STATE OF TASMANIA v SJH 23 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
SJH you plead guilty to two counts of indecent assault and one count of possessing child exploitation material. I also agreed, pursuant to the Code, s 385A, to deal with your plea of guilty to one count of possessing a bestiality product.
The indecent assaults were committed between 1 January 2018 and 23 August 2018 against a single female child. At the time you were 35 and she was 8. She is the daughter of close family friends and you had known her all her life. She and her parents regarded you as her uncle and you referred to her as your niece. You were trusted to spend time with her alone, including by overnight visits to your home. Both indecent assaults were committed while she was asleep in your bed, where you insisted she sleep. On the first occasion, you put your hand inside her pyjama pants and touched her vagina. She woke up and you removed your hand. On the second occasion you were also in bed, and, while next to her, you began to masturbate. You took her hand and used it to masturbate yourself.
Your offences came to light in August 2018. You were participating in an internet chat room concerned with child pornography. You exchanged written messages with a person who was, unknown to you, an undercover police officer based in Queensland. Over the course of a few days, the effect of what you told the person was that you were interested in child pornography, that you were sexually interested in your niece and that you had touched her while she was asleep and had masturbated over her. You also stated that you wanted to take still images and videos of her while she slept and trade them. You asked what sort of images the other party to the conversation may be interested in seeing. You even disclosed an interest in what you referred to as “knocking her out”, which could only have meant administering some substance to her so as to render her unconscious, or at least less likely to wake up while you took photographs and performed other acts such as oral sex. Such was the concern of the Queensland police about the conversation that they took steps to identify you and notified the police in this State. Your home was searched. In the course of the search, child exploitation material was found on a laptop and associated hard drive and two mobile phones. Across all devices there were a total of 942 child exploitation images and videos. In addition there were two bestiality images which form the basis of the summary charge. Of the child pornography material, a substantial proportion of it was in the most serious categories: 10 images and videos depicted bondage of children, 5 depicted bondage and bestiality involving children, 359 depicted penetrative sexual activity between adults and children, and a further 149 depicted non-penetrative sexual activity between adults and children.
When interviewed by the police you admitted that the child pornography material was yours, that you had sent the chat room messages I have referred to, but falsely claimed that no sexual touching of your niece had occurred.
You are now aged 37. You were 35 when these crimes were committed. You are single with no dependants, with a stable upbringing and education and industrial record. You developed post-traumatic stress disorder after, in your late teens, having found your father dead. You remain close to your mother and sibling. You claim that your interest in pornography commenced with stories, developed to lawful pornographic images but then to child pornography. Even if resort to such material followed a reduction in inhibitions resulting from alcohol or drug use, that is not mitigating. While she was with you, the complainant had access to the computer. However I accept that the chance that she may happen across the material while unsupervised was small and it is not suggested that she did so. Some of what you said in the chat room statements is true. However you now contend that the appalling statements of intention to drug the complainant and commit further acts against her while she was asleep were bravado, and that you had no intention to carry them out. Those statements do not form the basis of any of the charges against you. At the very least, however, they indicate a complete lack of immediate remorse, and that protection of the public is a relevant sentencing consideration. You say you are now ashamed for what you have done. The absence of relevant prior convictions is not mitigating because, otherwise, you would not have been in a position to offend. It is in your favour that you have pleaded guilty. For all charges the plea facilitates justice, but it is of greater weight for the charges of sexual assault. It avoids the need, if it were ever likely, that the complainant would have to give evidence. It is indicative of remorse and an acceptance of responsibility when, despite your admissions, at least part of the case against you may have been difficult to prove. As a result, your head sentence will be reduced, and I will allow the earliest opportunity for parole.
Nevertheless, these are serious crimes. Sexual offences against children are presumed to cause psychological harm, sometimes over a lifetime. The complainant woke during the first assault. It cannot be established that she woke up during the second assault or realised somehow what was happening to her. A victim impact statement from the complainant’s mother describes changes in the complainant’s behaviour. She reverted to sleeping with her sister. She has nightmares and wets the bed. She seems no longer interested in things she was once interested in. It is possible that some of this results from the loss of her close relationship with you, but the effects which are described reflect the type of impact which commonly results from an awareness of sexual offending. Other effects may emerge over time. What makes your conduct even worse is that it constituted such an egregious breach of the trust placed in you by a very young and vulnerable female and by her parents who left her in your sole care. The reasons that possession of child exploitation material is so serious have been stated many times. Child pornography offences put children everywhere at risk of grave sexual abuse. The children depicted in the images are real victims, and your conduct contributed to the demand for such material. With allowance for the plea, that offence alone justifies imprisonment for a year. The sentence I impose is to be a fair and just reflection of your total criminality.
SJH, you are convicted on each count on the indictment and on complaint 35494/19. I order that the computer, the hard drive and two mobile phones seized by the police be forfeited to the State. 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 that Act for a period seven years from your release. I impose one sentence. You are sentenced to imprisonment for two years and nine months from 20 October 2020. I order that you not be eligible for parole until you have served half of that sentence.