STATE OF TASMANIA v MJS 19 NOVEMBER 2021
COMMENTS ON PASSING SENTENCE PEARCE J
MS, you plead guilty to committing an indecent act directed at a child contrary to the Criminal Code, s 125B. The crime was committed on 30 January 2018, now almost four years ago. The complainant is a boy aged 9. You had become friends with his mother and for about a month you had been staying at the house in which she and the complainant lived, and you and he had developed something of a bond. On this day you took him to a recreational facility. After completing some other activities you both went swimming in the indoor pool and spa. When together in the spa, the complainant went underwater at which time you removed your penis from your shorts and showed it to him. His face came close to your penis. He was upset about what had occurred and removed himself from the spa.
When he went home he told his mother about it. She called the police. When you were interviewed, you told the police that you did not think anything of it at the time, and that you thought it was normal because of the type of banter which seemed to happen all the time in the house.
You are presently aged 43. You were 39 at the time. You have no prior convictions for sexual offences or offences of any nature against children. There has been no further offending. I have references and a report from a psychologist which I take into account. You have lived most of your life interstate. Your education and upbringing were unremarkable. You had a good employment and industrial record. You have always been close to your mother and father and remain so. You have a history of some difficulty in establishing and maintaining long term relationships. You came to Tasmania in 2013 following a period of personal hardship. For a considerable period, you devoted much of your time to volunteer work in the disability sector. That work led you to train and qualify as a carer, following which, in 2016, you obtained employment with a disability services and support organisation. Information given to me indicates that you were well regarded and that you used your experience as a musician to devise and lead programmes of much benefit to others.
Being the subject of a criminal charge has already had a considerable impact on you. You quickly resigned from your employment and returned interstate. The report from the psychologist indicates that the loss of your job and reputation as a person accused of a sexual offence against a child have led to a severe major depressive disorder. You feel overwhelmed by shame and have frequent thoughts of suicide. You are currently living with your parents and you are unable to return to work, at the moment at least, due to depression and anxiety, you are socially isolated, and struggle with basic tasks of everyday life. You have feelings of hopelessness but retain some intention to be a contributing member of society.
It is in your favour that you have pleaded guilty. There is no indication that there has been any adverse impact on the complainant. It is of course quite unsatisfactory that these proceedings have taken so long to resolve, but the pandemic has had a lot to do with that given that you have been living interstate. I am satisfied that you are strongly remorseful. A particularly significant factor in sentencing is the motivation for this offence. Whilst the plea of guilty involves an admission that exposure of your penis to the child was objectively indecent according to the standards of ordinary reasonable members of the community, you assert that it was an impulsive though stupid act, intended to be a joke, committed without realisation how it may be perceived and involving no sexual motivation or interest. Those propositions are not disputed by the State. That account is consistent with what you said to the complainant when he asked you why you had done it, and with what you told the police at the time. You adamantly denied to the psychologist any deviant sexual interest. She conducted a thorough risk assessment and assessed the risk of future sexual offending as low, although, unsurprisingly, the assessment model she used does not allow for definite prediction.
Under the Community Protection (Offender Reporting) Act 2005, the crime you committed is a reportable offence as a Class 2 offence. As a result, the Court is required to make an order directing that the Registrar under that Act cause your name to be placed on the Register and that you comply with the reporting obligations under that Act, unless the Court is satisfied that you do not pose a risk of committing a reportable offence in the future. If there is a risk which can be correctly described as a risk in a real sense, and not one that is farfetched and fanciful, then an order must be made. I have come to the conclusion that to sentence you on the basis that this offence was not sexually motivated, as I propose to do, is inconsistent with the proposition that the nature of this offence indicates any risk of a future sexually motivated offending. The circumstances of the offence, your age, the absence of any relevant prior convictions or subsequent offending, and the significant impact of the offence on you, all lead to the conclusion that you do not pose a risk of committing a reportable offence in the future in a real sense. What you have already suffered from your impulsive act and these proceedings should prove an effective personal deterrent. Accordingly, I will not make an order under that legislation. Similarly, having regard to the possible impact on you of a conviction, particularly in respect of your future employment prospects, for the reasons I have already enunciated in another context I have concluded that a conviction is not required.
MS, I order under the Sentencing Act, s7(f), that the proceedings be adjourned for two years and that you, without conviction, be released on condition that you enter into an undertaking to, during that period, be of good behaviour, commit no offence punishable by imprisonment, and appear before the court if called upon to do so.