DPP v T [Tascca]

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Evans J,Tennent J
• Judgment Date: 21 December 2012
• Court: Court of Criminal Appeal
• Date: 21 December 2012
• Docket Number: 198/2012

[2012] TASCCA 15

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Evans and Tennent JJ

198/2012

Director of Public Prosecutions

and

T

Aust Dig Criminal Law [3521]

R v Timbs unreported 11/1974, applied.

Aust Dig Criminal Law [3535]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Crown appeal alleging manifest inadequacy — Pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, eight counts of producing child exploitation material and two counts of possessing child exploitation material — Found guilty of three counts of rape — Whether sentence of seven years' imprisonment with parole eligibility after four years manifestly inadequate.

Criminal Law — Appeal and new trial — Appeal against sentence — Power of appellate court — Generally — Ability of court to make findings of fact.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

21 December 2012

1 The Director appealed against a sentence imposed by Porter J of seven years' imprisonment, and an order that there be no eligibility for parole for four years, on a sole ground of manifest inadequacy in all the circumstances.

2 Most of the facts stated in these reasons are drawn from the statements of the learned judge in his comments on passing sentence. However, some have also come from the evidence of the complainant, which his Honour accepted, and a few from watching parts of the recording made by the respondent of his commission of the crimes. I mention that because his counsel submitted it is not open to the Court to make findings of fact that were not made by the learned judge. No authority for that proposition was cited and it was contrary to the authority ofR v Timbs unreported 11/1974 per Neasey J at 12, noted in Sentencing in Tasmania by Professor Warner, 2^nd ed, at par15.220.

3 The sentence was imposed for 14 sexual crimes. The respondent pleaded guilty to 11 of them and was found guilty by a jury of three of them. The ones to which he pleaded guilty were one count of maintaining a sexual relationship with a young person under the age of 17 years, eight counts of producing child exploitation material and two counts of possessing child exploitation material. The jury found him guilty of three counts of rape. He was acquitted of one count of rape.

4 All the crimes related to the one complainant. The conduct represented by the crimes to which he pleaded guilty, other than the possession offences, occurred between February 2008, when she turned 14, and February 2011, when she turned 17. The three counts of rape occurred in the two month period that followed.

5 For about seven years up until she was 14 years old, he was in a relationship with her mother and so effectively he was her stepfather. After that relationship ended, he continued to be involved in her life and upbringing, particularly in relation to matters of discipline that arose.

6 The learned judge found that the crime of maintaining a sexual relationship with a young person under the age of 17 years was constituted by sexual acts committed by him on 19 different identified occasions over the three year period. The complainant stayed with him over many weekends throughout that time and on most, if not all, sexual activity took place, often on more than one occasion.

7 All of the sexual acts were without her consent. He was in a position of control over her. He was able to have his way with her as a consequence of violence, threats of violence and the use of his position as disciplinarian to overbear her will. She was continually under the influence of threats made by him and submitted to his demands. Some of the threats included that he would kill others and put recordings of what they were doing on the internet. Sex with him became part of her life and she felt she had no choice. Some of the sexual acts were acts of punishment.

8 He recorded some of the sexual activity on an audio and visual recorder. Approximately three hours of footage was found in his possession. It was graphic and depicted all of the forms of sexual activity engaged in which, the learned judge correctly found, amounted to further abuse. This Court viewed excerpts from the recorded footage. They showed occasions of vaginal, oral and anal rape.The complainant was crying out and complaining throughout much of them. It was disturbing and difficult to watch. At least part of his reason for recording the material was to ensure her continued compliance and silence. Of the 19 identified occasions on which sexual acts were committed on her before she turned 17, at least seven of them included acts recorded by him.

9 The identified occasions, and the three separate crimes of rape committed shortly after she turned 17, took place in the context of other regular, ongoing, non-consensual activity of the same nature over the period to which I referred.

10 The first identified occasion comprised an indecent assault and an aggravated sexual assault. The second involved a vaginal rape. She described it as like razor blades going in and out of her and she was crying. Thereafter, the sexual acts involved non-consensual mutual masturbation, vaginal intercourse, oral intercourse and anal intercourse. Episodes of sexual activity were prolonged, lasting up to an hour on occasions.

11 She described the first act of anal intercourse as occurring when she was crying and screaming. After it he told her that every time she told a lie it would happen again. The acts of anal intercourse were usually committed in the form of a punishment and he would tell her ‘you're getting it up your arse’.

12 She described oral intercourse as ‘awful’, his penis would smell disgusting. She would tell him that and sometimes he would wash it, but other times he would not do so and on those occasions she would cry and he would hold her head and...