STATE OF TASMANIA v MJW 19 JULY 2019
COMMENTS ON PASSING SENTENCE PEARCE J
MJW, you plead guilty to maintaining a sexual relationship with a young person. The offending took place during the period of just over two years between 1 September 2012 and 13 September 2014. The complainant, a female, was 14 at the start of that period and 16 by the end. You were then aged between 47 and 49. You were a long term friend of her parents, and, after your relationship broke down earlier in 2012, you started spending more time at their family home in a rural town in northern Tasmania. You and the complainant became friends. You shared mutual confidences; her about problems with her boyfriend and siblings and being bullied at school, and you about your relationship breakdown and children. You began communicating almost daily by text message, social media and on the telephone. Over time the communications took on a sexual tone. You exchanged intimate photographs. Physical contact including kissing and touching commenced. The first unlawful sexual act took place when the complainant, aged 14, agreed to perform oral sexual intercourse on you by sucking your penis to ejaculation. Over the course of the relevant period she did this twice more. After that first unlawful sexual act, the sexual activity continued and escalated. While watching television at her family home you performed oral sex on her by removing her pants and licking her vagina. That is the second unlawful sexual act. At the time her parents and brother were asleep in the same house. The first instance of vaginal sexual intercourse occurred in May 2014 not long after the complainant turned 16. It took place in the caravan in which she slept in the yard of her family home. That is the third unlawful sexual act. Between then and September 2014 you had intercourse on other occasions at different places including in the complainant’s caravan, in your own van in which you slept when staying with the complainant’s family, and in the complainant’s family home when no-one was around. On one such occasion the intercourse took place on the couch in the lounge room. That is the fourth unlawful sexual act.
The offending ceased when, late at night on 13 September 2014, the complainant’s father discovered her walking back from your van and confronted her. They argued and she ran off. On that night a further instance of vaginal sexual intercourse, and either indecent assault or aggravated sexual assault, had taken place. On the following day, after the complainant came home, she told her mother about what had been happening and the police were notified. The State alleges that, on this final occasion, the intercourse was without consent and was thus rape. You admit that sexual intercourse and another sexual act occurred, but claim that both acts were consensual. I heard evidence so as to resolve the dispute. Some facts are not in contention. You were present at the complainant’s home. You had an engagement nearby the next day. The complainant’s parents were there, as was the complainant and her friend T. All shared an interest in music and during the evening you sat around playing and singing. Some alcohol was consumed. The complainant said that she had two glasses of a mixture of a spirit and a soft drink made for her by someone else. At the end of the evening the complainant went to her caravan with T. You went to your van at the opposite side of the house and went to bed. In the early hours of the morning the complainant and T left their caravan, walked to your van, knocked on the door and went in. The complainant’s evidence is that she went there because she felt that she had to apologise to you for something, although she cannot remember what. She says that her next memory is waking up alone with you in your van with your fingers in her vagina, and then waking again with you on top of her on the floor with your penis in her vagina. She said that she told you to stop but you continued until you ejaculated. In her evidence she claimed that she had earlier felt “surprisingly affected’ by the alcohol she consumed, much more so than she usually would have after having consumed two drinks.
You gave evidence that you were asleep in your van when there was a knock. You opened the door and the complainant and T came in. You talked for a while before the girls argued between themselves and left. A short time later there was another knock and the complainant returned, removed her pyjama trousers, climbed into your bed and asked you to perform oral sex on her, after which there was consensual vaginal intercourse. Your version is corroborated by T, to the extent she is able to do so. T’s evidence is that before the complainant left her own caravan on the second occasion she said words to the effect that she was going back to your van to have sex with you. Both you and T gave evidence that the complainant did not appear to be unduly affected by alcohol.
Without wishing to understate the seriousness of the admitted conduct, I am not satisfied beyond reasonable doubt of the truth of the complainant’s account of the circumstances of the final unlawful sexual act. I could not reach that state of satisfaction without rejecting your evidence and T’s evidence as false. I do not do so. I think that there is at least a reasonable possibility that the version the complainant gave, and has maintained, was initially made up to cover for the sexual conduct with you which she knew to be wrong. There is no reasonably plausible explanation for such a profound loss of consciousness as she describes. The alcohol she had was consumed some time earlier. She managed to walk to your caravan, and was, after the confrontation with her father, sufficiently unaffected as to be able to run off to a neighbour’s house some distance away. I also consider it unlikely that she would have taken her friend to your van at such a late hour just to apologise, or that, having done so, her friend would have left her there alone if there were any outward sign that she was so affected by alcohol or otherwise unwell. Because I am not satisfied beyond reasonable doubt that the complainant did not consent, or that you put your fingers in her vagina, I will sentence you on the basis of your admitted conduct, that is, that you had unlawful sexual intercourse with the complainant on that occasion after having indecently assaulted her by licking her vagina.
Whilst I am not satisfied that you are guilty of having sexual intercourse without the complainant’s consent, which would have added significantly to the seriousness of your crime, your conduct is nevertheless very serious. Consent to the sexual acts distinguishes this case from more serious examples of the crime, which sometimes involve younger children and non-consensual sexual activity. However the law is in place to protect those who lack the emotional maturity and judgment to protect themselves from the physical and psychological harm which premature sexual activity is presumed to cause. In this case, there is a disparity in age of more than 33 years. Because of your friendship with the complainant and her parents you were a liked and trusted adult. The opportunity to offend arose because of the trust placed in you by the complainant’s parents, which you breached. You initiated sexual contact when she was 14 which was repeated over a considerable time. There is little indication of continuation in the face of resistance or distress, which would be an aggravating factor, but you persisted in the face of her expressing unease about some sexual acts and pain on at least the first occasion of vaginal intercourse. You maintain that your attitude to the complainant was loving and caring, that you provided one another with mutual support in times of difficulty, and that the disparity in emotional maturity is less. When giving evidence you said that, because of the emotional state you were in, you did not really even think about her age or whether you should be in a relationship with her. You said that you seemed to “see eye to eye” and that she brought you happiness. I reject your evidence that you did not appreciate that your conduct was wrong. I find you encouraged secrecy for that reason, although the complainant was complicit in keeping the relationship from becoming known. Your evidence demonstrates a considerable lack of insight into the wrongfulness of your conduct. The difficulties in the complainant’s life about which she confided in you at the commencement of the relationship, and her age at the time, made her vulnerable to the type of emotional pressure which led to, and then normalised, sexual activity.
The complainant is now 21. As is frequently the case, the passage of time and increased maturity has led her to appreciate the effect on her of what has happened. She feels deprived of a normal emotional and sexual development. She experiences feelings of shame, betrayal and anger. She has bad dreams and panic attacks and has attempted self-harm. She has had counselling and treatment for her mental health and takes anti-depressants. It is possible that there are other factors at work but she impressed me as an intelligent person and the type of emotional and psychological impact she complains of is what may be expected for a young, emotionally immature person who has become involved in a relationship of this nature. I have little doubt that your crime is a substantial contributing factor. The effects of crimes like this can be profound and long lasting, and further effects may not emerge for many years.
You are now 54. You have pursued a variety of occupations during your life including as a well-regarded professional musician. You have three adult children. I accept that the breakdown of a relationship in 2012 was very difficult for you, but that does not excuse your conduct. You have no relevant prior convictions. You are entitled to mitigation from your plea of guilty which was offered at a relatively early stage. It indicates a willingness to facilitate justice and avoided a trial. I will reduce the sentence I would otherwise have imposed as a result. The disputed facts led to delay and meant that the need for the complainant to give evidence was not entirely avoided, which was no doubt distressing for her. However the dispute concerned an important matter which was resolved in your favour. I take into account the number and nature of all of the specified unlawful sexual acts. Although the unlawful acts continued over a period of more than two years, the vaginal sexual intercourse took place during the period of four months or so between May and September 2014 when the complainant was 16. However all of the acts are to be considered as part of a prolonged course of sexual misconduct. The sentence must reflect the need to protect the community by deterring you, and others who may be tempted to act in a similar way, to punish and denounce such acts and vindicate the complainant. You were taken into custody on 4 July 2019 and so the sentence will commence then.
MJW, you are convicted. In light of the nature and circumstances of this crime, I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period of three years from your release. I sentence you to a term of imprisonment of three years and six months from 4 July 2019. I order that you not be eligible for parole until you have served half of that sentence.