STATE OF TASMANIAN v M G R 14 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr R, you have been found guilty by the jury of three counts of unlawful sexual intercourse with a young person under 17 years of age. You were, of course, acquitted of the primary charges of rape and perverting justice.
The verdict is consistent with your evidence as to the relevant events. You have never denied that sexual intercourse took place on the occasions in question, but have always claimed that it occurred with the consent of the complainant. Having regard to the manner in which this case was presented to the jury, the only reasonable conclusion available from the verdict is that the jury was not satisfied beyond reasonable doubt that the acts were without the consent of the complainant. I am satisfied that the factual basis of sentencing should be in accordance with the version contained in your testimony.
The complainant was 16 years of age at the time of commission of the crimes. You were well aware of her age because you had known her for some years before that. The sexual conduct commenced when you and she lived in adjoining houses, she with her parents and family, and you with your wife at that time and children. She was friendly with your entire family but your evidence was that you were conscious of her flirting with you for some time before these crimes were committed. Your evidence also was that two earlier acts of sexual intercourse took place shortly after she turned 16. These acts are, of course, relevant to provide context for the commission of the crimes, but you are not to be sentenced for any earlier conduct, because that conduct does not constitute a crime of which you have been found guilty.
I am satisfied that the crimes in question occurred in about December 1994, which was approximately two months after the complainant had reached 16 years of age. By that time, you and your family had moved to a house on your family property. You and your wife at that time had two children of your own and, as I understood the evidence, were caring for other older children from your wife’s previous marriage. Your wife was pregnant with your third child. The complainant came to stay there for a weekend because she was friendly with your wife and children, and, of course, you. During the course of that weekend, you engaged in vaginal sexual intercourse with her on two occasions, and oral sexual intercourse on another occasion. I will proceed on the basis that, as you said in your evidence, each act was the subject of the consent of the complainant. Obviously, each act occurred when your wife was not present. On one occasion, it took place in a car during a shooting expedition in which only you and the complainant were participating. The other two occasions occurred in the house, once when your wife was away from the home, and the other after you had returned from the shooting expedition and your wife had gone to bed in another room. It seems that your wife discovered this conduct a short time after the weekend. You confessed to her and had nothing further to do with the complainant
I have been presented with a victim impact statement, and I have also heard the complainant’s evidence that she has suffered emotional problems in the intervening years. However, it was also clear from her evidence that she did suffer, it would seem quite extensively, from sexual abuse at the hands of her father, and it is impossible for me to conclude that your crimes are solely or even primarily responsible for this impact. However, the law that makes sexual intercourse with a young person a crime exists because of the potential impact on young people of premature sexual activity at a time when they are not old enough to make informed and mature decisions about such matters. The crime exists to protect young people from exploitation and from the consequences of their own ill-considered decisions and conduct. I will proceed on the basis that there is likely to have been some ongoing impact from the commission of the crimes, but without being able to identify any specific impact.
You are now 52 years of age. You were 27 years of age at the time of commission of the crimes, 11 years older than the complainant. You have no criminal history of significance and have led an industrious working life. I have read the numerous attestations to your good character. It would seem that that is consistent with your lack of criminal history, with what your employer has to say about your work, and the fact that you have been in a long term position and obviously are a valued employee of that establishment. My conclusion is that, in all respects other than the commission of these crimes, you are a person of good character.
Any crime involving sexual penetration of a child is a serious matter. General deterrence is a very important sentencing consideration. However, the modest disparity in your ages at the time of commission of the crimes, and the consensual nature of the conduct, distinguishes these crimes from other more serious examples of the type. A further mitigating factor, as submitted by your counsel, is your claim in evidence, that you believed that the lawful age of consent at that time was 16 years of age. The fact that you did not engage in any sexual conduct with the complainant, before she reached the age of 16, despite her flirting behaviour that you described, is some evidence which supports this claim. On the other hand, I am satisfied that you did not make any sensible enquiry about this question but simply relied on your own impression and understanding of the age of consent which was, of course, inaccurate. I take into account also that you admitted this conduct to your then wife and family at a relatively early time, soon after it happened, and that you have never disputed the occurrence of the conduct in these proceedings. You have also experienced the trauma, expense and inconvenience associated with defending the charges of rape, of which you have now been acquitted. This includes what I have been told today about the effect of the process on your physical health. Finally, I take into account your lack of prior convictions and otherwise good character.
Balancing these factors, I am satisfied that a wholly suspended sentence of imprisonment is the appropriate sentencing order. Such a sentence reinforces the serious criminality involved in such conduct and contributes to general deterrence, because it is in fact a sentence of imprisonment. However the suspension of the sentence recognises the various mitigating factors, and provides you with an opportunity to avoid serving the sentence. Given that the only condition which I intend to impose is the statutory condition that you are not to commit an offence punishable by imprisonment during the relevant period, and having regard to your history of not committing criminal offences, I think there is a very high chance that you will avoid serving an actual sentence. However, if you do commit an offence within the relevant period, then you must expect to serve the sentence that is imposed. Accordingly, the sentence I impose is one of 15 months’ imprisonment which will be a global sentence across the three counts. This sentence will be wholly suspended for a period of two years on condition that you are not to commit an offence punishable by imprisonment during that period.
I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. I am conscious that that is a high standard, because I have to be satisfied that you do not pose any risk of committing a reportable offence in the future. In this case, quite rarely, I am satisfied of that matter. In arriving at that conclusion, I have taken into account that you admitted responsibility for your conduct when confronted by your wife shortly after the relevant events. There is no evidence that you have committed any similar conduct since that time. You certainly have not been convicted of any further offences of any significance and, in particular, involving any form of sexual conduct. The relevant acts were committed when you were 27 years of age and you are now 52. I am satisfied that there is no risk that you will commit a reportable offence in the future. I decline to make an order under that legislation.