STATE OF TASMANIA v MSL WOOD J
COMMENTS ON PASSING SENTENCE 21 DECEMBER 2020
MSL has pleaded guilty to one count of rape. He is also to be sentenced for the summary offence of common assault. The assault occurred several months before the rape but the facts are related, the two matters concern the same complainant and there are similar contextual considerations such as the nature of the relationship.
At the time of the offending, the complainant was in her late 20’s, the defendant was aged between 35 and 36. They were in a relationship for approximately 10 months between September 2018 and July 2019. During the period of their relationship they had separated a number of times. They did not live together, although the defendant would often stay at the complainant’s home, where she lived with her young son.
The assault occurred first, in November 2018. On or about 19 November, the defendant and the complainant and her son were at the complainant’s residence. The complainant and her son were sick with gastro and the defendant was staying and caring for them.
The defendant had been drinking and was affected by alcohol. The defendant and the complainant argued about the sexual aspect of their relationship. The defendant accused the complainant of cheating, and that this was the reason why she had not wanted to have sexual intercourse. He stood over her and poked her a number of times to her chest, yelling at her as he did so. The complainant was crying and frightened. The defendant told the complainant that she had five minutes to get naked and have sex with him or he was going to leave. The defendant left after she refused.
The rape occurred in July the following year. On 12 July, the defendant and the complainant were drinking and relaxing together at her residence. They went to bed at approximately 2:30am and lay in bed listening to music before falling asleep. The complainant was wearing a singlet top, underpants and pyjama bottoms. The complainant woke up, the defendant was touching her breasts under her clothing. While she was half asleep, he then placed his knee between her legs and moved her legs apart. He was then situated over the top of her between her legs and she was on her back. She was naked from the waist down, evidently while the complainant had been asleep, he had removed her pyjama pants and underwear.
While kneeling in this position, the defendant touched her to the vagina and/or genitalia. With one finger he penetrated her vagina, to a slight degree. While doing this, he ejaculated in his underpants. The entire incident lasted for a few minutes. The complainant did not move or speak; she was thinking to herself “this can’t be happening.”
The defendant laid down on the bed and pulled the doona over himself. The complainant turned the bedside light on and looked at him, but he pretended to be asleep. The complainant asked the defendant why he had touched her and he denied having done so.
The complainant got up out of bed, had a cigarette and confronted him, asking why his underwear was wet. He admitted it was semen but continued to deny he had done anything and said he had been asleep. Then he said it was her fault, she had placed his hand under her top and onto her breast and that she had been rubbing up against him. The complainant told him that she had a good recollection of what had occurred. She became angry and told him that what he had done was not right. He said that he was going to “do a runner”. The complainant told him to get out of the house and she was going to call the police. He grabbed his belongings and left. As he got into his car, he wound down his window and said to the complainant “you’ve got no evidence, prove it”. The complainant contacted police and later a friend, in a distraught state. The defendant called the complainant a number of times and sent a text message denying that he had done anything wrong.
Later that morning, police attended the defendant’s residence and he participated in a video recorded interview. He admitted assaulting the complainant in November the previous year by poking her in the chest. In relation to raping the complainant, he initially denied touching the complainant at all. Later in the interview, he admitted having inserted his finger inside her vagina. He said she did not say anything while that was happening but he had inferred that she was aroused. She had moved his hand on her breast and she had pushed her buttocks into him as she did when she was wanting sex.
He acknowledged to police he was in the wrong. He said he felt very bad about what had happened. He had probably ruined her life and his.
The defendant’s account of the complainant’s actions is not accepted by the State. It is not disputed that the defendant had awoken to find his hand on the complainant’s breast, but it is disputed that the complainant had placed his hand there. It is accepted that the complainant moved her buttocks against his groin in a way he interpreted as a positive indication given that in their relationship it had been a prelude to consensual intercourse. The State does not dispute that that may have happened, but if it did happen, it was an involuntary movement while the complainant was asleep. That is the basis upon which I proceed to impose sentence.
The defendant was arrested and detained for court the following day when he was bailed. He consented to a family violence order. He spent one night in custody. He found this a confronting and difficult experience.
The State accepts that the defendant did not intend to penetrate the complainant’s vagina without her consent, but rather, he was reckless as to whether she was awake during the touching, and reckless as to whether she was consenting. In other words, it is a case where he was aware of the risk that she was not consenting and proceeded regardless of that risk. Immediately afterwards, it was clear to the defendant that she had not consented.
The rape has had a substantial impact upon the complainant, and given rise to a serious exacerbation of her anxiety condition. It has affected her relationship with her current partner and she finds it difficult to trust people. As she says in her statement, she trusted the defendant and did not imagine he would do something like this. His conduct occurring in the context of their relationship was a serious betrayal of that trust.
The defendant is now 37 years of age. He has one relevant prior conviction for common assault in 2009. A fine was imposed. It involved pushing a female complainant. It did not occur in the context of a relationship and was not a family violence matter.
The defendant lives with a male, a long-term friend who is a supportive influence. He also has family support from his parents and an older brother.
He has two sons who have special needs and learning difficulties. They live with his former wife. The children stay with him every second weekend and he regularly has other contact as well which is arranged amicably. The defendant is a devoted father and he finds the prospect of a lengthy separation from his sons very difficult. He is concerned about difficulties his sons will have in coping with that separation.
He has a sound employment history and has stable employment as a car detailer/ cleaner. He sustained a work injury recently and is presently on a return to work plan. It is expected that he will make a full recovery. As well as being employed on a full-time basis, he runs a small business of his own, which he is interested in developing further, selling raised garden beds.
The plea in mitigation has highlighted the adverse impact that a period of imprisonment would have on the defendant. He would lose his employment, expects he would lose his accommodation and as mentioned, there would be the detrimental impact on his two young children.
In relation to the assault, the defendant had been drinking and was experiencing stress in various aspects of his life. The couple argued about the defendant corresponding with someone he had been in a previous relationship with. He has since recognised that his use of alcohol to excess affected his behaviour towards the complainant and that stress was a contributing factor. He has sought assistance from his general practitioner and was provided with a prescription for medication to assist him with abstinence from alcohol. It was successful and since then, his alcohol consumption has been irregular and at a modest level. He also consulted a psychologist to address the way in which he had dealt with stress and he attended five sessions and found that useful.
He pleaded guilty at a relatively early stage with respect to the assault, and disputed the facts. That dispute resolved without the need for a disputed facts hearing and an indication that it would resolve was provided by the defendant before the hearing date.
In relation to the rape charge, the defendant pleaded guilty at a late stage, just before trial. This was a saving to the State and saved the complainant the stress of having to attend court and give evidence.
I have a report from Forensic Psychiatrist Dr Michael Jordan dated 13 October 2020 which assesses his risk of future sexual violence. His risk of committing an offence of sexual violence is considered low. He observes that the defendant would find the environment of prison challenging and its effects could be disruptive to other spheres of his life. According to Dr Jordan, the legal process so far has been a significant deterrent to the defendant. Dr Jordan notes that the defendant may benefit from psychological therapy to improve his appreciation of boundaries within sexual relationships and develop more insight into how violence within relationships is wholly inappropriate. He could improve structures he employs to manage testing times within interpersonal relations.
I also have an assessment as to his suitability for home detention. He has been assessed by Community Corrections as representing a very low risk of reoffending. He is considered suitable for a home detention order. He is recommended for a community correction order and if an order was made he would be encouraged to undertake assessment and possible treatment with Holyoake Alcohol and Drug Service.
Rape is a very serious crime and would usually attract an immediate and lengthy term of imprisonment. There are factors in this case which must be reflected in the penalty: the breach of trust involved, the harm done to the complainant, the need to vindicate the complainant and general deterrence. Other factors bearing on the nature of the offending and culpability are that the penetration was to a slight degree and involved only one of the defendant’s fingers, the duration of the penetration was brief and it was a case of recklessness rather than an intention to perpetrate the crime without consent. It is a serious crime but not such a grave example that a term of imprisonment is the only option regardless of the circumstances of the offender and his prospects of reform. The indications are that MSL has good prospects in that regard, he has already recognised the need to reduce his alcohol intake and taken steps to modify his use. He is willing and motivated to co-operate with other support services regarding sexual boundaries and respectful relations. It can be seen from his comments to the authors of the reports that he has gained insight regarding the wrongfulness of his actions and is willing to attend psychological therapy to develop more insight. He is genuinely remorseful.
A home detention order is a relatively new sentencing option available to the Court. It has both punitive and rehabilitative aspects: King and Webb [2020] TASCCA 8 at [52]-[66]. As a sanction, it involves a substantial burden and involves a material deprivation of liberty. A home detention order has efficacy as a general deterrent and carries a considerable measure of deterrence and denunciation.
After careful consideration and given the options now available to sentencing courts, I am satisfied that the defendant can appropriately be sentenced to a sanction other than immediate imprisonment. I am satisfied that a home detention order coupled with a community correction order is a just sentence in this particular case.
MSL, on the two charges before the Court, I record convictions. In relation to the crime of rape, I impose a home detention order, for 18 months. I note your consent. The operational period is 18 months from today.
There will be the statutory core conditions including electronic monitoring for the whole of the operational period. These conditions will be specified in a written order that will be given to you. The home detention premises is your residence at [address]. In addition, I impose special conditions as follows:
- you must, during the operational period of the order, remain at [address] at all times, unless approved by a probation officer;
(b) immediately upon your release from Court, you must attend the Community Corrections office at 3 Terry Street, Glenorchy for induction with respect to this order;
(c) you must, during the operation period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections, and be accessible for contact by this device at all times;
(d) you must submit to the supervision of a Community Correction officer as required by that officer;
(e) you must not, during the operational period of the order, take any illicit or prohibited substances. Illicit and prohibited substances include:
i any controlled drug as defined by the Misuse of Drugs Act 2001;
ii any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your treating medical practitioner that you have been prescribed the relevant medication.
(f) you must not during the operational period of the order, consume alcohol, and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test or other test, for the presence of alcohol.
In addition to this home detention order, I also make a community correction order for a period of 18 months from today. The core conditions of that order will be set out in a written order given to you. Special conditions of that order are:
- You must, during the operational period of the order, submit to the supervision of a probation officer and submit to medical, psychological or psychiatric assessment, treatment or psychological therapy as directed by a probation officer. You must attend Relationships Australia for counselling if referred by a medical practitioner or directed by a probation officer.
- I impose a special condition of that order that within the period of the order you complete 119 hours of community service.
In relation to the common assault, I impose a community correction order for the same period, same terms and a special condition that you complete 35 hours of community service.
Having regard to the fact that his risk of committing a reportable offence is considered low, I make an order under the Community (Protection Offender Reporting Act) for two years.
Both matters before the Court are to be recorded on the defendant’s criminal record as family violence offences.