STATE OF TASMANIA v RUB 12 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has been found guilty by a jury of two counts of maintaining a sexual relationship with a young person, and two counts of rape. These offences were committed some 20 or so years ago and involve three women who were then young girls. Their anonymity is required by law and I will refer to them by single letters. The facts as I find them to be, and in line with the jury’s unanimous verdicts are as follows. By way of background the evidence establishes that during the relevant times, the defendant had a sexual attraction to and interest in pre-teen and young teenage girls. Generally he was prone to touching, and comments and innuendo of a sexual nature. On at least one occasion he showed interest in whether sexual activity was taking place between one girl who was in his home and a boy she was with. The first count of maintaining a sexual relationship involves V. The period of offending is from January 1991 to mid-July 1992 when V turned 17. V met the defendant when she was 13 or 14 years old after her family moved to a house across the road from where he lived. The families became friendly. The defendant paid V a lot of attention. His then wife gave evidence that he treated V as though she were his wife. The defendant took V on outings on their own and bought her clothes and gifts. He gave her a necklace for her to wear suggesting she wear it to bed, as that would make it special. Physical contact by hugging started when V was 15. Vaginal sexual intercourse first happened in January 1991. V was still then 15 and about to start year 10. The incident took place after a trip to Hastings Caves when, on their way home, the defendant diverted to a flat. Protected sexual intercourse took place at the flat. During the act, the defendant told her that he loved her. Shortly after the act V heard him apparently sharing a joke with someone then present in the flat about what the defendant had been doing. Further identified occasions are as follows. There were two instances of rubbing or touching the complainant’s vagina while she was at the defendant’s home and in his spa. On one occasion her father was present, while on another occasion the defendant’s wife was present. There was a further act of vaginal sexual intercourse at V’s home and in her parents’ bed at a time when they were away. V’s evidence, which I accept, was that sexual intercourse took place on numerous occasions over the relevant period and there were many instances of being touched, most often it seems while the two were in the spa. V gave evidence about a further occasion of vaginal sexual intercourse before which the defendant inserted a carrot into her vagina. However, V frankly said that she could not now recall whether that was before or after she had turned 17. On that basis I cannot be satisfied beyond reasonable doubt that it should be included for consideration. I am satisfied of the other occasions and I am satisfied that those occasions were part of a regular course of similar conduct. V’s evidence, again which I accept, was that during the relevant period the defendant exercised control over her. She lived in the defendant’s home for a few months. He imposed rules forbidding her from going out alone and from seeing friends. Towards the end when she was at college, the defendant would drive in the vicinity during the lunch break. He told her that if he ever saw her with a boy he would bash both her and the boy. He insisted she ring him on the school pay phone at lunch times. For the sake of completeness, I add that the sexual relationship continued for about six months after V turned 17. I also add that the defendant admitted a sexual relationship with V but said it did not start until she was 17 and that it was of much less intensity and duration. The defence as to the remaining counts was one of complete denial.
The second count of maintaining a sexual relationship involves N. The period of the offending was from January 1997 to November 2001. N’s mother formed a relationship with the defendant and moved in to live with him, taking N with her. N’s mother and the defendant married in July 1998 at which time N was 11 years old, nearly 12. I am satisfied of the following. A few months later, the defendant’s attitude to N’s mother changed. He was angry much of the time and they were constantly fighting. N was aware of violence to her mother. More particularly, the defendant was violent to N. She described being punched to the side of the head, being thrown into walls with her head being slammed. This behaviour was relatively constant. Sexual offending by the defendant started when N was still in grade 6. The precursor was physical contact such as touching or rubbing as they passed each other in the house. The defendant would take her out of the house with him, and when driving would insist she put her hand on his leg. The first occasion N remembers is being in bed and waking up to find the defendant’s hand down the front of her pyjama bottoms with his fingers on her vagina. A feature of the relationship was that the defendant would take N on interstate trips; very often just the two of them. Further identified occasions of sexual offending include the insertion and removal of a tampon in and from N’s vagina; vaginal sexual intercourse in Canberra when N was about 13 before which he inserted ice cubes and a lollypop into her vagina; vaginal sexual intercourse using a mint flavoured condom during a trip to Brisbane and staying at a friend of the defendant; vaginal sexual intercourse at a family shack, two occasions of vaginal sexual intercourse at a friend’s shack in the same area, and lastly, vaginal sexual intercourse in the defendant’s bedroom in November 2001 after N had made a complaint of rape to the police but then retracted it. The act of sexual intercourse after the retraction of the complaint was the last occasion. N and her mother had moved out of the defendant’s home by that time but some contact had continued. The effect of N’s evidence was that protected vaginal sexual intercourse was very frequent throughout the period. I accept that, as I do that the context of the offending included the defendant being violent to N at other times. There is no suggestion that the sexual offending was accompanied by violence but N said she ended up in the situation with the only way to stop the defendant from being angry was to what he wanted; that is have sex with him. She said that she got to the stage where there were times she would instigate sex to stop him from being so angry; she said she was just constantly in fear. The evidence of N and her mother establishes that the defendant would take steps to thwart attempts to complain to authorities. A number of times N was taken from a school and relocated if someone noticed the result of physical abuse or concerns were raised about abuse. The defendant was otherwise controlling. He directed N what to wear and as to what to eat, suggesting she was fat.
The two charges of rape concern K. She was a friend of N, and about the same age; 12 at the time of the offending. She gave evidence of her observations in relation to the defendant’s conduct towards N one occasion, but was the victim herself of two sexual assaults. At the relevant time, K was living with her grandparents. I am satisfied that the first count of rape happened on a day on which the defendant, N and K had been to the defendant’s boat. While getting onto the boat, the defendant put both hands on her bottom. K stayed at the defendant’s home that night. During the night she got up to go to the toilet. When she was returning, she encountered the defendant in the hallway. He put his hand over her mouth and dragged her into his mother’s room. The mother was then away on holiday. He put K on the bed, pulled her pyjama shorts down, fondled her vagina and then inserted his penis. K remembered that he was using a condom. At the time of penetration his hand was still over her mouth, but she was trying to resist. Afterwards he told her not to tell anyone because no one would believe her. This was a proposition she accepted. The second count of rape involves oral penetration. Some time after the first incident, the defendant was taking her home one afternoon. He mentioned what had happened previously and reminded her not to tell anyone as no one would believe her. He parked the car near a primary school. He then pulled down his pants revealing his erect penis. He grabbed K by the back of the head and pushed her head towards his penis causing contact with her mouth. He penetrated her and she described choking and gagging. She said it did not last for too long “because he pretty much gave up”. When the defendant dropped her off he told her to compose herself before she went inside. K did not visit N at her home after that occasion.
I have victim impact statements of each of the three complainants. V speaks of being groomed and used by the defendant for his perverted sexual gratification without a care for her. She says he stole her innocence and her virginity. She felt powerless to stop it happening having been groomed, and under the defendant’s absolute control. She felt alienated from her friends and family with the defendant not allowing her to socialise much. She speaks presently of still having intimacy issues with continued self-loathing and regrets. She suffers flashbacks and panic attacks as a consequence. She has difficulty forming relationships and suffers extreme loneliness. She does have children and feels she is over protective of them and scared when they stay away. N says she finds it difficult to put into words the incredible impact the offending has had on her life. Her education was badly disrupted due to the fact she had to change schools so often. She took to smoking and drinking in her early teens in order to avoid the pain. Alcohol has been an ongoing problem since. The defendant conditioned her to be suspicious of doctors and health professionals and this attitude has pervaded her life so that she finds it difficult dealing with health issues. She has been unsuccessfully treated for anxiety and has experienced panic attacks. As in the case of V, N was particularly anxious about giving evidence. In N’s case, that proved to have some substance. Very shortly before the trial was due to begin with a jury, N was stabbed in the face by a woman associated with the defendant. Of course, he is not to be punished or treated differently in the sentencing process in any way because of that. But it means that giving evidence was especially traumatic in her case. K says that the defendant has taken much away from her. She still cannot manage to maintain a reasonable relationship with a man due to her anxiety levels. She feels cheated that he took her virginity. He also took her relationship with N away from her; at that time N was the only close friend she had. She was too scared to tell anyone what had happened. She has not slept well ever since and has regularly suffered from nightmares and flashbacks. Ultimately she saw a psychiatrist and was diagnosed as suffering from anxiety and depression. She used drugs to take the pain away and became entangled in the justice system as a result. Fortunately, she is now properly medicated for her mental health issues and has been free of illicit drugs for over five years.
The defendant is now 59 years old. He has no recorded history of offending of any significance. There is a drink driving matter in late 1991. More recently, in July 2003, he was convicted of some alcohol-related street offences of a minor nature. He is presently married with two children aged 14 and 13. He has one adult son from his first marriage. Both parents are deceased. He suffers from Crohn’s disease which requires medication. He experiences chronic pain for which he regularly takes analgesics. As to his background, his father was in the Army and as a result the defendant frequently moved. This was disruptive for his schooling and generally unsettling. He completed year 9 and worked in retail for a while before joining the Army. Unfortunately, he was involved in a car accident when he was 19, injured his leg and was medically discharged. He came to Hobart in the mid-1980s with his first wife. A few years later he undertook a course in disability support. He then became the carer, in his home, for a young disabled woman. That care role extended to a male friend of hers who moved in. That was the current situation at the time of all of the offending. His counsel submitted that I should take into account the unusual hardship that his absence will cause to his wife. She will have the care of the two teenage children and will have to carry on with the care duties on her own. The woman is wheelchair bound and the man suffers from mental health issues. In my view, that issue of hardship does carry some weight.
The very significant level of gravity of this offending goes without saying. Sexual abuse of children is a matter of very high community concern. Factors of general deterrence and condemnation are paramount. In this case, there are a number of aggravating circumstances within the meaning of s 11A(1) of the Sentencing Act, which would in any event amount to such. First, both N and K, and perhaps to a lesser extent V, were under the care or supervision of the defendant. Second, both N and K were under the age of 13; in N’s case at the time the offending commenced. In N’s case, there was an act which I consider likely to have degraded or humiliated her; that of the insertion of ice cubes and a lollypop into her vagina. Next, some of the offending involving V and N took place in the presence of other people; this related to indecent touching while in the spa. Next, while N was subjected to violence and the threats of violence, that was not at the same time of the unlawful sexual acts nor did it directly facilitate their commission. However, although it might not fit the statutory description of an aggravating circumstance, it remains an aggravating feature in my view as it provides an explanation for N sometimes responding as she did. Force was used in relation to K. First, the defendant put his hand over her mouth, dragged her into the bedroom and held her down. Second, he forced her head onto his penis. Lastly, I am not satisfied that the statutory prohibition on taking into account the offender’s good character as contained in s 11A(2) applies. I accept that the defendant is otherwise generally of good character, but in all of the circumstances of this case, I think that factor has some, but no great weight.
The law is that a person sentenced for maintaining a sexual relationship with a young person on the basis of three or more identified occasions of sexual offending, should ordinarily suffer the same penalty as if the offences were charged separately, subject to the significantly moderating factors of proportionality and totality. The law requires such moderation to avoid completely crushing and disproportionate sentences resulting from simple arithmetical accumulation. If the evidence shows that the extent of the crime goes beyond identified occasions, it is often not possible to do more than make an estimate of that extent, and the court takes into account that the identified offences were part of ongoing abuse. As I have noted, that is the case here with counts 1 and 2. Of course, the totality principle is also to be applied when assessing the overall effect of the sentences for each crime.
I need to say something about s 11(3) of the Sentencing Act which commenced on 2 October 2019. That requires a court which imposes a single sentence on an offender for more than one child sexual offence, to identify the sentence that would have been imposed for each child sexual offence, had separate sentences been imposed. This was introduced as a result of a recommendation made in the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. It came about because of widely expressed dissatisfaction with concurrent sentences. I would observe that concurrent sentences for multiple sexual offences do not seem to have been a feature of the sentencing landscape in this State, but that is now of no concern. The Commission discussed but rejected creating a statutory presumption in favour of cumulative sentencing. It noted that the imposition of concurrent sentences can cause distress to victims and survivors, but went on to say that given the principle of totality, adopting a simple presumption in favour of cumulative sentencing would be unlikely to provide victims and survivors with any greater comfort. It said, “In order to comply with the principle, head sentences for child sex offences would need to be reduced in order to avoid a crushing sentence, which might be just as distressing to victims and survivors.” It considered that sentencing for multiple offences should, to the greatest possible degree, provide separate recognition for separate episodes of child sexual abuse offending, certainly for multiple victims, although acknowledging at the same time, that in making the recommendation it had no expectation of longer sentences. Accordingly, I take the provision to mean that a court is to identify the sentence that would have been imposed for each child sexual offence if it had been imposed completely separately, and absent any consideration of the totality principle. All things considered, I have formed the view that I will impose cumulative sentences, which of course carries with it the application of that principle. It is the entirety of the offending and the overall result which I should bear in mind. The exercise is an imprecise one and not without difficulty.
Mr B, because of the need to protect children and young people, your serious criminal conduct calls for a clear and robust response. You deprived the complainants of the proper nature and benefits of late childhood and early adolescence, and caused long-term disabilities and difficulties for them. Each of them was entitled to expect to be safe in your home and in your company. You gravely betrayed positions of trust you held in respect of each; in particular N, who was your stepdaughter. The need for personal deterrence is perhaps not now a major factor in your case but strong condemnation of what you did is important. There is really little that entitles you to leniency. You are convicted of the crimes. On count 1 you are sentenced to 3 years’ imprisonment to commence on 27 November 2019. On count 2 you are sentenced to 6½ years’ imprisonment to be served cumulatively. On count 3 you are sentenced to 2½ years’ imprisonment, again to be served cumulatively, and on count 4 you are sentenced to 1½ years’ imprisonment to be served cumulatively.
I order that you not be eligible for parole in respect of each sentence until you have served the following periods. The respective non-parole periods are 18 months, 42 months, 15 months, and 9 months. The overall result is a period of 13½ years’ imprisonment, and you will not be eligible for parole until you have served 7 years.
I am required to make an order under the Community Protection (Offender Reporting) Act unless I am satisfied that you do not pose a risk of similar offending. I cannot be so satisfied. I order that your name be placed on the register and that you comply with the obligations under that Act for a period of 15 years upon your release.