PJS

 STATE OF TASMANIA v PJS                                         31 AUGUST 2021

COMMENTS ON PASSING SENTENCE                        GEASON J

Mr S you have pleaded guilty to a number of historical sexual offences. They are 2 counts of persistent sexual abuse of a child, 2 counts of indecent assault and a count of rape.

Setting out the facts of your offending which I am about to do, I expressly emphasise that you are being sentenced only on the indictment even though the narrative taken from the State’s papers refers to other uncharged acts.

You have no children of your own. You have multiple siblings. During her life, one of your sisters had a total of 11 children.  Four of these children are victims of your offending.

Your brother has three children, one of whom, a boy, is another victim.

Throughout the period of the offending, you resided at several different addresses, with your mother until she died, and then with various other family members.

At each of these addresses, you had your own bedroom.

The complainant in relation to count 1 is now 54 years old.

The period of your offending, as it relates to this complainant, took place between January 1972 and January 1976. The complainant was aged between 5 and 9 years old during this period. You were aged between 20 and 24 years old.

During this period, you resided with your parents and the complainant, along with her parents and her siblings also resided at the same address.

The property consisted of the main house and a separate bungalow that had been constructed in the backyard of the property. The bungalow consisted of one room with several beds.

During the offending period, your parents and you had bedrooms within the main house, while the complainant, her parents and her siblings slept in the bungalow.

You were often trusted by the complainant’s parents to babysit the complainant and her siblings. This occurred on a frequent basis.

On an occasion during the offending period, the exact date is not known, you and the complainant were home alone. You were in the kitchen when you told the complainant to take off her clothes.  When she was naked, you lifted her up and sat her on the kitchen table. You then lowered your own pants, exposing your penis. You stood in front of the complainant and inserted your finger into her vagina. While you did this, you masturbated. You continued until you ejaculated. You then removed your finger from the complainant’s vagina.  She was crying whilst this occurred and at times you told her to stop. When you had finished, you told the complainant not to tell anyone, saying that if she did, she would be in big trouble.

On an occasion after this but during the offending period, the exact date not known, the complainant and her family were having a birthday celebration. You were present during the celebration and later in the night offered to put the complainant to bed. You took her into the bungalow and when you were alone inside, you locked the door. You removed her clothes and lay her on one of the beds. You then pulled down your pants, exposing your penis. You inserted your finger into her vagina. At the same time, you masturbated. You continued until  you ejaculated. Again she was crying while this occurred. When you finished, once again you told her she was not allowed to say anything to anyone.

On an occasion after this but during the offending period, the exact date not known, the complainant was having a bath in the main house. You went into the bathroom and told her that she had to eat a worming chocolate. You gave her the chocolate and then proceeded to wash her hair and body. While you did this, you moved your hands down to her vagina and inserted your finger into her vagina.  You continued to do this for a short period of time before removing your hand and leaving the bathroom.

On multiple occasions throughout the offending period, you took the complainant with you for a drive in your car. You made her sit in the middle of the front bench seat, next to you. As you drove, you would use your hand to touch and rub the complainant’s breasts and her upper leg; you would make sexualised comments to her, including telling her that you wanted to have sex with her. You would then tell her that she was not allowed to say anything about it to anyone.

When she was a child, the complainant was particularly close to her grandfather.  As a means of ensuring her silence, you told her that if she told anyone what was occurring, her grandfather would find out and would hate her. The complainant believed you when you said this.

The complainant did not tell anyone about the abuse in any kind of substantive way until she was around 30 years old, in the late 1990s.  At around this time she disclosed the matter to Tasmania Police, her partner, members of her family, her general practitioner and a counsellor.

She reported the matter to Police again in years to come, making formal statements as to the allegations in 2002 and 2016.

At all times the sexual conduct which occurred, was without her consent.

The complainant in relation to count 2, is 50 years old.

Your offending, as it relates to this complainant, took place on an occasion between September 1975 and September 1981. She was aged between 5 and 10 years old during this period. You were aged between 23 and 29 years old during this period.

You had moved to another address with your mother, and at some point after that, the complainant had also moved to that address with her mother and her siblings.

Around this time, you worked at a cigarette shop. On a day during the particularised offending period, you were babysitting her. You had to work at the cigarette shop so you took her to the shop with you. After you finished work for the day, you shut the shop. You were alone inside the shop. You led her towards the back of the building. You told her to take her pants off and lie down on the floor. Once she was on the floor, you lay on top of her. She tried to push you off but she was unable to. You then used your hand to touch the outside of the complainant’s vagina. In touching her, you attempted to penetrate her vagina but it is not asserted by the State that penetration was in fact achieved. This hurt the complainant and she was crying while it occurred. After doing this for a while, you got off her, told her not to tell anyone and said that no one would believe her if she did.

At times while you both lived at the same address, before and after the act at the cigarette shop, it is alleged that, on multiple occasions, you touched the complainant to the vagina and forced her to touch your penis. This generally occurred in the bedroom.

The complainant did not disclose your conduct to anyone in any substantive way until she was an adult. She first told some family members what had happened, all being in general terms when she was in her late 20s. The first time she disclosed the offending in detail however was in 2016 when she formally reported the matter to Tasmania Police.

At all times the sexual abuse that occurred was done without her consent.

The complainant in relation to count 4, is 43 years old.

Your offending, as it relates to this complainant, took place between June 1988 and June 1990. The complainant was between 10 and 11 years old during this period. You were between 36 and 38 years old during this period.

At the time of this offending, you lived with your mother. The complainant lived with his parents and siblings elsewhere.

The complainant’s parents also owned a holiday house at another location. He and his family would often spend weekends and holidays there and members of the extended family would visit at times.

On an occasion during this period, you took the complainant and the complainant’s second cousin, a young child. When you all got to the house, you were the only ones there. After dinner the complainant was in the dining room, lying on his stomach on the floor near the fireplace, playing a computer game. You were sitting on a lounge chair, directly behind the complainant. The other child was asleep. While the complainant played his game, you put your bare foot in between his legs and used it to rub his testicles. He asked you to stop but you continued.  The complainant then moved forward out of his reach. When he did this, you moved down to the floor and you lay beside the him. You rolled him on to his side so that he was facing you. You then pulled his pants and underwear down, exposing his penis. You touched his penis, masturbating it. Whilst you were doing this you said to him that you wanted to show him “a fresh load of sperm”. He asked you to stop but you kept going. In an effort to make you stop he said he needed to go to the toilet and stood up and walked away from you, but you followed him into the toilet, continuing to rub his penis with your hand. After a time, you stopped and went back to the lounge room.

The complainant did not tell anyone about what happened at the time as he felt ashamed and embarrassed about it.

In the late 1990s, when he was around 18 years old, he told his parents and Tasmania Police about your behaviour. All of this conduct was done without the consent of the complainant.

The complainant in relation to count 5, is 34 years old.

Your offending, as it relates to this complainant, took place between September 1993 and September 1995. During this period, the complainant was aged between 7 and 8 years old. You were aged between 41 and 43 years.

At the time of the offending, you lived with the complainant’s nephew. He was aged between 9 and 11 years old during this period. The complainant lived elsewhere with her parents and siblings.

On a day during the offending period, she went with her mother to your house for the day. At the end of the day, her nephew asked her if she wanted to stay the night for a sleepover. She had not stayed the night at your house before. As a child she rarely wanted to be separated from her mother overnight; it was a big decision for her to stay, but she decided to do so. After dinner, you told her that she would be sleeping in your bed along with her nephew. The three of you got into bed. She wanted to sleep on the outside of the bed but you told her to sleep in the middle, in between you and the other child. When she went to bed, she was wearing underpants and pyjamas. As she slept, you removed her pyjama pants and underwear. You then removed your pants, exposing your penis; you got on top of her rubbing your erect penis against her genitalia, attempting to place it over her vagina. This woke her up. She realised that she was naked from the waist down and that you were on top of her, rubbing your penis against the outside of her vagina. You then inserted the end of your penis into her vagina.  Causing her pain. While you were doing this, you kept saying to her “this is alright” and “it’s okay”. The other child was lying in the bed on his side with his back to you. After a while, you removed your penis from her vagina and you allowed her to get up and go to the toilet. You followed her into the bathroom and watched while the she sat on the toilet. You went back into the bedroom to get her pyjamas. Whilst she was on the toilet, she noticed that she was bleeding from her vagina. You returned to the bathroom with her pyjamas and underwear. She got dressed and went back to bed. After this, she refused to stay at your house again.

She told her sister what had occurred the next day. She did not however disclose the offending to anyone in any significant detail until she was an adult, when she told her partner and then Tasmania Police in 2016. Again, his conduct was done without the consent of the complainant.

The complainant in relation to count 6, is 36 years old.

The period of your charged offending, as it relates to this complainant, took place between April 1994 and April 1997. The complainant was aged between 9 and 12 years old during this period. You was aged between 42 and 45 years.

During the period of the offending, she resided with her family, you resided elsewhere. Also living with you at the time was the complainant’s nephew. He was between 9 and 12 years old during the relevant period. Due to the similarities in their age, the complainant and her nephew were close growing up, being more like brother and sister than aunt and nephew. As a result, she would often go to your house, including for overnight visits. While staying at your house, she would usually sleep in the lounge room of the residence. On an occasion at the beginning of the offending period, she was asleep on the couch in the lounge room. You entered the lounge room, approached her and started to touch her including on the outside of her vagina. This woke her. You continued to touch her for a period of time. When you stopped, you told her to not tell anyone and said that if she did, they would think it was her fault. After that she went home the next day, and for a period of time stayed away from you. She did not tell anyone what had occurred. After some time when to her, everything seemed normal again to the she started to go back to your house to see her nephew.

On an occasion during the offending period she went to a basketball game with her nephew and then returned to your house to spend the night. They were sleeping in the lounge room when you entered, when you approached her and again, put your hand inside her pants and touched her on the vagina. This woke her. While you was doing this, the other child rolled over and asked what was going on. You removed your hand from her vagina and left the room.

On an occasion after this, the complainant spent the night at your house. While you were alone, you demanded that she go into your bedroom, get into your bed and take off her boxer shorts. You then undressed yourself and took off her remaining clothes. You got into the bed next to her and touched her to the vagina with your hands. You then got on top of her and had sexual intercourse with her by inserting your penis into her vagina. This lasted for several minutes. After you finished, you told the complainant that if she told anyone they would blame her and think that it was her fault. You then told her that she could leave your room and the complainant went and showered.  She did not tell anyone about this at the time as she was too scared.

On an occasion after this but during the offending period, the exact date not known, you drove her to a local area. When you arrived, you retrieved a blanket from the boot of your car and made her walk with you into the bush area nearby. You laid the blanket on the ground and made the complainant lie down on it. You then had sexual intercourse with her by inserting your penis into her vagina.

On multiple occasions throughout the offending period, the exact number of times not known, you committed other sexual acts upon her. These included touching and penetrating her vagina with your hands and fingers and having sexual intercourse with her by penetrating her vagina with your penis. These acts occurred at your house, at her house when she was there alone with you and in your vehicle at various locations around the greater Hobart area. This conduct occurred on a regular basis and was ongoing during the entire period of the offending.

The complainant first told her nephew about your offending. He had also witnessed some instances of the offending over the years. She later reported the matter to other family members and to Tasmania Police on three occasions, namely in the late 1990s, the early 2000s and again in 2017. At all times that the sexual abuse that occurred was done without her consent.

In May 1997, Tasmania Police commenced an investigation into an allegation made against you by one of the complainants. During the course of that investigation, 2 more complainants reported the matter to Tasmania Police. The currently available Police records from that 1997 investigation indicate that on 26 August 1997, you were interviewed in relation to the allegations. Reports indicate that you denied them.

At the conclusion of the 1997 investigation, no charges were laid against you in relation to any of the allegations made by the three complainants.

In May 2002, two of the complainants again reported the matter to Tasmania Police. They made formal statements and once again the matter was investigated. During the course of this investigation, you were interviewed by Tasmania Police on 18 July 2002. During that interview, under caution, you stated in relation to the first complainant that you admitted to bathing her when she was a young child but you denied ever putting your finger inside her vagina or sexually abusing her in any way.

In relation to the other complainant you denied ever exposing your penis to her.  You said that there was no reason why she ever would have seen you naked. You denied ever touching her on the vagina and you denied ever having sexual intercourse with her. You also denied ever sexually abusing her in any way.

At the conclusion of the 2002 investigation, no charges were laid against you.

In 2016, one of the complainants again contacted Tasmania Police and formally reported the matter. Again Police commenced an investigation and during the course of that investigation, the remaining complainants all reported the offending to Police.

As part of this investigation, you were interviewed on 21 December 2016. During that interview, under caution, you denied all allegations. You stated that all of the complainants had gotten together and made up the allegations. You said they did this originally because some of them owed you money.

Finally on 6 June 2018, you were charged on complaint with charges relating to four of the complainants. On 26 July 2018, you pleaded not guilty to those charges and were committed to this Court for trial.

On 29 August 2019, an indictment was filed, replicating the charges on the complaint in relation to the four female complainants and adding the charge that relates to the male complainant.

On 19 May 2021, you formally entered pleas of not guilty in relation to all charges concerning the complaints on the amended indictment. Pre-trial legal argument was conducted and the matter was listed for trial to commence on 9 June 2021.  This trial date was then delayed to June 2021 due to COVID-19 restrictions.

On 10 June 2021, you formally confirmed with the State that you would plead guilty to the charges on the basis that I have outlined today.

The Court acknowledges that your plea of guilty, though it has come late, has a utilitarian benefit, saving not just court time, but much more importantly the need for your victims to relive the offending, something which would have added considerably to the suffering they continue to endure as a result of what you did to them.

But as I say, as a late plea, and a plea entered only after you have attempted or had attempted to have the proceedings stayed, and certain evidence excluded. You are not entitled to the discount I would ordinarily afford for a plea of guilty. I will discount the penalty I would otherwise have imposed by just 5% for your plea.

Your behaviour over many years was predatory, selfish, and evil. You are a pathetic example of a man who procures gratification through the vulnerable, the innocent, those unable to resist your will. By punishing you I can mark the community’s abhorrence for behaviour such as yours perpetrated for no reason other than your own sexual gratification.

I acknowledge that each victim has their own story to tell about that suffering, and I am grateful for their statements made to the Court.

All your victims were aged between 5 and 12 years, an aggravating matter under s11A(1)(c) of the Sentencing Act.

Your offending occurred over a period possibly as long 25 years. Sentencing for a series of crimes has the effect of compressing each episode to the point where it is easy to forget that the behaviour you forced upon your victims endured, each time, for what must have felt a very long time; each action inflicted by you for so long as you wanted it to continue, and for so long as it took you to be gratified. You were in complete control. Each act condemned your innocent victim to a sense of shame, worthlessness, and a life of misery; a sense that life could never be as it was meant to be.

The sentence I impose today will not extinguish that suffering, it will not make good the harm you have caused. It cannot possibly do that. It will, I hope vindicate your victims, and give them some measure of justice. They have bravely endured these experiences, the delays in bringing you to justice, and the apparently inadequate investigations in the past. On their behalf, and on behalf of the community the Court imposes a sentence intended to speak for them, tempered only by those principles of sentencing I am required to observe, including totality and recognition of your age and your health.

These are to repeat, extremely serious charges, involving a grave breach of trust, in circumstances of a significant power imbalance between you and your victims, aggravated by attempts to conceal your conduct.

I am required to have regard to your age at the time of the offending. You are to be punished as that person. Commencing when you were 20 and continuing until you were 45 years old, taking the range from the crown facts it is obvious at all times you were old enough to know that your behaviour was very wrong. You were on the cusp of your youth when it began but not a youthful offender for most of your offending.

That you continued your offending for so long shows a callous pattern of behaviour, repeated without any reflection by you, upon your actions and the harm you were causing.

I have had regard to all the materials that were placed before me, and I weigh them in the sentencing exercise along with the matters put in Mr O’Halloran’s very helpful plea. I accept that you state that you are remorseful. I have tempered the sentence to take account of the matters put in mitigation but I have to say that adjustment will be less obvious in a case such as this because it merely makes a very very long sentence, a very long sentence.

I accept Dr O’Donnell’s opinion that Verdins limbs 2 and 5 are engaged here: You have suffered a major stroke and prison will be difficult for you due to your health. The considerations relating to the 2nd limb of Verdins are to some extent matters for prison authorities, they relate to the conditions of your incarceration, though as I say, I have regard to them too in relation to the duration of the sentence even though the 5th limb of Verdins is more specifically directed to that consideration.

No part of Verdins is engaged in relation to the offending itself.

There are no relevant prior matters or any subsequent offending.

I intend to impose a single sentence on the indictment. That is the most effective way of dealing with you, and to achieve an outcome that accords with principles of totality.

Mr S, you are convicted. On the indictment I sentence you to 12 years’ imprisonment.

You are not to be eligible for parole until you have served 8 years of that sentence.

In relation to the Community Protection (Offender Reporting) Act 2005, counts 1, 2, 4 and 6 fall within Class 2 offences; Count 5 is a class 3 offence.

I intend to make the maximum order: You will be placed on the register of sex offenders for life.