STATE OF TASMANIA v PTM 5 AUGUST 2022
COMMENTS ON PASSING SENTENCE JAGO J
PTM, you have pleaded guilty to two counts of persistent sexual abuse of a child and one count of indecent assault. On a separate indictment, you have pleaded guilty to possessing child exploitation material. The first count of persistent sexual abuse of a child was committed against your step-daughter, whom I shall refer to as S; the second count was committed against your step-daughter, whom I shall refer to as T and the third count of indecent assault was committed against your step-daughter, whom I shall refer to as A. You were in a relationship with the children’s mother from mid-2011. Your criminal behaviour started approximately a year later and continued for the next seven years.
The crime of persistent sexual abuse of a child is committed when it is proved that an unlawful sexual act was committed against a child on at least three occasions during the indictment period. In respect to the child S, nine specified occasions are relied upon by the State, but those occasions occurred in the context of ongoing and persistent abuse that occurred over the seven year period. S was aged between 7 and 14 years of age and you were aged 40 to 47, when you were perpetrating the abuse upon her. The abuse consisted of you regularly touching S to her breasts, both over and under her clothing; kissing her to the mouth; touching the outside of her vagina, both over and under her clothing; making her touch your penis and attempting to make her suck your penis. The particular occasions relied upon by the State are as follows:
Occasion 1 – when S was aged between eight and nine, you removed her pants, spread her legs, stood in between her legs and kissed and licked her on the outside of her vagina. You told her to be quiet and not tell anyone about it, describing it as “our secret”.
Occasion 2 – when S was aged between eight and ten and playing in her bedroom, you sat down next to her, removed your penis from your pants and asked her to rub it. When she refused, you grabbed her hand and wrapped it around your penis.
Occasion 3 – when S was aged between nine and 12, you put your arm around her and then placed your hand underneath her clothing and rubbed the outside of her vagina with two of your fingers.
Occasion 4 – when S was aged between 11 and 12 years, you kissed her to the mouth for a period of time and touched her all over her body on the outside of her clothing.
Occasion 5 – when S was aged between 13 and 14 years, you placed her on your lap and touched her to her vagina over her clothing.
Occasion 6 – when S was aged 14, you touched her to her breasts over her clothing and told her that you wanted her to suck your penis.
Occasion 7 – when S was 14, you came up behind her and groped her to the breasts with your hands over her clothing.
Occasion 8 – you approached S in the bathroom, took her hand and placed it inside your pants and onto your penis.
Occasion 9 – you squeezed and rubbed S’s thigh and vagina over her clothing, whilst you were driving.
Your offending, as it relates to T, also occurred over approximately a seven year period and was largely occurring at the same time as your offending against S. T was aged between eight and 15 years and you were aged between 40 and 47 years when you perpetrated your abuse upon her. Again, the occasions identified by the State in respect to T were not isolated occasions, but were committed in the context of an unspecified number of other sexual acts of the same character being committed upon her by you. Throughout the offending period, you would also describe to T in explicit details, sexual acts that you wanted to perform upon her. On at least one occasion, you also filmed T whilst she was showering. The specified occasions relied upon by the State in respect to T are as follows:
Occasion 1 – when T was aged between eight and nine, you asked her to touch your penis. When she refused, you grabbed her wrist and placed her hand against your penis. When she tried to resist, you kept forcing her hand back to your penis, trying to get her to take hold of it.
Occasion 2 – at a time when you and T were in a motor vehicle together, you placed your hand onto her upper thigh and began to caress it. You told her you wanted her to suck your penis. You then touched T’s vagina and rubbed it for a period of time over the top of her tights.
Occasion 3 – you told T she had to hug you. When she indicated a reluctance to do so, you hugged her anyway and touched her breast over her clothing.
The indecent assault you perpetrated against A occurred on the 4th December 2019 when she was eight years of age and you were 47. You hugged her and then moved your hand down underneath her underpants and rubbed the outside of her vagina for a period of time. The act ceased when another family member approached the lounge room, where the incident was occurring. You told A she was not to tell anyone what had occurred.
In respect to the charge of possessing child exploitation material, the Police located 28 still images and three video clips on a hard drive of a computer that belonged to you and was located in the family home. The hard drive was not password protected. The hard drive was forensically examined and child exploitation material was identified upon it. The child exploitation material was categorised in accordance with the Anvil scale as follows:
- 16 images were category 1; that is, they did not depict sexual activity but the images were sexually suggestive. Four of these images involved children under the age of 12 and the remaining images depicted children between the ages of 12 and 16 years.
- Two video clips were categorised as category 2; that is, they involved non-penetrative sexual acts between children. The children were aged approximately ten to 16 years and included video clips of a child engaging in solo masturbation and children engaging in mutual non-penetrative touching and masturbation.
- One video clip was located that was category 3. It depicted non-penetrative sexual activity (masturbation and touching) between two female children aged approximately eight to 13 years and an adult male.
- As to Category 4, three images were located that depicted penetrative sexual activity between children and adults. In two of the images, the female children were aged between 10 and 16 years. The images depicted vaginal penetration by an adult male and vaginal penetration between children. The third image showed an adult male using his penis to penetrate the vagina of an approximately three year old female child.
- Category 5, one image was located which depicted a seven to eight year old female child with her hands and legs bound with rope. She was tied to a bed with her vagina exposed and had a choker around her neck.
- Category 6, five images were located that depicted cartoons of children engaged in penetrative sexual activity.
In sentencing the defendant in respect of possessing child exploitation material, I have regard to the principles articulated by Porter J (as he then was) in Director of Public Prosecutions v Latham [2009] TASSC 101. In particular, I note the images possessed by the defendant were predominately category 1 images. Some of the images involved very young children, but many images were of older teenagers. I have no information to suggest there was any fear or distress apparent in any of the images and there is no evidence of physical harm being perpetrated upon the children. That certainly does not equate with a conclusion that no harm was occasioned to the children appearing in the images. Despite the absence of obvious physical harm or fear or distress in the images, it is notoriously understood that children involved in child exploitation matters often experience irreparable damage and significant psychological and psychiatric harm. I note the number of images found was small, and there is no evidence that the defendant’s possession was for the purpose of further distribution. As to the defendant’s level of personal interest in the material, I note that in a record of interview he participated in, the defendant commented that he had never been sexually attracted to children. Given his pleas of guilty to most serious sexual offending against children, I reject this assertion. I sentence on the basis the defendant possessed a high level of interest in the child exploitation material found. I also note the hard drive was not password protected and was subject to risk of accidental discovery.
The evils of accessing and possessing child exploitation material have been stated many times by courts. The production of such material involves the exploitation and abuse of children somewhere in the world. Possession and viewing exacerbates the abuse and exploitation of such children. Clearly general deterrence and denunciation are paramount sentencing considerations. The fact the images are predominantly category 1 is of course relevant, but it does not in my view undermine the importance of general deterrence and denunciation as sentencing considerations. Possession of such images must be condemned to guard against the risk that such imagery is somehow normalised or regarded as inoffensive.
As to the defendant’s personal circumstances he is now aged 50. He has three adult children and shares a good relationship with them. He has a strong work history, having been predominately employed in the hospitality sector. The defendant last worked in 2019 when health issues prevented him from continuing. He suffers from depression and Type 1 diabetes. I am told the defendant’s diabetes is problematic and often difficult to manage. In 2020, the defendant was involved in a motor cycle accident and sustained a fracture to part of his vertebrae. It resulted in considerable pain and even with appropriate pain relief, he continues to experience pain on a daily basis. I accept this will make his incarceration more difficult. The defendant had, what can only be described as a horrific childhood. His father abused him for much of his childhood. He was eventually sent to gaol for the abuse he perpetrated upon the defendant. Sadly, the abuse has defined the defendant’s life and he has experienced a number of difficulties as a consequence. I note the defendant maintains a good relationship with his mother, enjoys her ongoing support and will be welcome to live with her upon his ultimate release from custody. The defendant has a relevant prior matter. In 2011, he was convicted of two counts of assault with indecent intent. This involved the defendant, without consent, hugging and touching the bottom of an adult female and then placing her upon his lap and touching and rubbing her breast and bottom. Whilst, obviously, the complainant involved in that matter was an adult female, it is an example of the defendant imposing himself in a non-consensual and sexual manner upon another person. The defendant was sentenced for that matter in March 2011. The following year he commenced the offending for which he is now to be sentenced. The defendant does not have any relevant prior convictions involving child exploitation material.
Returning to the child sex offences, the seriousness of such offending and the factors relevant to sentence have been explained many times by Courts in this State and elsewhere. It is of course possible to think of factors which would have made the defendant’s offending even more serious. His acts did not involve penetration or overtly degrading conduct, but they did involve the abuse of three complainants, predominantly within their own home where they were entitled to feel safe and protected, and, in respect to S and T, the abuse was persistent and for an extended period of time. Each of the complainants were the defendant’s step-daughters. His conduct involved, therefore, an appalling breach of trust. The defendant bore a responsibility to nurture, care and protect his step-daughters but instead he took advantage of his position of trust in order to abuse each of them. The abuse occurred at a stage of their lives, which was of particular importance for both their psychological and emotional development. The sustained nature of the defendant’s conduct invariably meant, in my view, that their home which should have been safe and secure was instead permeated by anxiety, distress and fear about what might happen to them. There is no question that sexual acts of this nature involve very serious moral and criminal wrongdoing. I have regard to the aggravating circumstances I am required to take into account by virtue of the Sentencing Act 1997, s11A. I note the abuse was all committed when the complainants were under the defendant’s care and supervision and he was in the role of a parent. As I’ve noted, it is an exceptionally serious breach of trust. The complainants were all young when the abuse was perpetrated. S and T were both under the age of 13 for the largest part of the offending period. A was under the age of 13 when she was indecently assaulted. It is also aggravating that on occasions, the defendant physically manipulated or restrained the complainants when they were demonstrating resistance, for example, when they refused to touch his penis. The physical control he exerted must have added to their feelings of powerlessness. The defendant also described to S and T, in explicit detail, sexual acts that he wished to engage in with them. To hear such things could only have increased their fear and uncertainty.
It is well understood that conduct of this nature has profound and deleterious physical and psychological effects upon victims for many years, if not their whole lives. The true effect of the conduct may not emerge for many years and is frequently, simply immeasurable. I have carefully considered the Victim Impact statement provided by T. S and A declined to provide such statements. That does not mean, of course, that there has been no impact upon them. The impact described by T is entirely consistent with what might be expected from abuse of this nature. She is now anxious and scared. Her schooling has been affected. Her relationships with family and friends have been affected. She suffers nightmares and flashbacks and is frequently panicked. There is no question the defendant’s conduct has had a profound effect upon his victims.
In sentencing crimes of this nature, there is a strong need for general deterrence and denunciation. Crimes of this nature cause terrible harm and are often difficult to detect. The decision to disclose such abuse within a family context, in particular, must be an incredibly difficult and stressful experience.
PTM, 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 community denunciation, means the only possible sentence is a significant term of imprisonment. I intend to impose a global sentence in respect to the two counts of persistent sexual abuse and the one count of indecent assault. 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 you have done to each of them.
Having regard to s 11(3) of the Sentencing Act, it will also be necessary for me to identify the sentence which I would have imposed for each offence had separate sentences been imposed. In my view, this section refers to a sentence assessed for each offence without regard to the principles of totality. The totality principle must, of course, affect the length of the combined sentence irrespective of whether they are imposed separately or globally.
I take into account your pleas of guilty. I note, however, that the pleas were entered at a relatively late stage and after the complainants had been required to participate in at least some of the court processes, including assessment in respect to an intermediary report. Nevertheless, you are entitled to credit for the pleas of guilty because, importantly, it has saved each complainant the distress and humiliation associated with giving evidence in a criminal trial and re-living the trauma of the abuse. The State has also been saved the cost and inconvenience of what most likely would have been two criminal trials. But for your pleas of guilty, the sentence I intend to impose would have been considerably longer.
PTM you are convicted of all matters to which you have entered pleas of guilty. In respect to the two counts of persistent sexual abuse and one count of indecent assault I impose one sentence. You are sentenced to imprisonment for a period of six years, commencing 11 July 2022. I order that you not be eligible for parole until you have served three years and six months of that period of imprisonment, which given the serious nature of the crimes, is the minimum period I consider you should serve in prison.
In accordance with s 11(3) of the Sentencing Act, I identify the sentence which I would have imposed for each crime had I sentenced them separately as follows:
- Count 1 – a term of imprisonment of four years.
- Count 2 – a term of imprisonment of three years.
- Count 3 – a term of imprisonment of eight months.
In respect to the count of possessing child exploitation material, you are sentenced to imprisonment for a period of three months. This period of imprisonment will operate concurrently with the period of imprisonment just imposed. I make a forfeiture order in respect to the 2 hard drives.
I am required to make an order under the Community Protection Offender Reporting Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not so satisfied and accordingly must make an order. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of ten years, which will commence on the date of your release from Prison.