STATE OF TASMANIA v RLR 2 JUNE 2022
COMMENTS ON PASSING SENTENCE JAGO J
RLR, you have pleaded guilty to one count of persistent sexual abuse of a young person. The offending took place during the period June 2021 until September 2021. At the relevant time you were aged 27 and were a single mother to a then six year old son. The complainant was aged 13.
In early 2021 you became friends with the complainant’s mother as you each had children in the same class at school. Because of your friendship with the complainant’s mother you would often socialise at the complainant’s home. It was common for you to share meals with the complainant’s family. You would also, at times, babysit the complainant and his two younger brothers. Within the complainant’s family unit you were viewed as an “aunt figure”. You also worked at the complainant’s school as a cleaner.
In around May 2021 the complainant added himself as a friend on your Snapchat account. Thereafter the two of you began messaging each other. The complainant confided in you about issues he was having at school. You agreed to take a photograph with him in order to “get some girls off his back”. Subsequently, a photo of the two of you hugging was taken. Shortly after this you were at the complainant’s home. You and the complainant kissed. Another young person photographed this kiss. This was the first of 9 specific occasions of unlawful sexual acts which, in this case, constitute the crime of persistent sexual abuse of a young person. After this first kiss, you and the complainant began spending more time together. The complainant would often visit your home or you would collect him from an agreed location and go for a drive together. When you spent time with the complainant you would share kisses and cuddles. There were episodes of sexual touching and the two of you talked about having feelings for each other. You would share showers together. Some of this sexual touching occurred in front of other young people, including one of the complainant’s friends and also your young son.
In July 2021 you and the complainant engaged in oral sexual intercourse. The complainant put his penis into your mouth. He also inserted his fingers into your vagina. Thereafter vaginal sexual intercourse occurred. This is the second specific occasion relied upon. No condom was used and the complainant ejaculated. You were on the contraceptive pill throughout the course of your relationship with the complainant. There was a further act of vaginal sexual intercourse which occurred when the complainant was at your residence assisting you with some chores. This is the third occasion relied upon. Again, the complainant did not wear a condom and ejaculated. During an occasion in the July school holidays, you were staying at the complainant’s home, at the invite of his mother. Once everyone had gone to bed the complainant messaged you asking you to go to his room. You did so. You engaged in oral sexual intercourse with the complainant by placing his penis into your mouth. The complainant also inserted his fingers into your vagina. Thereafter vaginal sexual intercourse occurred. This is the fourth occasion relied upon. Again a condom was not used and the complainant ejaculated.
The fifth occasion occurred after you collected the complainant from his father’s home, without his father’s knowledge. You went to a park area. You engaged in oral sexual intercourse with the complainant. The complainant put his penis in your mouth. He also inserted his fingers into your vagina and thereafter vaginal sexual intercourse took place in the car. Again, a condom was not used and the complainant ejaculated. A further occasion of sexual intercourse occurred after you had arranged to collect the complainant from a high school. You went for a drive together. You engaged in oral sexual intercourse with the complainant by putting your mouth over his penis. The complainant inserted his fingers into your vagina and vaginal sexual intercourse occurred. This is the sixth occasion specified in the charge. Again, a condom was not used and the complainant ejaculated.
The seventh occasion occurred at a park. On this occasion you had agreed to collect the complainant and one of his friends and take them to McDonald’s. You then went to the park, and whilst the friend was out of the car, you and the complainant engaged in oral sexual intercourse. You put your mouth onto and over the complainant’s penis for a period of time. The complainant’s friend returned to the car and observed this act of sexual intercourse occurring, although this was not known to you. The friend was 13 years old at the time he witnessed the incident.
In August 2021 you and the complainant had vaginal sexual intercourse at your house. This constitutes the eighth occasion. Shortly after this incident the complainant’s mother became suspicious about the complainant sneaking out of the home of an evening. She subsequently asked the complainant’s father to look through the complainant’s phone. That search revealed a number of entries in the notes section of the phone indicating a relationship had developed with you. There were also photographs on the phone of you and the complainant kissing and cuddling. After the discovery of this material, the complainant’s mother confronted you. She showed you one of the photographs on the phone. You said you could explain but the complainant’s mother left abruptly, presumably upset, before you did so. She told you, however, that you were not to contact any of her children. Shortly after being confronted you created an alias Snapchat account so you could continue to communicate with the complainant.
The complainant’s mother also spoke to the complainant about the matter. The complainant denied anything was happening with you, but the following day he committed self-harm.
Approximately two weeks after this, and despite being told by the complainant’s mother that you were not to have any contact with the complainant, he attended your house and you let him in. You and the complainant started kissing and cuddling before having vaginal sexual intercourse. This constitutes the ninth occasion relied upon. Again, the complainant did not wear a condom and ejaculated.
In addition to the nine specified occasions already outlined, there were numerous other occasions of vaginal sexual intercourse. This was an ongoing sexual relationship that lasted for a period of approximately four to five months. Whilst the focus of the sentence must be the 9 identified occasions, I am satisfied it is appropriate to sentence on the basis that they were not isolated incidents of sexual abuse but part of an ongoing course of conduct towards the complainant.
There are a number of aggravating features of your crime. The complainant was only 13 years of age, and at a vulnerable and formative stage of development. There was a significant disparity in age between you and him. Your crime involved a breach of trust. You had been befriended by the complainant’s family and you took advantage of that friendship to pursue the relationship with the complainant. By doing so, you breached the trust placed in you, by not only him, but his family. Further, several of the sexual acts were witnessed by other young persons who were also at a formative and vulnerable age. You exposed them at an important stage of their sexual and emotional development to inappropriate sexual behaviour.
You are now 28 years of age. You have no prior convictions. That is not uncommon for crimes of this nature. You are a single mother to a now seven year old child. Your son has been placed in the care of his paternal grandmother during the course of this sentencing hearing. Despite the matter being adjourned to allow for a further report to be obtained, and your bail being extended, the paternal grandmother refused to return your son to your care. You have now been served with a Family Court application indicating the father is seeking for your son to live on a full-time basis with him. You have always been his primary care-giver and this has been a very stressful experience for you. You have had a very difficult upbringing. Your mother suffered from significant mental health and drug and alcohol issues. It led to you experiencing a traumatic and chaotic upbringing, including being sexually abused by one of your mother’s boyfriends. I am told that your mother was aware of the sexual abuse but did nothing to stop it. At the age of 9 you went into foster care because of your mother’s inability to provide a safe environment. Thereafter you lived transiently between foster care placements and your mother’s home. By the age of 16 you were living independently. You have a sister who suffers from autism. You provide her with ongoing support. You have a strong work ethic having been employed in the disability care sector and more recently as a cleaner within the Education Department. When this matter came to light you lost your employment within the Education Department and will effectively be precluded from returning to that type of employment in the future. The consequences of your crime have been significant for you. You have a long history of depression. I have had the benefit of two reports from Dr Max Jacobs. The reports describe a long standing history of depression flowing from your poor upbringing and your experiences of neglect. Your depression was frequently untreated because of your reluctance to take medication given the effect you had seen it have upon your mother. The reports indicate that you have a “debilitating lack of confidence and self-esteem which has led her to be isolated, have few friends and to extreme loneliness”. Dr Jacob opines that your depression led to you becoming socially withdrawn, isolated and lonely. Your low self-esteem meant that you felt you were “not good enough” and that no one would be interested in you as a friend or partner. The friendship you developed with the complainant was comforting to you. Dr Jacobs opines that your motivation for the relationship was the need for acceptance and love rather than sexual gratification. In essence he says that your depression led to a severe lack of confidence and social anxiety which in turn led to you isolating and withdrawing. When the friendship with the complainant developed you felt comforted, developed a bond with him and an environment was created whereby the sexual offending occurred.
It is necessary to consider the extent to which your mental health condition contributed to the offending behaviour and the extent to which this impairment should appropriately affect sentence. I am satisfied your mental health condition contributed to the commission of the crimes, but only to a limited extent. The reports of Dr Jacobs clearly establish your depression was severe. One of the consequences of your depression was that you became isolated and withdrawn. This was exacerbated by your lack of confidence and social anxiety. Because you felt isolated you became more attached to the relationship with the complainant and it comforted you. However, the need for acceptance and love that Dr Jacobs opined you were seeking could still have been achieved with the relationship remaining platonic, but you allowed it to become sexual. It was your responsibility as a mature adult to resist that.
The evidence suggests you were well aware of the wrongfulness of your conduct. During your first interview with police you very much minimised your behaviour and denied many of the sexual acts. You told police that you and the complainant had discussed having feelings for each other but could not pursue a relationship because of the age gap. You told police during a second record of interview that if the matter had not come to the attention of the authorities the relationship would “probably be continuing, even though it shouldn’t be”. Despite knowing it was the wrong thing to do you continued the relationship with the complainant. Indeed, even after being confronted by the complainant’s mother, you continued the relationship. Put simply, I do not accept that your lack of confidence and social anxiety created an environment whereby you were so isolated as to be compelled to resort to a relationship with a 13 year old. I do accept the consequences of your depression were such that it impacted upon your judgement and left you vulnerable to pursuing inappropriate relationships. To this limited extent I accept your mental health condition – depression – contributed to the offending in a way which reduces your moral culpability, although to my mind, not to a significant degree.
I take into account that the sexual intercourse occurred over a short period of time, and was consensual – albeit the complainant’s consent was informed by his emotional and developmental maturity as a 13 year old. I accept your relationship with the complainant was one of mutual affection. There is no suggestion at any point your behaviour was predatory, controlling or manipulative. But of course, as I have noted, there was a difference in age of some 14 years, and a corresponding difference in both sexual and emotional maturity. The law which makes such conduct criminal exists for the protection of children and young people. The law recognises that young person’s require protection not only from adults who might take advantage of them but also from their own poor and immature choices often made at a time when they lack the emotional and intellectual maturity and judgment to fully appreciate the consequences of those choices. It is now well understood that the consequences for a young person of engaging in premature sexual relations, even where consensual, can be detrimental and damaging and the true extent of the impact may not emerge until much later.
Here the complainant has suffered ongoing psychological consequences. He has experienced episodes of self-harm. He has required ongoing psychological support for his mental health. His victim impact statement reveals regret for the relationship. He has been forced to change schools, lost friendships and experienced feelings of guilt because of the impact the relationship has had upon his wider family. I also note the statement that has been provided from the complainant’s mother. It describes the sort of significant and psychological and emotional harm that is commonly experienced by victims of childhood sexual abuse. The simple reality is, these crimes so often corrupt and disturb the development of young people and have the potential to cause lifelong psychological harm.
I take into account that since the commission of the crime you have resumed your anti-depressant medication, are now regularly attending for psychological treatment. You have also obtained new employment and your employer is a great support to you. She has provided a reference to the Court. I take into account the contents of that. I also accept you are remorseful for your conduct and now recognise how wrong your behaviour was. Your early plea of guilty is reflective of an acceptance of responsibility. You are entitled to credit for that. The plea saved the complainant the distress and humiliation of giving evidence in a criminal trial, and the early indication that the plea would be one of guilty meant the complainant did not have to experience the stress associated with anticipating the need to give evidence.
The breach of trust involved here and the complainant’s age make this a serious matter. The sentence must reflect the need to protect the community by deterring others in a similar position who may be tempted to act in the same way, and to punish and denounce such acts. The seriousness of the offending must in my view, be marked with a period of imprisonment but I intend to suspend part of it in light of the personal factors, including solid prospects for rehabilitation, which pertain to the defendant.
RLR, you are convicted of the crime. In light of Dr Jacobs report I think the risk that you may commit another offence of this nature in the future is low, but because of the nature and circumstances of this crime, I am not satisfied that you pose no risk. Thus I must make an order under the Community Protection (Offender Reporting) Act 2005, directing that the Registrar cause your name to be placed on the register and that you comply with the reporting obligations under that Act for a period of three years from your release. I sentence you to a term of imprisonment of two years. I suspend one year of that sentence for two years from the date of your release on condition you commit no crime punishable by imprisonment during that period. I order that you not be eligible for parole until you have served one half of the operative part of that sentence.