WACC

STATE OF TASMANIA v WACC                                                                             BRETT J

COMMENTS ON PASSING SENTENCE                                               22 OCTOBER 2019

 

Mr C, a jury has found you guilty of one count of sexual intercourse with a person under the age of 17 years.

I am satisfied beyond reasonable doubt that the relevant facts are substantially in accordance with the evidence of the complainant. She was 14 years and four months old at the time of the relevant act. You knew each other because for a period of time you were in a relationship with the ex-wife of her older brother. For some weeks prior to this crime, you and the complainant had been communicating by text message or social media, sometimes late at night. You had also met at her school on at least one occasion. Although it must have been obvious to you that it was inappropriate to communicate in this way on an ongoing basis, given the disparity in age and the covert nature of the communications, I cannot be satisfied beyond reasonable doubt that your motive in keeping the relationship going was the prospect of sex with the complainant, nor that you were grooming or otherwise developing the relationship for that purpose. You will not be sentenced on that basis.

On the night of the crime, you and the complainant were engaging in such communication. During the course of this communication, the complainant suggested that you and she go for a drive. You collected her at a location well away from her house. She told her mother that she was going to a friend’s house. You were aware of the subterfuge and well aware that she would not have been permitted to go for a drive with you. Notwithstanding my finding about your earlier intentions, I am satisfied that when the complainant suggested that you go for a drive that night, you anticipated that she may agree to engage in sexual intercourse with you, and thereafter, you intended that that would occur during the course of the drive.

You drove her to a park in Margate. Sexual intercourse took place there. It occurred with the full consent of the complainant. I am satisfied that you ejaculated inside the complainant. However, there was discussion between you before the commencement of sexual intercourse concerning contraception and the complainant told you that she had taken contraceptive precautions. There is no reason to believe that this was not true.

There are serious aspects with respect to this crime. At the time of its commission, you were 30 years of age. There was a significant disparity in your respective ages. You were well aware of this. Having regard to my observation of the complainant during the police interview conducted shortly after the crime, she appeared to have a level of maturity consistent with her young age. I accept her statement to the police that she was sexually inexperienced. You were familiar with her because of the family relationship and would have been well aware of her vulnerability and immaturity. Further, I accept that a degree of trust arose from the family relationship, although this is not in the same category as cases where trust arises from a parental or much closer relationship. I reiterate my satisfaction that from the time she had suggested going for a drive, you contemplated that sexual intercourse would take place. I am satisfied that you deliberately and opportunistically took advantage of the youth and emotional immaturity of the complainant to achieve sexual gratification for yourself. Having regard to your comments to the complainant afterwards, and the lies you told later that night about your whereabouts, it is clear that you were well aware of the wrongfulness and illegality of your conduct. The law makes sexual intercourse with a young person a crime because of the potential adverse impact of premature sexual activity, when the person is not old enough to make mature and informed decisions about engaging in such activity. As I have said in other cases, this crime exists to protect young people from exploitation and from the consequences of their own ill-considered decisions and conduct. This case clearly demonstrates the type of conduct which the law attempts to proscribe. It follows that the complainant’s consent to sexual intercourse is of little significance. Further, although no specific adverse impact can be identified at this point in time, and she has not been a willing party with respect to this prosecution, the unfortunate reality is that she may well experience impact from the commission of this crime in the future.

You are now 32 years of age. Your criminal history consists largely of traffic offences, some of them quite serious. However, you do not have any prior convictions for conduct such as this. You were in employment at the time that the crime was committed but your employment was subsequently terminated and you have remained unemployed since that time. You have not demonstrated any remorse for this crime and you are not entitled to the benefit of a plea of guilty. Having said that, I suspect that you regret your conduct because of the predicament in which you now find yourself.

I am satisfied that the only appropriate sentence is one of imprisonment. Because of your lack of prior convictions for similar conduct, I intend to partly suspend the sentence. However, the seriousness of the crime and the need for general deterrence requires that you spend some time in custody. You are convicted of the crime and sentenced to imprisonment for a period of 15 months. That sentence will commence from 17 October 2019. The final six months of that sentence will be suspended for a period of 12 months, commencing from the date of your release from prison. The condition of suspension is that you are not to commit an offence punishable by imprisonment during that period. Such an offence, of course, would include the type of serious traffic offence for which you have been convicted in the past. You are not eligible for parole in respect of the custodial part of the sentence.

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 lack of remorse, the age of the complainant and the opportunistic nature of your conduct, 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 on the date of your release from prison.