident. I have been provided with material both from the Tasmanian health service and material this afternoon that relates to a period up to the end of 2018. Neuropsychological assessments conducted within a few months after the injury indicate that you had made a good recovery, although the last report in November 2018 suggests ongoing areas of concern in respect of memory and cognition. This is also supported by the short neuropsychological comment that has been provided to me today. There is also general reference throughout the material to ongoing psychological sequelae, including suicidal thoughts. Your counsel does not submit and there is nothing in the material which would suggest any causal relationship between these ongoing issues and the commission of these offences. Your counsel suggests that this material supports a conclusion that the injury has resulted in greater impulsivity, and that this may be related to your offending because you acted impulsively when you committed these offences. As I have already indicated however, I do not accept that you acted impulsively, and in any event, I see little support for this proposition in the material provided to me. I take into account the injury and ongoing consequences in a general way in respect of your personal circumstances, but otherwise, I consider that they have little effect on the assessment of sentence.
The decision by parliament in 2021 to increase the penalties for this offence recognised the inherently serious nature of such conduct, its prevalence and the enormous harm that can result from it. The use of the Internet means that such crimes are easy to commit, and can have far-reaching consequences. Although it is not suggested in this case that the recipients distributed the material any more widely, there was clearly potential for that to occur and once the material had been sent to them, neither you nor the complainant had or have the capacity to control further distribution. This uncertainty contributes to the ongoing impact on the complainant. Further, such offending will, as it has in this case, inevitably involve a significant breach of trust. It involves a direct attack on the victim’s privacy and sense of personal security. Its use as a form of coercive control and a powerful and extremely harmful emotional and psychological weapon is obvious. For these reasons, I regard general deterrence and denunciation of such conduct as important if not the most important sentencing considerations.
You are entitled to mitigation from your early pleas of guilty. You entered these pleas when the case was before the Magistrates Court. I acknowledge that the guilty pleas have had a significant utilitarian benefit. They have provided the complainant with vindication and certainty in terms of the outcome of the prosecution, as well as relieving her of any need to give evidence in court. They will save considerable time and expense by avoiding a trial.
Your counsel submits that I should also regard the guilty pleas as some evidence of remorse and contrition. I think I must give you the benefit of the doubt about this, although I note that when you spoke to police you blamed the complainant for “pushing buttons”. Ultimately, the primary relevance of remorse is to inform the need for personal deterrence. Notwithstanding your demonstration of remorse by pleading guilty, I think that personal deterrence remains a relevant sentencing consideration, particularly having regard to the persistent and deliberate nature of this offending.
In my view, the serious nature of this offending and the need to emphasise general deterrence and to denounce such conduct, compels the conclusion that the only appropriate sentence is an immediate term of imprisonment. However, in fixing the length of the head sentence and the actual term to be served in prison, I will have regard to the mitigating factors including your plea of guilty.
The orders I make are as follows:
- You are convicted of the offences to which you have pleaded guilty.
- You are sentenced to a global term of imprisonment of 15 months. The sentence will commence on 26 November 2022. I direct that you be released after serving 7 months of the sentence upon giving security by recognisance in the sum of $5,000, conditioned that you be of good behaviour for a period of two years from today.
- In accordance with s 16F of the Crimes Act, I explain to you that if you fail to comply with a condition of the recognisance, in particular, if you fail to remain of good behaviour, including by committing an offence such as this during that time, you may be summonsed to appear before the Court and, if a breach has been established, you may be called upon to forfeit the amount of the recognisance, or the order may be revoked and you may then be required to serve the whole or part of the sentence. Further powers that the Court has in the case of a breach of a condition of the recognisance is to require you to perform community service, extend the recognisance period or take no further action. Finally, I am required to explain to you that the recognisance may, at any time during its currency, be discharged or varied in accordance with the provisions of the s 20AA of the Crimes Act.