STATE OF TASMANIA v RBAY 26 SEPTEMBER 2025
COMMENTS ON PASSING SENTENCE PEARCE J
You were found guilty by a jury of persistent sexual abuse of a young person. At trial, the prosecution case was that between some time in mid to late 2013 or early 2014, and early 2015, you committed an unlawful sexual act against the complainant on ten identified occasions, in the context of other sexual abuse. The acts were either indecent assaults or indecent acts with a young person. For this crime, what follows from the verdict is that each member of the jury was satisfied beyond reasonable doubt that an unlawful sexual act was committed against the complainant on at least three such occasions. It was not necessary for each member of the jury to be satisfied that the unlawful sexual acts were committed on the same three occasions. The defence case was that the jury should not be satisfied that any unlawful sexual acts occurred and that the complainant’s account was a fabrication. The jury, as it was directed, could not have been satisfied of guilt unless it was satisfied beyond reasonable doubt of the truth of the evidence of the complainant about at least three of those occasions. Consistency with the verdict requires that I find that at least three occasions occurred. Beyond that, it is my function and responsibility to make findings in relation to the nature and character of the persistent sexual abuse. Facts adverse to you must be proved by the State to my satisfaction beyond reasonable doubt. Facts in your favour must be proved by you on the balance of probabilities.
In 2013 you were 46 and lived in a small residence in central Launceston. You lived alone except that your son spent time there from time to time. During the earlier part of that year you were introduced to, and became friends with, the complainant’s mother, who I will refer to as P. P was 34 and was facing a number of personal issues. She had poor health and had been charged with a high range drink driving offence. She had separated from her husband and was engaged in contentious family court proceedings concerning property and contact with children. You began to provide her with support and assistance. P had three children, the complainant, then aged 14, and her two younger siblings. The prosecution case was that they began to spend time at your home. The evidence establishes that by September 2013 at the latest you were close enough to the complainant that she treated you as a father figure, a person to whom she could come for advice and assistance. She confided in and trusted you. You paid her a lot of attention. Her biological father had played little part in her life and she was not close to her step-father. She expressed her affection to you in a letter she wrote for your 47th birthday in October 2013 and again in a Christmas card that year and in things she told her school counsellor. The complainant was a keen sports person. You helped out by transporting her to and from games and practice, and she, with P and sometimes her younger siblings, spent time at your home, sometimes staying overnight. A bedroom in your home was set up and referred to as her bedroom.
Her evidence was, however, that you began to display a sexual interest in her. She described you coming into close physical contact with her, pressing yourself against her and looking at her in a way she said was not innocent. It became apparent to her that contact like this was not accidental but neither was it unwelcome. The first occasion on which this manifested itself in an overt way, and the first specific occasion she identified, was when you kissed her. It occurred at your home when you passed at the bottom of the stairwell. It was a sexual kiss on her lips and you gently pushed her back against the wall. She said that this did not come as a surprise to her and she kissed you back. She let it happen even though she knew she shouldn’t. She was unable to say with certainty when this occurred. She said that from then on there were many other occasions of sexual conduct between you. There was sexual touching in various forms. The next occasion she identified commenced with kissing in a corridor, but this time you pulled up her dress, pulled down her underpants and began to lick her vagina and touch her vagina with your fingers. You moved to a bedroom onto a couch where this sexual touching continued. It was the first time she had experienced sexual activity of this nature. The third identified occasion, another occasion of oral sex, occurred in what was called her bedroom. On the fourth identified occasion she said that you offered her a massage when she complained of soreness after sport. In the course of the massage, as she was lying face down, you undid her bra and reached around and touched her breasts. The fifth identified occasion occurred when you and the complainant were alone at your home, in the lounge room. You removed your boxer shorts and had her masturbate your penis with her hand. It was, she said, the first time that you had her do this and she recalled it as a progression of the sexual activity. She said she had not touched a penis before. You did not ejaculate, however you withdrew to the bathroom and she could hear noise consistent with you masturbating. She described this as then occurring on later occasions. For the most part she did not see you masturbating but her suspicion that it was happening was confirmed on an occasion on which she deliberately returned to see what you were doing. The sixth identified occasion occurred in the bathroom at your home when you had her simulate oral sex on you while you masturbated yourself. The seventh identified occasion was said to have occurred not at your home but during a visit to your mother’s home in suburban Launceston. The complainant said that you and she went covertly to the garage where you removed her pants or shorts and licked and touched her vagina. She described the location and layout of the home, who else had been present on that day and her concern that you might be discovered.
The eighth occasion was said by the complainant to have occurred in a car after you and P and the complainant had been together at your sister’s home in outer Launceston for a Christmas function in 2015. You and the complainant contrived a situation in which you left together in your car to pick up your son and on the journey she rubbed your penis over your clothing. She described the location and her concern about the possibility she may be observed. The ninth occasion was again back at your home where, she said, she rubbed your erect penis through your trousers as you sat together at the computer.
According to the complainant, these identified acts occurred in the context of many other acts of a similar nature. Throughout the period of the offending you and she found excuses to spend time together alone. There were some occasions of sexual touching when others were present in the house despite the risk of discovery. I am satisfied that P had some concerns arising from her observations of the very close relationship between you and her daughter. This culminated in her, one morning after returning to your home unexpectedly from taking her younger two children to school, finding you and the complainant cuddling intimately in your bed. It was the prosecution case that this was an indecent assault, and was the tenth and final identified occasion of an unlawful sexual act. According to the complainant, her mother, after observing this, asked her whether anything of a sexual nature had happened between you but the complainant denied it. Even so, the complainant’s evidence was that after this occasion she did not stay at your house again. She said that she was extremely nervous about what had happened and she began to distance herself from you. As to when this final occasion occurred, the complainant was not precise. She said that it was before her 16th birthday in May 2015. She reasoned that it was a few weeks before, because she remembered you, not all that long afterwards, coming to her home and then taking her and her mother to breakfast just before her birthday, and that the meeting was tense and awkward.
You contend that I should not be satisfied beyond reasonable doubt that most of these acts occurred. You accept that I must find that three were proved, but submit that the only ones which I should find proved are the first occasion, the initial kiss, the fourth occasion, the touching of the breasts during the massage, and the tenth occasion, the cuddling in bed. Through your counsel you have submitted that there are reasons to distinguish between these and the other occasions and that I should not be satisfied to the criminal standard that occasions 2, 3, 5, 6, 7, 8 and 9 were proved. I would direct myself, as I directed the jury, that I could not find the occasions proved unless satisfied that the complainant was, in all essential respects, an honest and accurate witness. You submit that I should doubt her credibility. A number of related contentions underlie that submission, the individual and combined force of which you argue should lead me to doubt the complainant’s evidence. You suggest that the complainant overstated and exaggerated the number and nature of the sexual acts which occurred and that the general contact between you and the complainant was much more limited. As a result you contend that the opportunity to offend did not arise, at least to the extent she alleged, and that the offending was confined to a few discrete occasions. Further, you argue that I should find, arising from examination of the chronology of events, that the offending occurred only in March, April and May 2014, not the longer period asserted by the prosecution. If that were true, it is contended, some of the acts the complainant described could not have occurred. It was also submitted that I should find that the complainant embellished her evidence of the tenth occasion, which undermined her general credibility.
For the following reasons, none of these matters cause me any doubt about the truth of the evidence of the complainant in its essential respects. Although there were many reasons to question the evidence of her mother, as well as the man who later became the complainant’s partner, I found the complainant’s account to have been compelling and highly persuasive. She gave her evidence in a calm and coherent manner and I believed what she said. Despite her general poise when giving evidence, she exhibited genuine distress when recounting the more confronting aspects of the events she described. Her evidence was given in a manner, and with a level of detail about relevant and contextual circumstances which, I find, was entirely inconsistent with it being fabricated or imagined.
As to when the offending commenced, some background is necessary. The evidence established that P was involved in a single vehicle car accident in July 2012 at which time she was found to have a very high level of alcohol in her blood, almost five times the legal limit. She claimed that another person was driving the car, but she was found guilty in November 2013 and disqualified from driving. By then she had already been friends with you for some time. I think it likely, and so find, that P was unable to drive from the time the result of the blood analysis became known, well before the formal order of disqualification in November 2023. The complainant’s evidence was that her mother lost her licence at the time of the accident. You began to help P and the complainant. The assistance which P required not only arose from her inability to drive but also from her complaints of a very serious medical condition. She claimed, falsely as it later emerged, to have cancer. She and her children spent time at your home although the younger siblings were not always there. You assisted the complainant by driving her around including to and from her frequent sporting commitments. Again, I am satisfied that this commenced well in advance of November 2013. This combination of factors affected P’s residential arrangements. According to P’s evidence, until early 2014 she and her children lived either at Dilston, where she had been living with her husband, or with friends in Launceston or a rental property in Invermay. In February 2014 she moved with her children to George Street in central Launceston, not far from your home. You asked that I infer from other evidence given by the complainant that the first unlawful sexual act, the kiss, was committed only after she and P had moved to George Street in February. However, the passage of the evidence relied on as supporting the inference that the complainant only started staying at your home after February 2014 does not, to my mind support that inference at all. It could be the case that the first occasion was not until February 2014, but that conclusion is not compelled by the evidence. I am satisfied that the complainant was spending a lot of time at your home, including by staying there, well before February 2014, and the first occasion could have been any time between the latter part of 2013 and early 2014.
As to when the final unlawful sexual act, the cuddling in bed, occurred the evidence establishes unequivocally that the relationship between you and the complainant was over by the time of her 16th birthday in May 2015. You submit however, that I could not be satisfied that it extended beyond May 2014. In support of that submission you point to things that the complainant said to her school counsellor. The complainant accepted that she told her school counsellor on 6 June 2014 that she had not seen you “since the fight”. She accepted that on 1 July 2014 she told the counsellor that she had invited you to her school but you had to stand away while she and her mother talked to the teacher. Then on 2 September 2014 she told her counsellor that her mother was in another relationship, that is, had another boyfriend. The complainant could not remember saying any of those things to the counsellor, but accepted that they were said, and agreed with the proposition, when it was put to her, that by then there was no longer any relationship between you and her mother and you were no longer “part of the family unit.” It is contended that this strongly suggests that the eighth occasion the complainant described as having happened after that, following a visit to your sister’s home at Christmas 2014, could not have occurred as and when she described. It then followed, the subsequent occasion in front of the computer could not have occurred then either.
However, I am satisfied that the offending continued throughout 2014. For my part, I find the statements made by the complainant to the counsellor to be equivocal. The subject matter is not clear and the context was not explored. There were other reasons for occasional temporary interruptions in the relationship between you and P. Although the complainant accepted the proposition which it was put to her that she and her mother were no longer part of the family unit by September 2014, she had no independent memory of that and it was a conclusion she drew from the notes at the time they were shown to her during her evidence. I am satisfied that a better indication of the time frame is given by her description of the event at your sister’s house at Christmas 2014. Your contention is that, if the chronology you suggest is correct, then her evidence about that event must either be fabricated or imagined, and she could not have been present at it. However she was able to give a cogent description of the event, which everyone agrees, had to relate to Christmas in that year. I believed her. Although her truthfulness was challenged generally at the trial, it was not suggested to her, and there is no evidence, that this event which she described did not occur. I am satisfied that she was at an event at your sister’s home at Christmas 2014 and reject the argument that her evidence about the occasion identified with that event must be untrue.
The complainant’s evidence was also criticised on the basis of an email she sent to a police officer in June 2020. She accepted that in the email she made statements about the number of times that she had been sexually abused. She asserted in the email that you had performed oral sex on her 160 times, touched or rubbed her vagina 320 times, that you had her fondle or rub your genitalia 1,100 times and masturbated you 160 times. She accepted also that on none of these occasions, except for the last one, was any inappropriate contact noticed by anyone else. It is submitted that her statements are so exaggerated and inherently implausible that they cannot be true and should lead me to doubt the complainant’s honesty and reliability. In turn, they are based on what is said to have been her exaggerated version of the amount of time she was spending at your home and the number of times she stayed overnight. In her evidence she said that at one stage at least she was staying at your home four or five times a week and something of a sexual nature would happen every time she was there. That contrasted with the evidence of her mother, who seemed to accept that they stayed there on only 10 to 15 occasions. Although she agreed it could have been more, the substance of P’s evidence was quite different to that of her daughter in this respect.
I accept that the statements made by the complainant in the email were likely to be overstatements, but they do not lead me to doubt the substance of her evidence. The context is important. It was an email formulated in 2020 by a girl, then aged 21, about events which occurred in 2014 when she was 14. The email was sent at the request of a police officer who asked her, to use her words, to put a rough number on the occasions of sexual abuse. She explained that she did some sort of mathematical calculation based on the number of times she was usually at your house during the week. I am satisfied that the email is nothing more than her best effort to comply with that request, and that it was intended to convey her evidence, which I accept, that sexual conduct was common during the offending period and occurred, as she perceived it, whenever the opportunity arose. As to the nature and extent of her general contact with you and the number of times she stayed at your home I accept her evidence in favour of the account given by her mother. As I have already noted, there were many reasons to question P’s evidence. For a prolonged period she maintained a terrible lie, including to her daughter and to a court, about a cancer diagnosis. Distressingly, the complainant was not aware of the falsity of her mother’s claim until the trial. I accept the complainant’s evidence that a bedroom was allocated to her in your home, a circumstances which was most unlikely unless she was spending a considerable amount of time there. I am satisfied that the level of engagement between you and her during 2013, 2014 and into 2015 was substantially as the complainant described it.
One other reason advanced for questioning the credibility of the complainant’s evidence arose from her evidence about the tenth occasion, when her mother discovered her and you cuddling in your bed. It was not put to the complainant that this event did not occur and there was no evidence it did not occur. I find that it did. Without more it was an indecent assault. The nature of the contact was intimate and sexual. However, at trial she gave evidence that the cuddling included touching of her vagina. It was not something she had said before and her evidence about it was strongly challenged. She said that it was something that she had recently remembered as a result of her thinking about it carefully. It may well have occurred, and I find her evidence to be honest, but I think that there is a reasonable possibility that she was mistaken in light of the passage of time and the numerous other occasions on which such touching occurred. However, when all of the evidence is taken into account, it makes no difference to my assessment of her credibility generally. Nor does it make any material difference to the exercise of the sentencing discretion. The offending ceased after this occasion because the complainant withdrew from further contact with you, likely contributed to by her mother’s attitude to what she had seen.
I find the complainant to have been a truthful and substantially accurate witness. I am satisfied beyond reasonable doubt that every occasion of an unlawful sexual act occurred as she described, with the exception that I am not satisfied beyond reasonable doubt that the final occasion included touching of her vagina. The identified occasions occurred in the context of other sexual acts of a similar nature. Sentence will be imposed on that factual basis. I find that the period of offending began in either late 2013 or early 2014 and continued until early 2015. For some of that time the complainant was 14 and for the rest of the time she was 15.
I am required to take into account such of the aggravating factors stated in the Sentencing Act 1997, s 11A, as may apply. Some of the aggravating factors which may have made the conduct worse are not present. Your acts did not involve violence, or use of alcohol or drugs or any other degrading or humiliating conduct. Others may have been present in the house, but in this case that is a factor of no weight because it did not give rise to any embarrassment, fear or apprehension on the complainant’s part. Despite the nature and frequency of the sexual touching I have described, there was no occasion on which you penetrated either the complainant’s mouth or vagina with your penis or other body part. Her evidence, which I accept, was that you told her that you would not have sexual intercourse with her until she was 17. I also accept her evidence that you did not ejaculate in her presence. It was suggested by the prosecution that your friendship with and assistance to the complainant’s mother was motivated by a wish to have sexual contact with the complainant but I make no such finding. I am satisfied that the sexual attraction developed over time resulting from contact with her, not the reverse. Throughout the period that this conduct was taking place, the complainant was a willing participant. I accept her evidence that you told her that she, and not her mother, was the one you were attracted to and that there was no sexual relationship between you and P. The complainant knew it was wrong but enjoyed the attention and the sexual acts, which she sometimes initiated herself. The absence of consent would have been a further aggravating factor, but her consent is not mitigating. She was, by reason of her age, incapable of giving consent, and one powerful reason the law is in place is to protect young persons from their own immaturity and misjudgment. There was a very large difference in age, maturity and power. The complainant was under your care, supervision and authority. Your obligation was to protect her, not abuse her. By acting as you did you breached her trust and the trust placed in you by her mother. You asked her to keep your conduct a secret. The full extent of your offending did not come to light until much later, when the complainant eventually disclosed some limited information to her mother and partner, and then more fully to the police. The prohibition of sexual acts with children is founded on the presumption of harm. The complainant’s victim impact statement amply demonstrates the long term, often life long, psychological damage which can be done by crimes of this nature. This crime was committed when she was at an age critical to her long term emotional and psychological development. Her ability to form healthy relationships with men has been seriously affected. There may be other factors at play but I am left in no doubt that your conduct contributed to it.
You are now aged 58. You have no relevant prior convictions. After leaving school you had an industrious background in business until your ability to continue was affected by your physical and mental health. You have made considerable contributions to the community. I accept the evidence of character witnesses given at trial to the extent that you are otherwise of good character, although that does not reduce the objective seriousness of the offending. You were married for 20 years although your marriage was marred by some personal tragedy. It ended in acrimonious circumstances in and following about 2010, all of which combined to affect you psychologically. It has not been suggested that you suffer from any mental health condition or deficit which reduces your culpability, the need for deterrence or the type of sentence which may be appropriate. You are not entitled to the mitigation which would have arisen from a plea of guilty, particularly in a case like this where the need for the complainant to give evidence and face cross examination about matters of the utmost sensitivity was not avoided. There has been no expression of remorse.
A matter relevant to sentence is your current serious ill-health. Included in the material I was given was a report dated 18 July 2025 from Professor Michael Buist, a general physician and intensive care specialist, and a report dated 14 August 2025 from Dr Andrew Buckle, a gastroenterologist. At the end of 2024 you were hospitalised with episodes of acute pancreatitis which required surgical removal of your gallbladder. That disorder combined with a number of pre-existing conditions including oesophageal spasm, chronic reflux disease, back pain and depression and anxiety. Since the surgery, you have suffered malnutrition, apparently due to malabsorption of nutrients, and serious epigastric pain resulting in dramatic weight loss and muscle wasting. You have received specialist treatment from physicians, surgeons and dieticians. The treatment includes an extensive medication, hormone replacement and dietetic regime but so far to apparently little effect. You were recently admitted to the Launceston General Hospital with starvation ketosis but discharged after a short period. Dr Buckle expresses his working diagnosis as a functional gastroenterological disorder overlapping with chronic pancreatitis, post-cholecystectomy syndrome, oesophageal spasm and likely narcotic bowel, most of which will present ongoing issues requiring intensive and continued input from a multidisciplinary team including dietetics, gastroenterology and psychological services. According to Professor Buist, despite having the best minds searching for a reason for your deteriorating condition, they are at a loss to explain it. Many of the investigations which have been undertaken reveal no apparent cause. Although other medical practitioners refer to progress towards your recovery, Professor Buist expresses the opinion that there is very little which may be done to reverse your situation and that, for whatever reason, you may be slowly dying from starvation. Thus, sentence is to be imposed in light of the highly confronting possibility that, if sentenced to imprisonment, you may die while serving the sentence. Professor Buist also identifies a risk of misdiagnosis arising from confusion between oesophageal spasm and acute myocardial infarction which is relevant because you also have co-existing cardiac artery disease.
Ill health is a factor which may be a reason to reduce a sentence, including with regard to eligibility for parole. Poor health may also moderate the need for specific deterrence. I would accept that imprisonment will impose a greater burden on you by reason of your health. I am not persuaded that there is a serious risk that imprisonment will have a gravely adverse effect on your health. Outside prison your health is already highly problematic. Some medication may not be available to you in the prison environment but it will be the responsibility of the prison authorities to provide appropriate care and treatment for you. My duty is to impose a sentence which sufficiently reflects the objective seriousness of your crime and the level of your blameworthiness. I was asked to consider a period of home detention but the crime is too serious for that. The sentence must sufficiently address the need for punishment for your own actions and, as far as a court can achieve, deterrence and protection of the public through a signal to others who would perpetrate such abuse that the consequence will be harsh punishment. A term of imprisonment is the only appropriate sentence. I will order the earliest possible eligibility for parole. Although I think that, with the passage of time and changed circumstances the risk is low, I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period five years from your release. For completeness I order that any money paid by any person pursuant to the order for your bail be forthwith repaid to the person who paid it.
RBAY, you are convicted on the indictment. You are sentenced to imprisonment for four years from 26 September 2025. I order that you not be eligible for parole until having served half of that term.