STATE OF TASMANIA v MN 21 DECEMBER 2022
COMMENTS ON PASSING SENTENCE WOOD J
MN has pleaded guilty to two counts of persistent sexual abuse of a child. He is the maternal grandfather of the complainants. He sexually abused one of the complainants, referred to as “H”, during a period between 10 June 2015 and 3 October 2019 from when she was 10 to 14 years of age. He sexually abused his other granddaughter, referred to as “B”, during a period from 11 April 2016 to 18 July 2020 from when she was 8 to 12 years of age. The total period of offending is five years and there is a period of approximately three years during which he was abusing both girls. The girls have the same mother and different fathers and lived in different households. B has always lived with her mother, while H lived with her father and step-mother. H’s father died in October 2018 and after that she remained living with her step-mother.
The defendant lived with his wife, and grandmother of the children, in Montrose. Often the girls would stay with their grandparents which was when many of the acts of abuse occurred. Their grandmother was unaware of the defendant’s crimes.
On 9 August 2020 the complainants reported to police that they had been sexually assaulted by the defendant. On 31 August the defendant was interviewed. While he made significant admissions about the crimes, with respect to a substantial proportion of the occasions, he also lied, shifting the blame to them and suggesting mutual sexual conduct and that the girls sexually touched him of their own initiative.
In relation to H, there are nine specific occasions of sexual abuse against a background of many occasions.
The first occasion involved oral rape, four indecent assaults, and two occasions of penetrative sexual abuse of a child. This was the first time the complainant can recall the defendant touching her sexually. She was approximately 10 years of age. She was at his home, in his care and alone with him in the lounge room. He made her touch his penis with her hand. He forced her to put her mouth on his penis by continually pushing her head down. He kissed her on the lips, touched her breasts, touched her genitalia on the outside of her clothing and then under her clothing. He licked her vagina and rubbed his penis around her vagina. He did not ejaculate. She did not know what was happening. Some of his comments to police reveal him distancing himself from responsibility and involving her in his perversity. Having admitted rubbing her penis on her vagina, he said his penis did not go in, because she was “still young” and that afterwards they watched movies together and he told her, “that was really beautiful”.
After this first incident, he touched her sexually on occasions when she went to his home. This progressed so that he sexually abused her almost every single time she stayed. This occurred approximately once or twice a month as well other occasions when she stayed during the school holidays. He also took her on holidays, abusing her then as well. During the offending behaviour he would often compliment her by saying she was beautiful and that he loved her. He also bought credit for her mobile phone on a weekly basis and asked her to call him every week to talk.
On the second occasion the defendant committed the crime of indecent assault, and two counts of penetrative sexual abuse of a child.
On this occasion the complainant was staying at the defendant’s home with her older brother. He was asleep in another room and the complainant was on the couch in the lounge room with the defendant. He kissed her and penetrated her mouth with his penis and tried to put his penis inside her vagina, penetrating her genitalia. He told her to be quiet. His conduct occurring when her brother was in the house, reveals his determination to abuse her and a brazen attitude and sense of entitlement. She was approximately 10 years old.
The third and fourth occasions occurred between 14 and 16 August 2016. The defendant took the complainant on a trip to Melbourne, and they stayed at an hotel in Collins Street, and slept in the same bed. The complainant was 11 years of age.
The third occasion involved one act of attempted penetrative sexual abuse of a child, two acts of indecent assault and three acts of penetrative sexual abuse of a child.
The defendant went to the shops and bought condoms and told the complainant that he did that because he thought it would help his penis fit into her vagina. He was fixated on achieving vaginal penetration. He purchased Jim Beam and Cola and gave the complainant some. He put the condom on his penis and tried to insert it, but despite significant effort he was unable to. He kissed her on the lips and breasts and performed oral sexual intercourse on the complainant and made her perform oral sexual intercourse on him. He inserted his finger into her vagina, and his tongue as well to a little extent. Afterwards, he took her to the football at Etihad Stadium.
The next day, occasion four, the defendant committed further unlawful sexual acts on the complainant, this time without a condom. He committed four acts of indecent assault, and four acts of penetrative sexual abuse of a child.
He kissed her on the lips, he made her touch his penis, he touched her genitalia, he performed oral sexual intercourse on her and made her perform oral sexual intercourse on him. He penetrated her vagina with his finger. He tried to insert his penis into her vagina, and ejaculated on the external part of her genitalia.
The fifth occasion occurred at the defendant’s home and involved five acts of indecent assault and three acts of penetrative sexual abuse of a child.
The complainant’s grandmother was not at the house and the defendant took the complainant to his bedroom. He undressed her and kissed her on the lips and touched and kissed her breasts. He pushed her head down, forcing her to put her mouth around his penis. He performed oral intercourse on the complainant and put his tongue inside her vagina. He penetrated her genitalia with his penis, tried to insert his penis into her vagina, but was unable to do so. He masturbated his penis and then held his penis against her genitalia and ejaculated. He touched her genitalia and made her touch and rub his penis.
Occasion six was a further specific occasion which occurred at the defendant’s home. He committed crimes involving four acts of indecent assault and two acts of penetrative sexual abuse of a child. On this occasion the defendant video recorded some of his sexual acts.
He played pornographic videos on a laptop which the defendant watched with the complainant. He then took her to the bedroom where he kissed her on the lips and touched and kissed her breasts and made her touch his penis with her hand. He placed his penis into her genitalia and tried to penetrate her vagina. He inserted his penis into her mouth. He touched her genitalia. He licked and kissed her vagina. He video recorded these acts so he could “see what it looked like.” The complainant did not see the video and the defendant told her he had deleted it.
Occasion seven occurred at the defendant’s home when he committed four indecent assaults and two acts of penetrative abuse of a child. This occasion occurred after her father’s death in October 2018, and before October 2019.
The complainant’s grandmother had gone out. She and the defendant were watching television. He threw a pillow at her. He often did this prior to sexually assaulting her, and it was an indication that he was going to abuse her sexually.
He took her to his bedroom and he carried out a similar sequence of sexual acts as before. He kissed her, touched her vagina/genitalia, she touched his penis, he had her perform oral sex upon him and he performed oral sex on her and then he ejaculated onto her genitalia.
Occasion eight took place during a weekend. On Friday 2 August 2019, the defendant took the complainant away for the weekend. He drove to the Big4 Ulverstone Caravan Park where he hired a cabin. He abused her in the same way as before. He kissed her on the lips, he touched and kissed her breasts, he made her touch his penis, he touched her genitalia, he inserted his finger into her vagina, he performed oral sexual intercourse on her and made her perform oral sexual intercourse on him, using force to push her head down. His penis penetrated her genitalia, not her vagina. He made her lie down while he masturbated his penis and he held his penis against her genitalia and ejaculated. This specific occasion gives rise to five acts of indecent assault and 4 four acts of penetrative sexual abuse of a child.
The ninth specific occasion took place when the defendant took the complainant on a trip to the Great Lakes in central Tasmania. The complainant did not want to go but knew if she did not go, her family would ask questions.
The defendant and the complainant stayed in a cabin at the caravan park and went fishing during the day. That night he threw a pillow at her. She tried to avoid “it” happening and told the defendant that she wanted to watch television, but she got scared and acquiesced.
The defendant kissed and touched the complainant, he performed oral sexual intercourse on her and made her perform oral intercourse on him. He put his thumb inside her vagina and moved it around. He tried to put his penis into her vagina but did not achieve penetration. He penetrated the complainant’s genitalia and moved his penis around. This occasion gives rise to one act of indecent assault and four of penetrative sexual abuse of a child.
This was the final occasion of sexual abuse. In 2020 he attempted to take her on a trip to Port Arthur but she refused to go.
I turn now to the four specific occasions of sexual abuse involving the child, B. The defendant sexually abused the complainant when she visited her grandparent’s house and they were alone. There were four specific occasions of sexual abuse during a period of approximately four years but these were not the only occasions. The sexual abuse would occur regularly when she visited her grandparents. It is estimated he sexually abused her at least ten times. She was about 8 or 9 when the sexual abuse commenced. It happened on more than one occasion in the shed.
There was a specific occasion during the evening when the defendant suggested they go to the shed to look at the telescope. When they were in the shed, he pulled down her pants, pulled down his own pants, put a condom on his penis and penetrated her vagina and/or genitalia with his penis to an unknown degree. He committed the crime of penetrative sexual abuse of a child. He took a photograph of her vagina. Afterwards, the complainant told her grandmother she felt sick and asked her to take her home.
There was another specific occasion of sexual abuse in the shed when the defendant committed two acts of penetrative sexual abuse of a child. The complainant was aged approximately 11 years of age. He had collected her from her house and took her to the shed. She was sitting on the couch and he turned her over onto her side to face him. He put his hand down her pants and touched her vagina and penetrated her vagina and/or genitalia. He removed his penis from his pants and penetrated her vagina and/or genitalia with his penis to an unknown degree. He did not use a condom and did not ejaculate.
Occasion three was an occasion in 2019 or 2020 when he took the complainant to Village Cinemas at Glenorchy to see the movie Frozen 2. During the movie he started to sexually abuse her. He touched her breasts on the inside of her clothing. He took her hand and made her touch his chest area but over the top of his T-shirt. He rubbed her genitalia on the outside and touched the inside of her genitalia with his fingers. He took her hand and put it down the front of his pants and made her touch his penis. He said to her, “we’ll do it in the car”. She moved away from him, putting an empty seat between them. Occurring in public in this way it was a brazen act, revealing his determination to abuse the child. This conduct gave rise to three acts of indecent assault and one act of penetrative sexual abuse of a child.
The fourth and last occasion of sexual abuse occurred when the complainant went to her grandparent’s house in around July 2020. She spent some time cooking with her grandmother while the defendant was at work, he arrived home during the afternoon and her grandmother went to her bedroom for a nap.
While the defendant and the complainant were watching television, he asked her for a cuddle so she went over and sat on his lap. He said “your things are starting to get bigger” a reference to her chest. He lifted her top up and started to feel and touch her breasts. He sucked on her breasts. He put his hand on the back of her head and forced her to put her mouth on his nipples. She did it because she did not want the defendant to get angry.
He stood up in front of her and told her to kneel down and he put his hand on the back of her head. He held his penis with one hand and forced her mouth open and put his penis into her mouth. He moved it backwards and forwards, with his other hand on her head.
He pulled down her pants and underwear and looked at her vagina. He took a photograph of her vagina on his phone while the complainant was sitting on the armrest of the chair. He showed her the photo and commented that she had hair growing there. While she was seated on the armrest he tried to put his penis into her vagina. He made her touch his penis. He touched her genitalia. He licked her vagina. The child’s grandmother woke up. He pulled up her pants and his own, and told her not to tell anyone. The defendant had not used a condom. In his interview with police he admitted trying to put his penis into her vagina but he said that she was very small, and there was too much ‘resistance’. He told police he deleted the photograph he took. During this incident he committed five acts of indecent assault, one act of oral rape and two acts of penetrative sexual abuse of a child.
The complainant did not return to her grandparent’s house. In August 2020 she disclosed the sexual abuse to her mother after becoming distressed at the prospect of going to stay with her grandparents. As a consequence the child’s mother asked the other complainant whether the defendant had ever touched her inappropriately and she became upset and disclosed that he had.
On 9 August, 2020 police executed a search warrant at the defendant’s house. His mobile phone was seized and text messages with H were found as well as photographs of pre-pubescent vaginas. The text messages with H include discussions about alcohol and some of them are sexualised in nature. When interviewed on 31 August he initially denied the crimes saying he had been impotent for the past 15 years following an operation. However, as specific allegations were put to him he made significant admissions about his conduct.
He said he knew he had abused his position of trust, but to him it was “innocent” and he loved his granddaughters. He said he did not know why he did it but he was truly sorry.
I have a victim impact statement from B who was 14 years of age at the time she provided it. She describes that when she was being abused she felt scared, sad and confused. Her education has been affected, she struggles at school and her friendships at school have been affected.
She has nightmares and cries at night. She finds it hard to trust males. Her relationship with her own father is affected, even though she knows he would never hurt her. She feels self-conscious and covers up with jumpers and jackets.
The court knows that child victims of sexual crimes such as this will almost invariably suffer lasting and pervasive emotional harm, often for all of their lives. They may never reach their full potential, their self-esteem and confidence is adversely impacted and relationships are often impaired. The sentence I impose today must adequately reflect the harm the defendant inflicted upon both complainants.
The defendant’s responses to police demonstrate a lack of insight regarding the gravity of his conduct and suggest a tendency to justify and minimise his actions.
He sexually abused his two young grand-daughters over a lengthy period of time and repeated his conduct again and again. For a period of three years he was abusing two children. He had plenty of time to reflect and alter the course of his behaviour. He knew the girls were in danger when they were with him and yet he continuously enabled them to be in his company and created opportunities for exclusive time with them.
He failed to see their vulnerability and failed to see the chilling perversity of his own conduct, and he demonstrated a complete lack of consideration for their lives and well-being. A stark example is that he persisted in the sexual abuse of one of his grand-daughters even after her father had died.
He treated them as sexual objects, driven by a completely self-centred desire for sexual gratification. He was well aware of how others would view his actions. He silenced the girls, and in various ways ingratiated himself with them and manipulated them.
I find his moral culpability for his acts of abuse to be very high.
The children were not willing participants in any of his sexual crimes. They submitted and acquiesced because of his position of authority as an adult and as their grandfather and also because of the nature of his behaviour which assumed an entitlement to act as he did and did not provide them with a choice. He commenced his sexual abuse when they were at a young age, exploiting their innocence and trust. As his sexual abuse became routine, it was normalised, and his entitlement and expectation became entrenched. The children acquiesced in the face of this unyielding pattern of abuse. It can be expected that all of these factors arising from his pattern of abuse and the sexualisation of his relationship with them is having, and will continue to have, a very disturbing impact on them.
He breached their trust profoundly. As their grandfather, he had been entrusted to care for them and protect them from harm. Instead, he preyed on them and inflicted irreparable harm.
He has no relevant prior convictions. He pleaded guilty at a relatively early stage. Before pleading guilty, he applied to have his bail revoked, forecasting his acceptance of responsibility. His pleas of guilty have relieved the complainants from the stress associated with giving evidence, and avoided the need for the State to prepare for a trial and the expense associated with that. He co-operated with the police investigation and presented to the police station to seek an interview, against legal advice.
He is to be given credit for his admissions which have provided the State with details of his conduct, some of which the State would not have had without his co-operation.
The defendant has experienced various difficulties and stressors over a number of years which have had a cumulative effect of him. He was in a heightened state of stress at the time of offending. However, there is no justification for treating this as reducing his moral culpability or as rendering him more vulnerable to offending.
He is 65 years of age, he suffers from sleep apnoea and is an insulin-dependent diabetic. He and his wife have been separated since his offending came to light. They have two adult children, their daughter is the mother of the two complainants.
He has a sister with whom he has a close and supportive relationship.
Throughout his working life, he has been a hard-working man who felt the responsibility of being the provider for his family. He commenced his employment history as an apprentice butcher ultimately purchasing his own butcher’s shop and building a very successful business. After one of his customers ran into financial difficulty owing him a considerable debt, his business had to close. He moved into taxi driving but suffered considerable financial loss when the value of licence plates were revalued by the government. He retrained as a security officer and held various responsible roles including as the security supervisor at the Federal Court. A considerable amount of stress and responsibility fell on his shoulders. Not only has he experienced significant professional stress but also personal stress as well. His wife suffered from post-natal depression for many years after their son was born with a cleft lip, requiring surgery and treatment. Their daughter was exposed to illicit substance use and anti-social peers when she was in her early teenage years and this caused him stress and concern for a number of years. Approximately five years ago his wife had a serious work injury and spent eight months in a rehabilitation facility in New Norfolk and he drove each day after work to spend time with her. When she did return home he took on the responsibility of her care and as well as home duties. At the same time their daughter was experiencing personal difficulties and child safety services removed her son from her care and placed him with the defendant and his wife. They tried to continue with that arrangement, but ultimately were unable to do so because of their grandson’s challenging behaviours.
While I accept that he was subject to significant pressures and stressors, more than most people have to deal with, I have no expert opinion to suggest a link with his offending. I do not doubt that he was depressed and lonely as a result of the stress and difficulties that he had been experiencing over a long period of time. He considers his depression and loneliness led to a reduced capacity to resist the impulse to sexually abuse his grand-daughters but without an expert opinion to substantiate that, it is no more than his perception. In reality, there is very little to mitigate the gravity of his criminal conduct.
Following his arrest, he attempted suicide and was admitted to the Royal Hobart Hospital for a lengthy period of a number of weeks. Following his discharge, he engaged with a psychologist Glynn Spaulding and attended nine sessions before going into custody. Since being remanded in custody he has sought the assistance of a psychologist. He is employed in a trusted position within the prison and is studying university foundation courses.
He has formally expressed his interest in the sex offender program, but will not be eligible until he is sentenced. He intends to pursue all the opportunities offered to him for his rehabilitation.
He is very sorry and ashamed of the harm he has caused the complainants and his family.
These matters are a positive indication that he is willing and motivated to address the underlying factors in his offending. This is an important consideration when considering the risk that he poses to the community on his release. I expect over time and given psychological intervention he may gain further insight regarding the gravity of his conduct.
MN, a heavy sentence of imprisonment is required in order to be an effective deterrent to others who may be minded to abuse children. The protection of children is the court’s paramount concern and general deterrence is of critical importance in the sentencing task. The sentence must reflect the gravity of each and every specific occasion of abuse, and the harm inflicted upon two victims, their families, and the community which suffers too, when trusted adults abuse children in this deplorable way.
I record convictions and I impose a global sentence across both counts of 13 years’ imprisonment backdated to 17 December 2021. You are not to be eligible to apply for parole until you have served half of that sentence. That sentence of 13 years has been reduced to allow for your pleas of guilty and co-operation, and the discount applied is in the order of 25%. Absent that reduction, a sentence of 17 and a half years would have been appropriate for your crimes, in the order of eleven years on count one and six and a half years on count 2, with those periods each reflecting a reduction for the cumulative effect of the two sentences and considerations of totality. Having allowed for the discount, I fix a sentence of 13 years’ imprisonment.
I am required to specify the sentence which I would have imposed for each crime, had I been sentencing for each of them separately, rather than imposing a global sentence. As with the global sentence, these notional separate sentences have been adjusted for totality and the discount mentioned for your pleas of guilty. I would have imposed 8 years’ imprisonment on count one and 5 years’ imprisonment on count 2.
I make an order under the Community Protection (Offender Reporting) Act 2005 that you are required to comply with the reporting requirements for a period of 20 years.