STATE OF TASMANIA v GARRY MAGEE 3 JULY 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Magee, a jury has found you guilty of one count of sexual intercourse with a young person, and another count of attempting to commit that crime.
I am required to determine the factual basis of sentence. The facts as found must be consistent with the jury’s verdicts. The verdicts resolve some but not all issues of fact. To the extent that they have not, I should only find a fact established which aggravates the seriousness of your offending if I am satisfied of that fact beyond reasonable doubt.
In general terms, it is clear from the verdicts that the jury were not prepared to act on the complainant’s evidence as to the events surrounding the commission of the crimes. If the jury had accepted her version in all respects, it would have found you guilty of count 1, and guilty of rape and attempted rape. The acquittal in respect of count 1 and findings of guilt in respect of the alternative charges on counts 2 and 3, are consistent with the jury accepting your version of events, but with satisfaction beyond reasonable doubt that you did not take all reasonable steps to ascertain the true age of the complainant. I intend to proceed on that basis. While the jury’s verdict in respect of counts 2 and 3 could also be consistent with acceptance of the substance of the complainant’s version, but with a finding that you had an honest and reasonable mistake as to the existence of consent, I am not satisfied beyond reasonable doubt of that version of events, and, accordingly, must proceed in accordance with the less serious version of the facts.
Accordingly, I determine the factual basis of sentencing to be the following. You met the complainant when you stopped to sit on the seat outside the library. I accept that the meeting was innocent and unplanned. You were returning from some social engagements, walking towards your home, and just wanted to rest. I think you probably had more alcohol to drink then you conceded in your interview with police, but that question has little bearing on the assessment of sentence. Shortly after meeting, the complainant suggested going for a walk. You and she walked down to the boardwalk near the beach. Shortly after arriving there, she suggested that the two of you go to your premises. You immediately asked her how old she was and she replied that she was 18. I have no doubt that at this point, you expected that she would engage in sexual activity with you, and that was the purpose of asking her age. I am also satisfied, consistently with the verdict of the jury, that in the circumstances, your acceptance of this answer constituted a failure to take reasonable steps to ascertain the complainant’s age. Indeed, I am satisfied that you actually had a strong suspicion if not a belief, that the complainant was under 17 years of age, and this is why you asked the question. In my view, this was the only reasonable conclusion available to you having regard to her appearance and presentation, and the immature nature of her conduct. I am satisfied that having got that answer, you decided you had complied with your legal obligation, without really believing that the answer was true. At the very least, you engaged in wilful blindness as to the question of her age. Common decency, not to mention your legal obligation, required far more than this. You could have asked to see some identification, or simply asked some further questions. In the circumstances of this case, in the absence of satisfactory evidence of age, the law required you to treat her as being under the age of consent, and to refrain from engaging in sexual conduct with her. This is particularly so given the very significant and obvious disparity in age between you.
I am satisfied that, after reaching your apartment, events proceeded largely as you described in your interview, which, apart from those related to count 1, was generally in line with the description given by the complainant. The sexual conduct included the penetration of the complainant’s vagina by your fingers. This was accompanied by the lewd acts and comments admitted by you in your interview. You then lay on top of the complainant and attempted to insert your penis into her vagina, but you were unable to do so because of your inability to achieve an erection. I will proceed on the basis that all of this happened with the actual consent, and indeed the encouragement of the complainant, as you described in your interview. Accordingly, your criminal conduct was not accompanied by any overt violence or force. Further, when she decided that she wanted to leave, she was able to do so without any interference or objection from you.
You are 64 years of age. You do not have prior convictions of any significance, and certainly nothing in the nature of the conduct involved in this case. You have in the past been married and you have two adult children. You have a reasonable work history. You have been afflicted by the disease of alcoholism for many years but it was only four years ago that you sought some help for that problem. With support, you have achieved sobriety, although this happened only a few months ago. The alcoholism has caused a number of complications with your physical health, including development towards the condition of alcoholic dementia. You are receiving counselling. You perform voluntary work, in particular, assisting at the local City Mission.
I accept that the fact that the complainant was 16 years of age, that she had initiated, encouraged and consented to the sexual activity, and that the conduct did not involve actual penile penetration and ejaculation, distinguishes the seriousness of this conduct from other examples of the crimes in question. On the other hand, the principal purpose of the criminalisation of such conduct is the protection of young people from exploitation, even if the young person has contributed to the occurrence of the conduct. This recognizes that young persons of a certain age are not necessarily mature enough to make decisions of this nature; decisions that may affect them for the rest of their lives. Notwithstanding that the complainant initiated and consented to the sexual conduct, I am satisfied that your culpability is at a relatively high level. The disparity in your ages and the opportunistic nature of the crimes, contributes to their seriousness and emphasises the need for general deterrence. These considerations, in my view, lead to the conclusion that there must be a sentence of actual imprisonment, although I intend to moderate and partially suspend the sentence in order to reflect your prior good character and the mitigating aspects of this case.
Garry McGee, you are convicted of the crimes of which you have been found guilty. I impose a global sentence of 12 months’ imprisonment. The sentence will be backdated to commence on 26 June 2019. The last eight months of that sentence will be suspended for a period of two years on condition that you not commit an offence punishable by imprisonment during that time. You are not eligible for parole in respect of the custodial part of the sentence.
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. Having regard to the circumstances of this case, and, in particular, the opportunistic nature of your conduct, I am not satisfied of that matter and, accordingly, must make an order. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of five years.