STATE OF TASMANIA v TRAVIS WAYNE SPAULDING 12 JUNE 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to one count of indecent assault, and one count of doing an indecent act with a young person under 17 years. The complainant in each is the same; a young woman born in 1999, J. I am also dealing with a summary offence of assault with indecent intent, the complainant in which is J’s sister, T, born in 2002. During the relevant period, the girls lived with their grandmother and they had been in her care from a young age. The defendant is a long-time family friend of the complainants and their grandmother. That friendship started when the defendant had a brief relationship with the complainants’ mother in his late teens; he is now 29. Over the years the defendant regularly spent time at the complainants’ home. He shared meals, dropped off food items, mowed lawns and the like. In 2014, when J was 15, she moved into a flat at the rear of the home. At that time she was a high school student. The defendant often met her on the way home from school and walked her home. He spent time in the flat with her, often playing video games. Sometimes the defendant would massage J’s shoulders. At times when doing this, he would move his hands through the back of her school dress and reach around to touch her breasts under her clothing. He persisted notwithstanding that he was asked not to do it. The charge covers the period from the start of 2012 until the end of 2014, but there is, of course, only one charged incident. The Crown, however, says that there was more than one instance of this conduct. That is not disputed, so the defendant does not have the benefit of this being an isolated occurrence, out of character. A similar situation exists in relation to the conduct the subject of the second indictable matter. Although the period alleged is from the start of 2012 until the end of 2018, the Crown says it was about when J was 15. The particular offence was committed when she was lying on her bed watching TV. The defendant came in and sat down on the bed. Without warning he put his hands between J’s legs from behind and touched her vagina. He rubbed her vagina, back and forth, over her underwear. She pulled away, rolled over and pretended to go to sleep, after which the defendant left. The third matter, that involving T, happened some time between July 2017 and May 2018. The defendant and T were sitting together on a couch. He had his left arm around her shoulder with his hand resting on her stomach. At one point, he moved his hand up and down T’s body and touched her breasts over her clothing. She moved his hand away and he desisted. A report was made to police in mid-May 2018. A few weeks later he was interviewed and made admissions to the conduct but saying he massaged J for therapeutic purposes, although confessing that he said to her he knew that it was provocative. He said he was sexually attracted to J. He admitted a parent/child type relationship with T, saying the two would hug, tickle and wrestle, but he admitted poking her to the breast and groin area when she would ask him to stop. He accepted that given police involvement, he had done wrong but did not consider his behaviour “had been a big deal”, saying that he could just not control himself all the time. I have victim impact statements from both girls. Suffice it to say that both have been significantly traumatised by what happened. That is particularly so in J’s case as she has self- harmed on occasions. They have both become untrusting and anxious. To one extent or another both suffer nightmares and flashbacks which cause stress and anxiety.
The defendant has no recorded history of offending, other than a traffic infringement notice in early 2016. He presently lives with his older brother and has a close relationship with his mother who provides assistance to him. The relationship with J and T’s family has ended. He is unemployed but in receipt of a disability support pension. Prominent in consideration of his personal circumstances is his mental health. I have a comprehensive report from a clinical psychologist, Mr Damien Minehan, dated 20 May 2019. That reveals that the defendant grew up in the care of his mother after his parents’ acrimonious separation at the age of 4. There is a history of difficult family relationships and inconsistent contact with his father. There are indications of increasing social difficulty and narrow areas of interest from preschool age. The defendant said that school was difficult for him and he experienced high levels of bullying. In his early high school years he moved and went to live with his father, but said his father was incapable of being a parent, the defendant exposed to alcohol and other substance abuse. He returned to live with his mother when he was 16 and completed his schooling. Mr Minehan notes that in 2013, a diagnosis of autism spectrum disorder, commonly known as Asperger’s Disorder was made. A cognitive assessment suggested that the defendant was relatively high functioning, and that the primary issues for him were in relation to social functioning. After a diagnostic assessment, Mr Minehan shares the opinion that the defendant suffers autism spectrum disorder. He says this was present from an early age and continued through preschool, into adolescence and adulthood. The defendant’s deficits are largely in the social domain, and include understanding social interactions, social rules and maintaining and understanding relationships. This lifelong condition has impacted on his ability to operate effectively socially, as well as to understand many aspects of social interaction. I am told by his counsel that he finds it difficult to cope in employment situations because of contact with people. In Mr Minehan’s view, this impairment in social comprehension is very likely to have contributed to the offending behaviour. This, in the sense that it is likely to have affected his abilities to exercise appropriate judgment and to appreciate the wrongfulness of his conduct. Mr Minehan says, “These things have contributed significantly to the offending behaviour”. In addition, Mr Minehan says that the defendant’s significant social issues may make prison an extremely difficult place for him because, given his experience of high levels of bullying and harassment in the past, it would seem likely that he would be targeted within a prison environment. Further, he says the difficulties experienced when in prison are very likely to contribute to a deterioration in the defendant’s mental health. The Crown takes no issue with any aspect of Mr Minehan’s report. Mr Minehan has discussed the Verdins principles as such, and I am satisfied that they are enlivened to the extent Mr Minehan has outlined. I take into account the guilty pleas which have practical value. The complainants did not have to give evidence. All of what I have set out in my view justifies an individualised approach involving more leniency than might otherwise be expected. At the same time, there is a need to recognise the vulnerability of the victims and the breaches of trust involved.
Mr Spaulding, I hope you now understand that what you did was wrong. You have to be very careful how you behave yourself around other people; in particular, in relation to sexual contact. I am not going to send you to gaol immediately, but I will suspend the operation of the term of imprisonment that I am going to impose. You are convicted of all matters and sentenced to six months’ imprisonment the execution of which is wholly suspended on condition you commit no offence punishable by imprisonment for a period of two years. You need to be very careful. What I have just said means what it says. If you commit any offence punishable by imprisonment, and there are many and they include some driving offences for instance, a court can be asked that you serve that time in gaol. You would have to demonstrate that it was unjust not to do so. I cannot be satisfied that you do not pose a risk of committing a relevant offence in the future within the meaning of the Community Protection (Offender Reporting) Act. I order that your name be placed on the register, and that you comply with the reporting conditions for three years.