STATE OF TASMANIA v MJE                                                                        5 MAY 2023

COMMENTS ON PASSING SENTENCE                                                         GEASON J

 You have pleaded guilty to persistent sexual abuse of a child, indecent assault, the production of child exploitation material, and the possession of child exploitation material. When you committed these offences you were aged between about 35 and 41 years. You are now 44 years old. The complainant in respect of the first count of persistent sexual abuse of a child was your son, who is now aged 20 years but was aged between 11 and 16 years during the period of your abuse. The complainant in respect of the other counts, is now aged 19 years, and was 14 years old when you offended against him. You and your family lived in various places in Australia before returning to this State to live in 2014. You are a chef by trade and when the family returned to Tasmania you worked at a local hotel and later at a local restaurant. You first lived in southern Tasmania before moving to another suburb and it is was here that your son has his first memory of you touching him in a sexual way. You lived in this suburb for around twelve months until about June 2015 by which time your son was 12 years old. The children of your relationship with your wife, had been home schooled, but in the second semester of grade 6 when the family moved to a house in another suburb in southern Tasmania your son attended the primary school. It was here that he met a friend who became the subject of your offending captured in counts 2 and 3. That friendship lasted throughout their high school years. Between about June 2015 and June 2016 whilst the family was living at this address your sexual abuse of your son increased. This would typically occur at night time when you would go into his bedroom. Your practice was to first check to see if he was asleep. It was only when you thought he was asleep that you would proceed to sexually assault him by pulling down his pants and masturbating him until he ejaculated.

It was not however the case that your son was always asleep and there were times when he would be awake or become conscious during the course of your conduct thereby forming memories of your sexual assaults upon him. He estimates that in this period you would sexually  assault him in this way on average once a month. In around June 2016 the family moved to another suburb in southern Tasmania. Your abuse of your son increased in frequency though I observe his awareness of what was occurring had also increased. Your practice of checking first to see that he was asleep before sexually abusing him continued.

Throughout this period your son felt unable to say anything to anyone about what was happening, including to his mother with whom he describes a difficult relationship during this time. Apart from one occasion, even when he was aware of your sexual assaults upon him he was unable to do anything to stop it and would lay there frozen and pretend to be asleep. He neither said nor did anything to try to resist you. The first episode captured by count 1 on the indictment occurred at an address in southern Tasmania. Your son was sharing a bedroom with his younger brother. He recalls waking up and becoming aware that you were in the bedroom, sitting next his bed, with your hand down his pants touching his penis. He recalls that at one point you illuminated the screen on your phone, and seeing your licence, with your picture on it, which made him aware that it was you doing this to him. He describes panicking and going into shock. He believes he may have fallen back to sleep, and has no memory of moving or resisting you in any way during the course of this assault.

The next episode was in 2015 whilst the family was on a camping trip. The family had a 12 man tent which was divided into four internal rooms, and your son was sharing one room with his brother whilst you and your wife sleep in a room which was effectively in the middle of the tent. During the course of this particular night, his inflatable mattress deflated and upon telling you that this had occurred, you told him to get onto your mattress which he did. He was on your side of the mattress. He fell asleep, but later woke up and became aware that his pants were down and you were touching his penis. He believes he moved causing you to stop, but when he awoke the next morning he noticed his pants were still down.

The third episode occurred following the family’s move to an address in southern Tasmania. By this time, your abuse of your son sometimes occurred every second night although the frequency varied. This particular occasion happened just a couple of months before events lead to him leaving the family home. By this state he had his own bedroom and was sleeping in a single bed. You came into his room late at night and after checking to see if he was asleep, you removed his pants and played with his penis for a period of time. He does not recall how long this lasted for, or whether he ejaculated though he recalls occasions when that did occur. You said nothing to him on this occasion, and he recalls that you only ever did so, as a means of seeing if he was awake. Sometimes you would turn on the light to see if your son was awake, and if he was you would tell him to go asleep. On other occasions you would put your head into the room and quietly call out his name, and if he did not respond you would enter the room and sexually assault him. On this episode, after you had finished you left your son’s bedroom and returned to your own bedroom upstairs.

The next episode also occurred in his bedroom at an address in southern Tasmania. He was asleep and woke to your presence. He became aware that you were sitting on the floor next to his bed with your hand under his doona and in his bed about to touch him. By this stage he had become tired of your constant sexual abuse and responded by kicking you hard in the arm. You were on the floor for a few seconds before you left the room, but you returned to his bedroom about an hour later when he kicked you again. You left the room, not returning and not assaulting him on that night.

The next episode happened shortly before your son left home in October 2019. This is the last time that he remembers you sexually abusing him. He heard you coming down the stairs to his bedroom. This was in the early hours of the morning, and thinking your son was asleep you removed his pants and started playing with his penis for five minutes or so before he fell asleep. He has no other memory of this occasion beyond that.

In October 2019, he had a heated argument with you and your wife. This arose because you wanted him to do some jobs to help the family, and considered he was not responding to your requests because he was always on his phone. The conflict escalated culminating with you punching him and him leaving the home. He left without belongings and sort assistance from friends. It was this situation that led to him first disclosing to his friends and then not long after that to a counsellor at his school that he had been sexually abused by you.

This in turn led to police becoming involved and he first spoke with them on 2 December 2019 when they recorded an interview with him during which he describes your sexual abuse of him. Following this police spoke to his mother, your wife, his friends and a school counsellor. On 3 February 2020 they conducted a search of your home where they seized a number of items including a Lenovo computer and a Acer computer. Both were sent for digital examination. Later that day police spoke formally with you. You were arrested and taken to the Hobart Police Station where a video record of interview was conducted. In the course of that interview you admitted to hitting him in the context of the argument over chores around the house, but you denied ever touching your son in a sexual manner. In that interview you recalled going camping with the family, you agreed that the family stayed in a 12 man tent, you recalled the episode involving the inflatable mattress, but denied that your son ever sleep on the mattress with you saying there would not have been enough room.

You told police that you would go into your children’s bedrooms at night to check on them and make sure that they were asleep, that you would shake your son awake when he was talking in his sleep just to make sure he was ok. You claim to have no memories of the sexual assault which occurred at an address in southern Tasmania.

Following the interview your mobile phone was seized. You were charged with common assault in respect of the October 2019 incident and informed that the allegations of sexual assault would be further investigated.

After the examination of the computers, a number of short videos or live photographs depicting a young boy asleep were revealed. Nine of those images constitute child exploitation material because in some of those images the boys genitals are exposed and in others the hand of a person is seen holding this boy’s penis. Police initially thought that these may be images of your son. They showed him those pictures, or at least the non-sexually explicit ones, to try and identify the person depicted. Your son was able to identify the person as his friend. Following this police spoke with that person who confirmed that the images were of him and that he had no prior knowledge of those things happening to him. By this time you and your son and that friend all worked at a local restaurant during which period you had fostered a close personal friendship with that boy to the point where occasionally there would be messages sent between you expressing love for one another.

Digital examination of the images established that they were taken on 11 December 2017, that they were backups from an Apple IPhone with a user name Mike, and the files contained location data disclosing where each image was taken. That data showed that each image had occurred within ten meters of your address. The bedding in the images was identified and later seized from your home. The boy still owned the boxer shorts he was wearing in the images and they were also collected.

The nine images were all taken whilst that boy was sleeping on his back. The first depicts your hand holding his boxer shorts down to expose his penis and pubic region. The second is another image depicting the same contents. The third depicts a hand inside the front of the boys boxer shorts which are covering his genitals though a small section of his genitalia can be seen at the bottom of the right leg of the boxer shorts.

The next two images depict the same content as the first. The next is an image of the boy’s boxer shorts lowered to expose his penis which is being held in your hand. You have pulled the boy’s foreskin back to expose the tip of his penis. The next image depicts the same content as the first image. The remaining images are copies of earlier images.

All videos have been classified in accordance with the Australian Child Abuse Categorisation Scheme as category 2 and in particular depictions of real post pubescent children under the age of 18 approximately between the ages of 13 and 18 with a child involved in a sexual act or the material focused or concentrated on the child’s genital regions.

In addition to the images of that boy a video depicting a male aged between 30 and 40 years engaged in sexual acts with a boy who appears to be approximately eight years of age was found. The video runs for about 105 seconds and was created on 1 September 2015. The file name is “cute 8 year old little boy Trevor and daddy sex”. It depicts a prepubescent boy approximately eight years old with an adult male both of whom are naked throughout the video. It commences with the boy lying on a bed with the adult lying above him rubbing his penis against the boy’s penis. It transitions to the adult performing oral sex on the boy for a short time before the boy is moved to a position lying above the adult. The boy then rubs his penis against the adult’s penis until the video concludes. This video is a category 1 depiction of a real prepubescent child under age 13 years involved in a sexual act or involving depictions focused on the child’s anal or genital regions.

At this point police interviewed you a second time. This occurred on 1 July 2020 in Hobart. You admit to police to having look up pornography in the past but said that it was not something you had made a huge habit out of.

You denied looking up child pornography and when several websites you had visited were pointed out to you, you denied accessing all of these sites.

You were shown a still image of your son’s friend. You denied knowing the person but recognised the doona cover as one owned by your family. You said that you knew that boy and that he was one of your son’s friends who had stayed over at your address and had previously worked for you. You denied ever going into that boy’s bedroom or taking photos of him whilst he was staying in your home. You denied ever touching him inappropriately. When shown the image depicting that boy with another person’s hand also depicted, you acknowledged that the scars on the arm looked similar to yours. You said that you had no memory of ever doing anything with that boy. You said that you thought that the images you had seen were disgusting. You acknowledged that the arm shown in that image appeared to be yours. You acknowledged that the image appeared to have been taken whilst that boy was in bed and holding onto his penis. You then claimed not to know what is going on in the images and claimed not to remember any of the websites or taking photos. You claimed to have been drinking heavily during the period 2017 to 2019, having a distant relationship with your wife and smoking marijuana. You concede that when you had drunk or smoked you would get on your computer to look at these things. You described feeling alone and broken during this period, stated that you do not remember a lot of what had happened, and that it scares you to think that it is possible.

In the course of the interview you did conceded that it was possible that you may have looked up some of these sites adding that it is horrific stuff. You stated that you did look up male and male pornography adding that you probably just click on the links – that this was something you had suppressed all your life. You described yourself as bi curios.

You acknowledge that you had previously looked up pornography depicting people who look younger than they are and specifically males who look as if they are under 18 years of age. You said you did not recall whether you specifically searched for pornographic sites relating to a man and his son.

Following the interview you were arrested and charged in respect of the indecent assault and the associated child exploitation material relating to your son’s friend.

On 18 November 2020 you were arrested in relation to the persistent sexual abuse of your son, following a review of the investigation materials by the Office of the Director of Public Prosecutions.

The Court has received victim impact statements from each of the complainants. Each discloses significant trauma caused by you. For your son he was confronted with not knowing on any given night whether he would be visited by you and forced himself to stay awake. He desperately wanted your behaviour to stop, but he was to scared and worried to tell anyone. He believed if he told his mother it would destroy the family and she would be left to raise six children on her own. He was forced to stay wherever he could find, sometimes with friends, but eventually on the streets. He was terrified of most of the people he confronted there. He was often cold and wet because he could not find shelter. He spent nights in the tunnels near the ABC roundabout just to get out of the rain and wind. He slept on cold hard ground. He describes people looking at him in that situation, with disgust. He was lonely. All he wanted was a normal family. He still struggles with sleep and has nightmares. He struggles to focus on work and study. Because of your late plea he has had to prepare for Court, and that has been stressful. He had to describe in detail the things that had happened to him, to people he did not know.

His friend describes your conduct towards him as sole destroying. You pretended to be someone you were not, in order that you could hurt him. The consequences of your behaviour are continuing. He describes himself as having become unreliable, and having lost enthusiasm for work. He describes restaurant and kitchen smells triggering traumatic memories of your conduct. He no longer copes well with stress, reacting instantly and defensively if he feels threatened. He has become paranoid about the safety of his home, and describes finding it impossible to relax. He is receiving regular counselling from the Sexual Assault Support Service. He believes the abuse has ruined his life. You compounded the seriousness of your conduct in respect of that boy, by recording it, something which is humiliating and degrading in itself. It aggravates the seriousness of your offending against him.

Your offending against both boys occurred while you were in a position of trust responsible for their care. That fact is obvious in respect of your son, because you are his father entrusted with responsibility for his care and protection. The offending against his friend, occurred whilst he was in your home. You fostered a caring and trusting relationship with him which meant he felt safe with you, safe enough to sleep over at your house.

One of the offences against your son occurred whilst he was under the age of 13. All of your offending occurred whilst other people were in the house.

All of these matters are aggravating and that aggravation is given statutory force by s 11A of the Sentencing Act.

I have heard from your counsel on your behalf. There is very little that can be said in mitigation. I accept that your guilty plea represents an acceptance of responsibility for your conduct. I accept that the guilty plea vindicates the complaints made against you and thus complainants. I am prepared to accept that though a late plea of guilty, it discloses remorse for your conduct. It is regrettable that acceptance of responsibility did not occur sooner because each of the complainants has had to prepare for trial and be confronted by the significant stress and worry associated with it.

I have been told that you were born with a tumor in your right eye, with a result that one of your eyes has been removed, that place little weight on that fact.

Your childhood is described as dysfunctional and family life characterised by abusive conduct – physical, verbal and emotional and that you struggled with your home situation throughout your childhood and into adolescents. You were bullied at school. You were forced out of the family home at the age of 15 and became homeless living in and out of youth shelters on the North-West Coast. As a result you dropped out of school without completing year 10.

You were introduced to alcohol and cannabis while living on the streets and this became a problem for you. It has turned out to be a continuing issue. It took you a number of years to overcome the initial problems with alcohol and marijuana. You obtained employment as a 16 year old working in take away shops and restaurants ultimately becoming a qualified chef. You married your wife in 2002 and that relationship ended with the bringing of these charges.

Whilst I accept that you have little or no recollection of what you did most nights, due to excessive alcohol and drug consumption, you accept that this does not excuse or explain your behaviour. I am prepared to accept in part the submission made to me that your comments to police exhibit an awareness of the serious wrongfulness of your behaviour, your intoxication inhibiting that awareness. Of course, it is clear for the purposes of sentencing you that yourself induced intoxication is not a mitigating factor.

You appear to be in state of poor mental health, and you have spent time in suicide prevention units in Launceston and a mental health rehabilitation centre.

I accept in relation to the child exploitation material that there has been no distribution of the material you produced.

The obligation proposed in the Court in respect of sentencing you, is a significant one. The community has the duty to protect its children, and the courts have an important role in re-enforcing that. The sentence the Court imposes must serve to deter others from succumbing to the temptation to take advantage of opportunities to harm children. Children are vulnerable to such risk, whether within families, schools or other social groups. Whilst I do not doubt that the drivers for behaviours such as yours require addressing through treatment and mental health care, punishments which serve to re-enforce the message that anyone who takes advantage of vulnerable children will be meet with significant punishment is required.

The Court must also punish you for your behaviour and mark its condemnation of it. It has a duty to vindicate your victims who have bravely come forward to articulate the consequences of what occurred.

Having regard to the prolonged nature of your offending, the aggravating features to it which I have already made reference, the significant consequences upon your victims, the need for punishment and general deterrence and having regard to the sentencing patterns and practices of this Court for this category of offending, I have determined that on the indictment a sentence of 8 years’ imprisonment is appropriate. I have determined that you should not be eligible for parole until you have served five years of that sentence.

In respect of the individual counts, I would have imposed a sentence of five years’ imprisonment in respect of count 1; two years’ imprisonment in respect of count 2, cumulative to the sentence imposed in relation to count 1; one years’ imprisonment in respect of count 3, and one years’ imprisonment in respect of count 4, that sentence to run concurrently with the sentence in respect of count 3. The global sentence I have imposed takes account of the need to address the principle of totality in fixing the ultimate sentence.

In respect of the Child Protection Offender Reporting Act I have determined that you pose a risk of committing a reportable offence in the future, and that in all the circumstances it is appropriate to require you to submit to a reporting period under that Act for 30 years.

In relation to the forfeiture orders sought by the State, those orders are made.