STATE OF TASMANIA v ALAND CLENTON STORAY 23 OCTOBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Storay, has pleaded guilty to one count of sexual intercourse with a young person.
The crime was committed on 8 October 2016. On that day, he had consensual sexual intercourse with a female aged 13. He was 32 years old at the time. The female had been staying at his residence, and that is where the act of sexual intercourse took place. There seems to be a suggestion, and it seems to be common ground, that there was some form of relationship between him and the female at the time. It has now been clarified today that that relationship did include some prior acts of sexual intimacy. The nature of those acts has not been spelled out, but there was some sexual element to the relationship. He is only to be sentenced for the one act of sexual intercourse. The relevance of the prior sexual conduct is simply in terms of background and to establish the context in which the act of sexual intercourse occurred, in particular that it was part of what seems to have been a relationship between the two of them, and it establishes its consensual nature. In other respects, it seems to me, given the consensual nature of the act, the fact that it did not occur in isolated circumstances, and was part of an ongoing course of conduct, has limited relevance to sentencing.
I did raise with the prosecutor the suggestion in some of the evidence that this relationship had been continuing with the knowledge of the complainant’s mother. The complainant was also subject to a care and protection order. The prosecutor does not assert that the sexual relationship was with the knowledge of the child protection authorities, but, in any event, it seems concerning that such a relationship could take place in circumstances where the child was intended to be under the care and protection of the Secretary and subject to the Secretary’s supervision. I do not think that bears greatly on Mr Storay’s culpability in respect of this offence, but it does help set the context in which this act of sexual intercourse occurred.
The defendant is now aged 35 years. He has a limited criminal history. It does include some acts of assault, but he does not have any convictions for offences of a sexual nature. His longer term history has been discussed by his counsel and is also set out in considerable detail in the psychological report prepared by Damien Minehan, which has been provided to me. I will not discuss his history in detail, but I do note his very dysfunctional childhood, characterised by regular, and I think quite serious, emotional and physical abuse at the hands of his father and then subsequently his stepfather. I note also his current circumstances, which appear to have a stable and positive aspect to them. He is in a relationship with a young woman.. He has one child already, a 7 year old child. I am told by his counsel that his partner is a source of considerable stability and support for Mr Storay, and that is relevant of course to any risk of repetition of a crime such as this. I note also what has been said by his counsel concerning his achievements in the field of education.
A matter of some significance in this case is Mr Minehan’s assessment of Mr Storay’s intellectual capacity. Mr Minehan’s opinion, based on clinical assessment and cognitive testing, is a diagnosis of mild intellectual disability. This is consistent with Mr Storay’s broader history. He has been in receipt of a disability pension since he was 16 and, despite his achievements in the area of education, he has never held paid employment. The cognitive assessment revealed an IQ score of 55, which is in the extremely low range and indicates an overall intellectual function better only than approximately .1% of 100 individuals in his age group. As Mr Minehan notes, this significantly affects Mr Storay’s capacity for reasoning, problem-solving and identifying and responding to risks and other life problems.
Mr Minehan carefully considered the relevance of Mr Storay’s intellectual disability within the context of the Verdins principles. I agree with his conclusions. In particular, I agree that, in the context of this crime, Mr Storay’s intellectual disability has significant impact on the assessment of his moral culpability. I accept that his intellectual disability would significantly impact on his capacity to have insight into the consequences of his conduct on the complainant. Further, it can be inferred that his intellectual capacity and probably emotional maturity would have been at the relevant time much closer to that of the complainant than would be indicated by the disparity in their respective chronological age.
Mr Minehan also considered that the last Verdins point has relevance. He is of the opinion that Mr Storay’s intellectual disability would significantly reduce his ability to cope with the stresses and pressures of prison life. It would make his experience of prison far more difficult and traumatic than it would be for somebody with a higher intellectual capacity.
There is no doubt that this crime was a serious one. The law which makes sexual intercourse with a person under the age of 17 years a crime, exists primarily for the protection of children and young people. At 13 years of age, this female was a child, entitled to the protection of the law against the consequences of her own poor and immature choices, and the conduct of adults who would take advantage of her youth. Having said that, I am satisfied that Mr Storay’s intellectual capacity significantly mitigates his culpability. He should also receive credit for his plea of guilty, and I have been given information today by his counsel concerning the real efforts he has made to deal with one of the underlying problems which impacted on his commission of this crime, and that is his excessive use of alcohol. It seems to his credit that he has taken steps to deal with that problem.
Because of the age of the complainant and the need for general deterrence, a sentence of imprisonment is required. However, because of the mitigating factors, it is, in my view, appropriate in this case to wholly suspend the sentence. I intend to include probation supervision as a condition of suspension, for the purpose of providing the type of support recommended by Mr Minehan
Mr Storay, you are convicted of this crime and sentenced to imprisonment for a period of 12 months. The whole of the sentence will be suspended for a period of 18 months on the following conditions:
1 That you are not to commit another offence punishable by imprisonment during that period. Your counsel will be able to advise you of what is meant by an offence punishable by imprisonment, but I can tell you that it includes most offences on the statute books, not just offences similar to this one.
2 That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from today. The Court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within three clear days of today. In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(b) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to your intellectual capacity and the age of the complainant, I am not satisfied of that matter and, accordingly, must make an order. This is a Class 2 offence and the maximum reporting period is 15 years. I do not think that the maximum period is necessary but, given the nature of the risk, I think that the order should be for a significant period. Accordingly, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of five years, which will commence from today.