STATE OF TASMANIA v SS 6 DECEMBER 2024
COMMENTS ON PASSING SENTENCE MARTIN AJ
SS, you have pleaded guilty to persistent sexual abuse of a young person by maintaining a sexual relationship with the young person between about 1 June 2023 and 24 April 2024. During that period, you were aged between 24 and 25 years and the child, born in 2009, was aged between 14 and 15 years. The child was in Years 8 and 9 at school.
It appears you and the child met in about February 2023 at a birthday gathering for the child’s sister. At that time, you knew the child was aged 14 years. According to the victim impact statement from the child, you added the child on Snapchat and subsequently communications occurred over Snapchat, which became more romantic.
In her victim impact statement, the child says that when you separated from your husband the child helped you move house. In the child’s words, “you started hanging out more” and she bonded with your children, who were very young.
About five months after you first met, the child stayed overnight at your home and the first act of sexual intimacy occurred. You slept in the same bed and kissed. From then on, the relationship became more sexual. The child stayed at your house most weekends and during these visits you regularly engaged in sexual activity with the child, including oral sex and mutual penetration of each other’s vagina with hands and sexual aids.
On a number of occasions you filmed and photographed the sexual conduct using your mobile phone. You sent a number of these images and videos to the child.
In November 2023, after your conduct had been discovered and you had been charged, the child was interviewed by police. She emphasised that she started the sexual relationship and was consenting throughout the relationship to you being involved with her sexually, and I quote, “in any sort of way”. The child tended to downplay the extent of the sexual activity and, in her victim impact statement, when speaking of the first sexual contact, which was her first sexual experience, the child said, “I wouldn’t change it to this day”.
From the ongoing sexual relationship encompassed by the charge to which you have pleaded guilty, the Crown has identified six specific occasions of sexual contact between you and the child. The first being the occasion of sexual intimacy which occurred in June 2023 when the child slept at your premises, in the same bed, and you kissed. This amounted to an indecent act with a child contrary to s 125B of the Criminal Code.
The second occasion occurred approximately three weeks later when you penetrated the child’s vagina with your fingers. This amounted to the crime of penetrative sexual abuse of a child contrary to s 124 of the Criminal Code.
The third occasion occurred in about July 2023 and was the first act of mutual vaginal penetration when digital penetration occurred. This was another crime of penetrative sexual abuse of a child.
On the fourth occasion late in July 2023, the child sucked your exposed breast, an act which you photographed on your mobile phone and sent to the child’s phone. This was an indecent act with a child or young person.
The fifth occasion occurred on 30 August 2023 when you used your entire hand to penetrate the child’s vagina. Again, you photographed the act and sent it to the child. This was another crime of penetrative sexual abuse of a child.
The final and sixth occasion occurred in September 2023 when you used a strap-on dildo and a small vibrator to touch and penetrate the child’s vagina. Again, you filmed these acts. This was another crime of penetrative sexual abuse of a child.
In about the end of September 2023, the child’s sister and her partner discovered images on an old mobile phone which the child had used. The images included numerous photographs you had taken of yourself in various stages of undress, including underwear and with your breasts exposed, and of you and the child cuddling and kissing. One image depicted the child sucking your exposed breast, which was occasion four, and another was a close up picture of the child’s vagina with your hand fully inserted inside it, occasion five.
A report was made to Tasmania Police, as a consequence of which your mobile telephone was seized and examined. A number of hidden and deleted images and videos were recovered, including the same images of the child sucking your breast and of your hand being inside the child’s vagina. The material included a video of a strap-on dildo penetrating a vagina, a second image of the strap-on dildo and a separate blue vibrator being used on the same vagina. Given all the material before me, I infer that it was you using these items to penetrate the child’s vagina.
A number of “selfies” taken by the child were also found on your mobile. They depicted the child’s exposed breasts and her fully naked in the shower. The images were taken by the child and sent to you in September 2023. You saved the images on your mobile. Some of the images were accompanied by written text from the child, describing in graphic detail sexual acts that she wanted you to do to her.
When you were interviewed by police on 6 October 2023, you made full admissions concerning the sexual activity and the recording of sexual acts. You admitted sending images and recordings to the child.
As to matters personal, you were born in 1998 and were aged between 24 and 25 years at the time of the offending. You were born in Hobart and were part of a complicated family tree, unaware of an older brother and two older sisters with your same biological father until you were in primary school. When seen by a clinical and forensic psychologist, who provided a very helpful report, you described your life as a young person as chaotic. It was clear to the psychiatrist that you felt your needs as a child were not met. You frequently moved schools and struggled academically. Sometimes you were cared for by a woman who abused drugs and physically abused you.
According to your statement to the psychologist, you are bi-sexual and disclosed a history of having been the subject of domestic violence, the details of which it is unnecessary to canvass. At the age of 20 you met a man with whom you were in a relationship for four years, as a consequence of which you have children aged three years and 18 months. You were subjected to intimate partner violence and emotional abuse. The relationship ended in February 2023 when he threatened that if you did not give him a kiss, he would rape you. The breakup of the relationship was very difficult for you.
From your disclosures to the psychologist, it is apparent that you have a history of post-traumatic stress disorder, borderline personality disorder and symptoms of depression and anxiety. Your conduct in the past has included self-cutting behaviours and a suicide attempt. Over the years, you have been prescribed anti-depressant and anti-anxiety medication.
The psychologist diagnosed you as suffering from a borderline personality disorder, which she described as a “pattern of instability in inter-personal relationships, self-image, and affects, and marked impulsivity, beginning by early adult and present in a variety of contexts”. You possess “a highly fragile sense of self” and you feel that your thoughts and feelings do not matter to anyone. The negative experiences over the years, and your personality disorder, provide the context for your response to the child. Apparently you did not see her as a child because she was mature in her personality and not like a normal teenager. You described to the psychologist that the child was very caring in her nature and helped considerably with your children. From your perspective, the child met emotional needs that had not previously been met. You said you became aware that the child had mental health issues of her own and had experienced mistreatment by male friends, which made you feel that you had matters in common with the child. The psychologist concluded that against your background, you found the child provided significant emotional and practical supports of a type that you had not previously experienced. To the psychologist, you justified engaging in this sexual relationship on the basis that it met your needs, was consensual and had not caused any harm.
The psychologist considered whether your mental health condition impaired your functioning at the time of the offending in such a way that it could be a consideration with regard to your sentencing. In her opinion, your moral decision making with regard to engaging in the sexual relationship with the child was over-ridden by your “desire for validation and emotional support”.
It is apparent from the report of the psychologist that you were vulnerable to poor decision making in the face of your feeling of validation. However, in the opinion of the psychologist, your personality disorder alone did not cause the offences. You were not highly emotionally dysregulated and you were not acting on impulse in a one off action. You were not severely impaired and unable to reason as logically, calmly and clearly as you always do in your every day life.
Your actions occurred across a lengthy period, giving you many opportunities to evaluate what you were doing. You clearly understood the wrongfulness of your actions. In the view of the psychologist, your mental health did not impair your functioning at the time of the offences.
As to the future, the psychologist reported that you are now fully cognisant of the law and committed to having no further contact with the child. This view was based on the clinical interview with you on 3 June 2024 and it is not clear whether the psychologist was aware of your breaches of bail to which I will turn in a moment. As to the future, the psychologist expressed the opinion that you are unlikely to engage in similar behaviour with an underage sexual partner in the future. She accepted your indication that your focus is on re-establishing contact with your children.
Prior to your arrest, you had not been in trouble with the law, and you had sole parental responsibility for the children. They are now with their father and you have not seen them in person since 20 April 2024. You have some phone contact with them and understand that they are in a very emotional and vulnerable state. As a consequence of your position, you are experiencing significant anxiety and depression for which you are receiving medication.
I accept that your absence from the children, and the impact upon the children, is a matter of great distress for you. Reuniting with the children, and re-establishing a normal life with them, will be a great incentive for you to stay out of trouble in the future. However, although I assess that you have reasonably good prospects of rehabilitation, your behaviour after you were charged on complaint gives rise to reservations.
On 20 November 2023 you were granted bail in the Hobart Magistrates Court. It was a condition of bail that you not approach or make contact with the child directly or indirectly by any means. However, on 7 December 2023 police located the child in the bathroom of your home. You admitted that your bail conditions included not contacting or being with the child and said the child had contacted you that day saying that she felt unsafe and suicidal. The child was dropped off at your home by a friend. You claimed you were no longer in a sexual relationship with her.
As part of sentencing, I am required to deal with complaint 1587/2024 charging you with a breach of bail.
The Crown facts, admitted by you, state that notwithstanding the bail condition that you not approach or communicate with the child, you and the child continued a sexual relationship until your further arrest for breaches of bail and remand in custody in late April 2024. Contact occurred in person, by phone and through the aid of a third party on the Arunta system while you were in custody. Police located the child at your home several times during that period. Text messages between you and the child included indecent and sexually graphic messages where you describe acts you intended to perform on the child on an upcoming camping trip.
In April 2024 you were charged with two breaches of bail on complaint 4081/2024 and I am required to deal with you for those offences. I am also required to deal with you for offences charged on complaint 8451/2024, which were committed by you after a restraint order was put in place by a magistrate on 26 April 2024, the day you were remanded in custody because you had breached the terms of your bail. The restraint order included the term that, in substance, you not have any contact, directly or indirectly, with the child except during and for the purposes of legal proceedings. In breach of the order, on 9, 11, 12 and 14 May 2024 you indirectly attempted to make contact with the child. Complaint 8451/2024 also includes six offences involving breaches of bail in February and April 2024 when you had contact with the complainant.
So, SS, you can understand why there is an ongoing concern that notwithstanding the incentive of getting back together with your children and leading a normal life, you have demonstrated a propensity in the past to disregard court orders, both bail and restraint orders, in favour of satisfying your wish to maintain contact with the child. This problem is exacerbated by the fact that the child has told me in her victim impact statement, not only that she would not change anything, but she was “incredibly upset and angry” at being kept apart from you.
While dealing with the impact on the child, contrary to the attitude you showed when speaking with the psychologist, although the child says in her statement there are no lasting impacts on her as a result of your behaviour, the child’s relationship with her family is strained and, as at 31 October 2024, she was not going to school because, in her words, “I’m just pissed off at the world”. No doubt this emotional state has arisen immediately following the intervention of family and authorities, but this is one of the problems created when adults like you engage in sexual relationships with emotionally immature and vulnerable children. This type of damage to children is not uncommon.
I accept that your mental health condition contributed, in a limited way, to your criminal conduct. However, as Dr Wright explained, you knew that your actions were wrong and you were not highly emotionally dysregulated or acting on impulse in a one-off action. Your conduct occurred across a lengthy period.
As has often been said in the criminal court, it is no excuse that the relationship involved mutual affection. The existence of mutual affection is not a mitigating circumstance. It means that the aggravating circumstance involved with a lack of consent or reluctance from a child, is absent. But the law exists for the protection of children and young people as the community recognises, to use the words of Justice Jago in another matter, “that young persons 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.” I also agree with her Honour’s observations that it is now well understood that the consequences for young people engaging in premature sexual relationships, even where consensual, “can be detrimental and damaging and the true extent of the impact may not emerge until much later.” The potential exists for lifelong psychological harm.
General deterrence, that is deterring others who are minded to take advantage of young children in criminal ways, is a dominant consideration. The community is greatly disturbed by offences against children, and the courts have a duty to endeavour to protect children through the imposition of appropriate penalties. Unfortunately, these types of crimes are far too common and persons who are tempted to engage in this type of criminal conduct must understand that the courts will respond and penalties will reflect the communities denunciation of such conduct.
Every crime of this nature against a child is a serious crime, but as with all crimes there is a scale of seriousness. You should understand, however, that your crime is not at the lower end of the scale of seriousness. Notwithstanding the consent of the child, there are aggravating features of your offending. The child was young and there was a significant disparity of age between you and her. She was vulnerable, and you were aware of her vulnerability. She was the child of a friend who trusted you and you abused and breached the trust, taking advantage of the friendship, and taking advantage of the child’s vulnerability. Your conduct occurred over a lengthy period and it was only brought to a halt through the action of the child’s family and authorities. It is an aggravating feature that for a period of about five months, you continued your criminal offending in repeated breaches of your condition of bail and the restraint order. It is also an aggravating circumstance that you engaged in the taking of images, both still and moving, of the sexual activity and in exchanging those images with the child.
In sentencing you, although I am not satisfied that you are truly remorseful for your conduct, as opposed to sorry and distressed by reason of the position in which you now find yourself, you will be given credit for your plea of guilty. I regard it as an early plea and it was an important plea which avoided the necessity of the child being involved in protracted legal proceedings, potentially including the giving of evidence in Court.
You are convicted of all offences charged on indictment and on the complaints to which I have referred. Although I am satisfied, with reservations discussed, that you have reasonably good prospects for rehabilitation, I am not satisfied that you do not pose a risk of reoffending. Pursuant to the Community Protection (Offender Reporting) Act 2005, I direct that your name be placed on the register and that you comply with the conditions specified in the Act for a period of three years from the date of your release.
Had it not been for your plea of guilty, I would have imposed a sentence of imprisonment for three years. After allowing for your plea, I impose a sentence of imprisonment for two years and three months, commencing 26 April 2024. That sentence will be suspended after you have served one year and three months, commencing 26 April 2024, on condition that for a period of two years from the date of your release, you do not commit any crime punishable by imprisonment.
Further, I make a community corrections order and direct that for the period of two years following your release, you are to be under the supervision of a probation officer and obey the directions of a probation officer as to your residence, place of employment and associates. You are to obey the directions of a probation officer concerning medical and other treatment, including counselling and treatment relating to psychological issues. Importantly, it is a condition of suspension that you do not contact or attempt to contact the child, directly or indirectly by any means, prior to the child turning the age of 17 years, which will occur in 2026.
It is also a condition that immediately following your release, you report to the office of Community Corrections in Liverpool Street in Hobart unless previously directed otherwise by a probation officer.