STATE OF TASMANIA v MWI 20 DECEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
MWI, you have pleaded guilty to one count of persistent sexual abuse of a child, one count of penetrative sexual abuse of a child and one count of possession of child exploitation material. The first count of persistent sexual abuse of a child was committed against your then partner’s daughter, who I shall refer to as “A”. The abuse occurred when she was aged between 7 and 11 years of age. The abuse was ongoing and frequent, occurring almost daily. The crime of penetrative sexual abuse was committed against a child who has been described as your goddaughter. I shall refer to her as “S”. Her parents were close friends of yours. The abuse occurred when S was aged between 8 and 10 years and staying overnight at your residence. The child exploitation material that was found in your possession related to a mix of photographs of A and S that had been taken by you on occasions you were sexually abusing them, or when you made them pose with sex toys or they were in the shower. There were also images of young girls taken from the internet depicting female children in sexually provocative poses. In total you possessed 118 images classified as child exploitation material.
You formed a relationship with A’s mother, whom I shall refer to as M, in 2016. Your criminal behaviour against A started approximately two years’ later and continued until August 2022. During this time you and A’s mother did not live together but you were regularly at her residence and the children were regularly in your care. In respect to A there are ten specified occasions relied upon by the State as constituting the persistent sexual abuse of a child crime, but those occasions occurred in the context of ongoing and persistent abuse over the four-year period. The abuse consisted of you regularly touching A to her breasts, vagina and buttocks area, both over and under her clothing, kissing her on the lips, making her watch pornographic material, using sex toys on her and photographing her when she was using those sex toys. You orally penetrated A’s vagina. You digitally penetrated her vagina. You frequently filmed yourself doing these things.
The particular occasions relied upon by the State are as follows:
- Occasion 1
When A was 7 years old you took her shooting. You touched her to her breasts, vagina and buttocks underneath her clothing. A was scared, she knew you had firearms. You told her not to tell anyone.
- Occasion 2
When A was staying at her aunt’s house with the rest of the family, you entered the bedroom where she was and forced her to lay still. You touched her body and then kissed her on the lips. A indicated she was uncomfortable. Later that night you made A sleep in your bed and you touched her to her vagina, breasts and buttocks. You again told her not to tell anyone.
- Occasion 3
When A was approximately 8 years old and the family were camping, you told A to put on a bikini. You then touched her to the vagina and breasts underneath her clothing.
- Occasion 4
Shortly after A’s 11th birthday, you made her drink alcohol. You then told her she had to remove all her clothing. When she refused to do so, you hit her to the arm and back with a spoon. You then made her watch pornographic material and touched A on the vagina. You photographed this sexual abuse.
- Occasion 5
In July 2022, when A was at your place, you made her dress up in a bikini and then touched her on the vagina and breasts. You made her pose for photographs.
- Occasion 6
When A was at your house, you directed her to rub a sex toy on her vagina and you photographed her while she was doing so.
- Occasion 7
At your house, you set up a camera and then filmed yourself licking A’s vagina and buttocks. You made her watch You Tube videos whilst you performed oral sexual intercourse upon her. Later that same evening, you made her touch your penis.
- Occasion 8
On an occasion when you were recording on a camera, you touched A on her buttocks and then penetrated her vagina with your finger. You recorded yourself perpetrating this sexual abuse.
- Occasion 9
You put lubricant on your finger and inserted it into A’s vagina. You then moved it in and out for a period, telling A she ought to relax.
- Occasion 10
On 28 August 2022, when A was at your house, you made her sit next to you on the couch and you touched her vagina under her clothing.
As can be seen, the sexual abuse of A was persistent, demeaning and humiliating. Whilst you are to be sentenced for the specified occasions, the uncharged conduct I have referenced is relevant to your moral culpability generally, and highlights the enormity of the situation faced by A. The fact you photographed much of the sexual abuse is aggravating in my view. It exacerbated the lack of control A had over the situation. She had no way of knowing what you may do with such photographs, introducing the added concern that you may share them on the internet, meaning her sexual abuse would be public and enduring.
The sexual abuse of S occurred between 2016 and 2018, so immediately before your sexual abuse of A began. S was at your place having a sleep over. You touched her vagina and then penetrated her genitalia with your finger. Again, this was not an isolated occasion. Over a two-year period, you sexually abused S. You would make her dress up in costumes, usually revealing ones, and would photograph her. You would regularly touch her on the vagina, both over and underneath her clothing. As with the abuse of A, you are only to be sentenced for the single occasion of penetration that occurred in respect to S and not the uncharged conduct, but again, the uncharged conduct speaks to your moral culpability and places the singular act into context.
In August 2022, A disclosed to a friend that you had been assaulting her. She was referred to the Strong Families Safe Kids advice referral line and M was notified of the disclosure. Sadly, M claimed that she was not concerned about A’s safety around you and described A as a “typical tween who blames others for things she has done”.
On 6 September 2022, you were interviewed by police. You denied all allegations, including taking naked photos of children.
On 10 October 2022, police executed a search warrant at your residence. A number of devices were seized for forensic examination. Those devices were found to contain child exploitation material. You were subsequently interviewed by police. During the interview you were shown a number of the images that had been located on your devices. Only when confronted with the images did you admit taking the photographs of A and S when they were naked in the shower. You also admitted that you would tell A and S how to pose and admitted that when you stored the photographs, you would add commentary to them, such as “target practice” with reference to the child’s mouth. You admitted you would make A and S dress up in costumes and pose with sex toys. You admitted that you photographed A holding a sex toy and made her describe what she did with it. You also admitted performing oral sexual intercourse on A and admitted to directing A to play with your penis. You also described an occasion when A performed oral sexual intercourse upon you. This behaviour was not specified with enough particularity to be identified as a specific occasion but, again, it is reflective of the extent of the abuse that you perpetrated upon A during this time. You also admitted to penetrating S’s genitalia with your finger. You admitted masturbating after touching A. Despite your admissions, you denied a sexual interest in children generally.
Contrary to your denials, my assessment is that the combined effect of your behaviour, the photographing of your abuse, presumably so you could preserve the moment and return to it, and your possession of the general child exploitation material, is reflective of you having a high level of interest in young children. This is relevant to assessment of future risk and also to the need for a sentence that reflects personal deterrence.
Text messages found between you and M confirmed that M was aware of the abuse you were perpetrating upon A, and also, concerningly, confirmed that after you were interviewed by police in September 2022, you continued with your abusive behaviours. For example, between April and May 2023, you made requests for M to send you photographs of A in the shower and you would direct her as to what you wanted the photographs to portray. At times you told M to “make them perform for the camera … I want a fucking show”. When M indicated to you that A was reluctant you said that you did not care and that she was “to get it done”. You also directed M to put all the child exploitation material onto a flash drive.
The continuation of the abuse after police intervention also speaks, in my view, to the level of interest you have in young children. I note M was charged with failing to report the abuse of a child and was dealt with in separate proceedings. It is not necessary that I outline the factual basis of that charge, suffice to say it is apparent from the text messages that were exchanged between you and M that you both were shamelessly prepared to be involved in the sexual abuse of A for your own sexual gratification. That must have made the situation all the more traumatic for A. The breach of trust associated with these crimes is simply appalling. Parity, however, is not a relevant sentencing consideration given the markedly different criminal behaviours committed between you and M.
Your crimes have had a terrible impact upon your victims. I have received Victim Impact Statements from both A and S. Both statements describe the terrible impact crimes of this nature have upon child victims, and reveal the pervasive, and probably lifelong harm that your crimes have caused. Both complainants experienced fear, shame and confusion and have been left with a sense of mistrust and betrayal. A’s relationship with her mother has been badly affected. Destruction of family relations is sadly an all too common consequence of sexual abuse perpetrated within families and is indicative of why crimes involving such a fundamental breach of trust must be condemned by courts.
You are 48 years of age. You have no relevant prior convictions, but as is often said, that provides little mitigation in a case of this nature. Your good character enables the abuse. You have a strong work history, having worked all your adult life in either the forestry industry or in Parks and Wildlife services. You have achieved much in your professional life, being elevated to a position of Sector Commander, where you were responsible for commanding some 160 people during fire fighting exercises. You were well regarded and respected in your employment. However, in 2016, following conflict with a colleague, you were removed from your position and demoted to what you describe as a “desk job”. This was a stressful and difficult time for you and your self-esteem suffered. You were also impacted financially. You became depressed and anxious. It was not long after this that you met M. You found the relationship with M confronting at times. Apparently, she was highly focussed on sexual activities. Your consumption of both alcohol and cannabis increased during the relationship with M. Some of the crimes occurred whilst you were intoxicated, but that in no way excuses them.
I have been provided with a forensic psychological assessment in respect to you. I take it into account generally, although I note to the extent it references Verdins considerations, no reliance is placed upon it. Your Counsel accepts Verdins considerations do not arise in this sentencing exercise. The report confirms the events in your employment in 2016 had a marked impact upon you. It left you feeling worthless, and you developed depression. You began using alcohol to excess in an endeavour to feel better about things. The psychologist considers you also turned to sexual behaviours in order to “soothe your feelings” and used inappropriate sex as a coping mechanism. Whilst I accept your depression may have made you more susceptible to engaging in activities that boosted your mood, the length of time over which the abuse was perpetrated, the recording of the abuse by way of photographs, the possession of the child exploitation material generally and the fact the abuse continued even after police intervention, satisfies me that the abuse was a consequence of your sexual interest in children and there is not a direct nexus between your depression and the offending which mitigates the crimes.
The seriousness of your offending hardly needs to be stated. Both A and S were in a position of trust in respect to you. They were in an environment within homes where they were entitled to feel safe and protected, yet you took advantage of them and abused them. In respect to A, your abuse was persistent and went on for an extended period. She was very young – aged between 7 and 11. As I have already noted, your abuse of A and S was exacerbated by the humiliation associated with you taking photographs of the abuse. I note the aggravating factors set out in s 11A of the Sentencing Act. Here, both girls were under your care, supervision, and authority and both girls were under the age of 13 years. Some of the abuse you perpetrated upon A occurred in the presence of another person, namely her mother, and on one occasion you plied her with alcohol prior to the abuse.
The factor of overwhelming importance in sentencing matters of this nature is protection of children. To the extent it can, the Court must endeavour to protect children by imposing sentences which punish offenders and act as a deterrent to others. The objective seriousness of your criminal conduct, your moral culpability for it and the overriding sentencing objectives of general deterrence, vindication of the victims and denunciation means the only possible sentence is a significant term of imprisonment. For the crime of persistent sexual abuse of a child, a defendant should receive a sentence that reflects the sentence he would have received if charged with the specific occasions that fall within the charge, but which allows for the fact that he is being sentenced for a number of incidents. The final sentence imposed must be moderated so that it is just and proportionate to the totality of the offending. At the same time, the sentence must adequately reflect the gravity of each specific occasion of abuse, the appalling breach of trust, and the profound and lasting harm caused.
You are entitled to credit for your pleas of guilty. They entitle you to a reduction in the length of your overall sentence because they have avoided the need for a trial. The giving of evidence at a trial, in front of a jury, would have undoubtedly been difficult and confronting for the complainants, and it would have risked re-traumatising them and therefore adding to the harm that you have already caused to them. I accept your pleas of guilty facilitate the course of justice and are indicative of some acceptance of responsibility.
It was submitted on your behalf that you are remorseful for your behaviour. Whilst I accept that may be the case now, with the reality of your predicament prominent, that was not your immediate response. After police intervention, you continued to offend, and some of the text messages you exchanged with M clearly indicated that you did not accept responsibility for your own actions and looked to distribute blame elsewhere. I am told, however, that you have undertaken some counselling and have developed a greater insight and understanding into the harm that you have caused and now have a greater appreciation of the abhorrence of your conduct. It can only be hoped that such understanding is genuine and it will offer some protection into the future against a repeat of this terrible behaviour.
I intend to impose a global sentence in respect to all matters as, in my view, that best reflects the fact that some of the sentencing aims, for example punishment and deterrence, are common to all crimes but equally recognises the criminality attached to your behaviour in respect to each complainant, and the separate harm that you have done to each of them. Accordingly, pursuant to s 11(3) of the Sentencing Act, I am required to specify the sentence I would have imposed, upon your pleas of guilty, had I sentenced separately. These indications are not adjusted for proportionality or totality. They are:
- Count 1 – a term of imprisonment of seven years;
- Count 2 – a term of imprisonment of three years;
- Count 3 – a term of imprisonment of 18 months.
With appropriate allowance now being made, I make the following orders:
MWI, you are convicted of all matters for which you have entered pleas of guilty. In respect to all charges, I impose one sentence. You are sentenced to imprisonment for a period of 10 years, commencing 23 April 2024. But for your plea of guilty, I indicate I would have imposed a sentence of 12 years. I order that you not be eligible for parole until you have served one half of the period of imprisonment imposed.
I make an order under the Community Protection (Offender Reporting) Act 2005, directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for a period of ten years, following your release from custody.
The forfeiture orders are made in terms of the State’s application.