STATE OF TASMANIA v PCH 27 MAY 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
The accused has pleaded guilty to one charge of indecent assault under s 127(1) of the Criminal Code and to one charge of aggravated sexual assault under s 127A(1)(a) of the Code. The accused entered pleas of guilty in relation to both matters in the Magistrates Court at Hobart on 14 August 2024. The Court convicts the accused on both charges.
The more serious of the two charges is the charge of aggravated sexual assault. The circumstances relevant to that charge are that when the complainant was aged 13 or 14 and in year 7 at high school, on a day during the mid-year school holidays, she was home alone at the family residence. Her mother and the accused (who is her step-father) were at work that day. The complainant was getting ready to go to a friend’s house. The accused came home from work at lunch time unexpectedly. He entered through the back door of the house and into the kitchen where the complainant was located. He confronted the complainant. He was angry because of a conversation he had had earlier with a group of males who lived in their street. The males had told the accused that the complainant had not been attending her friend’s house as she had told the accused but instead was going to bushland and engaging in sexual activity. The accused was angry that the complainant had apparently been lying to him and breaching his trust. The accused confronted the complainant regarding what the males had told him. She denied it. He then pushed her to the ground and fell down with her. He then said to her “I’ll show you what sex is all about”. He then forcefully attempted to remove her trackpants and underwear. The complainant kicked him to the head and shoulders in an attempt to fight him off. He pulled her trackpants and underwear down to her knees. He then forcefully penetrated her vagina with his fingers which lasted for a few seconds. The accused then took his hand away.
The complainant got up and ran to the bathroom and hid. A few moments later the accused appeared with some money and asked the complainant to go to the shop and buy some milk. The complainant went to her friend’s house as previously planned. She did not tell anyone about what had happened.
The background to the offending involving indecent assault is that when the complainant was aged 13 or 14 and in either grade 7 or 8 at high school, she was home sick one day with a cold. Her mother and the accused were at work and her step-sister was at school. She was home alone in bed. At around lunch time the accused unexpectedly returned home from work. He entered the complainant’s bedroom with a container of Vicks VapoRub and told her he was going to rub Vicks into her chest to assist her with the cough. The complainant asked him not to do so. The complainant was lying in bed wearing pyjamas. She did not have a bra on under the pyjamas. The accused sat on the complainant’s bed and undid the buttons of her pyjamas exposing her bare chest and breasts. He proceeded them to rub Vicks VapoRub into her chest area directly onto her skin. He did this for a few minutes before moving from the top of her chest to her breasts. He began rubbing his hand over her breasts, making skin on skin contact with the whole breast area including the her nipples. He did this for approximately 15 minutes.
During the incident the complainant laid still with her face turned to the wall. The accused did not say anything to her. After he stopped the accused returned to work and the complainant did not tell anyone about the incident.
The complainant subsequently reported the incidents to the police. The aggravated sexual assault charge was laid on 23 May 2024 and the indecent assault charge was laid on 11 June 2024.
On 22 September 2023, under caution, the accused volunteered information to the police about the matters and made full admissions in relation to the incidents.
The accused stated, in the context of the charge of indecent sexual assault, that he went into the complainant’s room to put Vicks on her chest to help her with her cough. He said he did not go in there with any idea of doing anything wrong but when he went in there he did do something that “turned wrong”. He undid the top button and another button may have popped open. He was rubbing her chest and another button popped open and that is when it happened. He said that he knew that he was touching her breasts. It lasted two to three minutes according to him. His hand came into contact all over her breasts including her nipple. He has no explanation as to why he continued to do it. He claimed it was not sexual but admitted to being “aroused a little” by it.
Regarding the charge of aggravated sexual assault, the accused stated that the complainant was at school that day. He said that three young males approached him and told him that the complainant was “up the bush getting the ass screwed out of her when you think she’s at a friend’s place”. He waited for the complainant to come home from school and he questioned her about the allegations which she refuted. She was wearing her school uniform. He said he believed she had broken his trust and then said to her “well I’ll show you what sex is all about”. He accepts that he put her on the floor. He accepts that he put his hands down her pants and touched her vagina. He said it was something he did in a fit of anger and regrets it. He immediately told her that they needed to tell her mother but she did not want to. The statement by the accused is not accepted by the State nor does not State accept that the behaviour arose out of anger rather than sexual desire. The accused said that he did not know what he was trying to achieve and it was all done in the heat of the moment and he cannot say why he did it.
The accused has not spent any time in custody in relation to these matters. The accused has no relevant prior convictions. The complainant has provided a victim impact statement to the Court. In that statement the complainant noted that she was very young when the accused entered her life. She said that when the sexual assaults occurred she was terrified and paralysed by fear. She said they changed her life and that prior to then she was an innocent happy little girl. She said she has had difficulty coping. She said the assaults caused her to be shy and wary of others and that they robbed her of “so much, my innocence, confidence, self-esteem and the future I could have had.” She said that she has never resolved these issues. She also said that the events affected her self-worth and that this has been reflected in the toxic relationships she has had as an adult. She said she was forced to leave home to escape her step-father. She said she was forced to find a job to support herself and that she has always resented the fact that she had the potential to establish a real career but the sexual abuse perpetrated on her prevented her from continuing down an academic path. The complainant also said that going to the police and opening up about the sexual assaults was terrifying. She said she had finally reached an age where she could manage her trauma symptoms enough to speak out. She found making the complaints very confronting. She felt immense shame and embarrassment despite knowing that none of it was her fault. The incidents have caused a deep sadness in her and a heavy depression and there have been times when she has felt suicidal. She said “I spend too much time wishing it hadn’t happened. I really do. I also feel a terrible burden that I should have done more when I was young, speak out, because I feel sick with worry that there’s other victims out there. In 2019 I was diagnosed with lung cancer and the prognosis is bad. It’s hard knowing how much I will miss out on while [the accused] gets to keep living his life. Life has been cruel to me.”
As counsel for the State has pointed out, the offences to which the accused had pleaded guilty are ones to which Community Protection (Offender Reporting) Act 2005 applies. Section 11A(1) of the Sentencing Act also applies. There are aggravating circumstances in the current matters in relation to sexual offences. In accordance with s 11A(1)(a), it is noted that the victim in the current matters was under the care, supervision or authority of the offender. Further, under s 11A(1)(da), the victim was a person under age 18 years and the offender was a person of authority in relation to the victim. Further, under s 11A(1)(e) regarding the aggravated sexual assault, the offender subjected the victim to violence. Further, in relation to s 11A(1)(h), the offender, in the course of committing the sexual assault, was doing an act likely to seriously and substantially degrade or humiliate the victim. This was the case here, on both offences.
In sentencing of matters of this sort, apart from having regard to the above matters as being aggravating factors, the Court is bound to take into account principles of general deterrence, vindication of the victim and the important principle of the protection of children. Specific deterrence, because of the passage of time and the age of the accused, does not loom as large as those other factors.
The accused is entitled to the utilitarian benefit of his plea of guilty. According to his counsel, there was always going to be a plea of guilty and there were always full admissions. The accused is 73 years of age, almost 74 years of age. The accused was born in Hobart and previously resided here for 38 years with the complainant’s mother. The complainant’s mother moved out of the marital home in December 2023, after learning that the accused had been interviewed by police in relation to these matters and had made admissions. The accused had an earlier marriage, which only lasted for a few years, and from that marriage he has a daughter, who is aged around 45 years and resides in Queensland. She remains very supportive of him.
The accused has siblings in Tasmania, including a sister who leases a property. That sister is supportive of the accused and has told Community Corrections that she would be prepared for the accused to reside at her premises should the Court decide to make a Home Detention Order in respect of the accused.
The accused had previously worked as a volunteer coach at a Football Club and he had been on the committee there, but had to cease that connection because of losing his permission to work with vulnerable persons, as a result of the charges. He previously ran a successful business in the aluminium industry.
In an interview with a clinical forensic psychologist, the accused acknowledged that he was responsible for the offending in that he made two errors of judgment. He claimed that the occasions, the subject of the two charges, were the only ones where he sexually assaulted his step-daughter. The psychologist assessed the accused at a very low risk of re-offending. He assessed the accused as not requiring any ongoing offence specific treatment. There was no indication that he had ever suffered from any mood disorder, or any other relevant personality disorder, depression or anxiety. The accused claims that he shocked himself at the time of his offending against his step-daughter and was subsequently particularly vigilant concerning the issue of re-offending.
As is not uncommon in matters of this sort, the accused has no prior convictions and has not been in any further trouble with the law. In the opinion of the psychologist, the offending was “most probably situationally motivated and opportunistic (at least to some degree).” That is not put forward as an excuse for the offending. The accused told the psychologist that he is currently residing with his 67 year old sister, but that after he has been dealt with by the Court, he plans to relocate to Queensland and live with his 45 year old daughter from his first marriage, who will support him. The psychologist also said that the accused expressed regret, guilt, embarrassment and remorse concerning his offending. He formed the opinion that the guilt and remorse was genuine.
The psychologist said that 5 and 6 of the Verdins principles are relevant for the accused because of his age and because of the fact that spending time in custody will be an extremely foreign experience for him. However, the psychologist noted that the accused acknowledged that he deserved to receive some form of punishment for his offending. Counsel for the accused submitted, in the first place, that the appropriate sentence for the two offences was a fully suspended term of imprisonment. Counsel said that her client preferred to be back in Queensland now that that is his home and to be living with his daughter, who resides there. Counsel considered that a Home Detention Order would be a less severe penalty than a fully suspended sentence. Counsel said that the accused does not want to run into the complainant as she lives in Tasmania. At that point, the Court informed counsel for the accused that it was considering an actual custodial sentence for the two offences. The Court also indicated that it would be reluctant to do so without exploring the option of home detention. Counsel enquired with the Court whether the option of fully suspended sentence was not in consideration. At that stage, the Court considered it appropriate to keep all options open and consider the matter more fully after receiving a Home Detention report.
Counsel submitted that it was sufficient punishment for the accused to be subject to the suspended sentence, given the break down of his marriage, his relocation to Queensland and his failure to have any further involvement in football coaching and the like. Counsel said that living with his daughter in Queensland, under the threat of a lengthy suspended sentence, and the ability to see his psychiatrist in Queensland, and to be able to support his adult children in Queensland, are all matters, especially since the offending occurred over 30 years ago, that make the offending low-level offending.
I could not disagree more strongly. The offending was anything but low level offending. It was aggravated sexual assault, which involved him penetrating the vagina of his young step-daughter, with his finger, and admitting to deriving some sexual arousal thereby. It also involved him indecently assaulting his step-daughter by rubbing her breasts and nipples with his hands, without her permission. On each occasion, the various elements of s 11A(1) of the Sentencing Act, referred to above, applied. The accused was in a position of trust in relation to his step-daughter. He violated that trust. It is not uncommon for complainants in relation to matters of this type to be made at a much later stage when the complainant is able to psychologically able to handle making the complaint. Whilst the accused deserves credit for making full admissions and for his guilty plea, it is to trivialise what are very serious charges by describing them as involving low-level offending. That submission is rejected. A society that cannot protect its children is a society that is failing.
Effectively, what counsel for the accused is asking is that the accused be permitted to return to Queensland to live with the part of his family who resides there, and to put all the matters that occurred in Hobart in respect of his step-daughter, behind him and suffer no further consequences, despite his admission to vaginal penetration of the complainant. A fully suspended gaol sentence of any duration is most unlikely to be activated in respect of a person of the accused’s age.
In order to consider all options, the Court did order a report from Community Corrections in respect of the accused. As indicated earlier, the office of Community Corrections assessed PCH as suitable for a Home Detention Order. However, considering the entire circumstances relating to the matter, and to the gravity of the offending, including the deleterious effect it has had on the life of the complainant, the Court considers that justice would not be served if an actual custodial sentence was not imposed.
I regard these crimes, in particular the aggravated sexual assault crime, as very serious examples of their type. They involved grave breaches of trust. The existence of that trust, the age of the complainant, as the step-daughter of the accused, and her particular vulnerability to conduct such as that undertaken by the accused, and his taking advantage of that vulnerability, combine to make the matters extremely serious. While I accept that the two acts were relatively isolated and relatively short lived, their consequences have been devastating for the complainant, as is clear from her victim impact statement. General deterrence, denunciation and vindication of the victim are all paramount sentencing considerations.
The appropriate sentence in the circumstances, having regard to the age of the accused, his guilty pleas and his making of full admissions is a term of imprisonment of 18 months. I order that the accused not be eligible for parole until he has served one-half of that sentence. That sentence is a global one, taking into account both offences.
I am also required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that the accused does not pose a risk of committing a reportable offence in the future. His guilty pleas, full admissions and remorse, satisfied me that he does not pose a risk of committing a reportable offence in the future, and I will not make an order under the Community Protection (Offender Reporting) Act 2005.
NB: This sentence determined by Marshall AJ was passed by Cuthbertson J pursuant to s 91(6) of the Sentencing Act 1997 (the Act) in circumstances where Marshall AJ had taken all steps preliminary to the passing of sentence but no sentence had been passed.