29 NOVEMBER 2011

COMMENTS ON PASSING SENTENCE

PORTER J

The defendant, Mr Martin appears for sentence having been found guilty by a jury of one count of sexual intercourse with a young person, and one count of producing child exploitation material. The crimes were committed on the evening of 13 September 2009 at the defendant's home and involved one female complainant, a girl who was then aged 12 years and 11 months. The defendant is convicted of the two counts and I allow 28 days from his release to pay the $100 victims of crime compensation levy.

The background to these crimes is widely known and has been the subject of much public discussion. As to the circumstances leading to these offences, and of course as to the crimes themselves, I will confine myself to the evidence presented in the trial and the material produced during the course of the sentencing hearing. For want of a better description and so as not to invent another name for the girl involved, I will continue to use the rather clumsy term of "the complainant".

In mid-2009 the complainant was living with her mother who had a close male friend. In late August 2009, the complainant was with her mother and the male friend at her mother's home. When her mother complained about not having enough money, the male suggested that money could be made from prostitution. It was agreed between the three of them that the complainant would become a prostitute. The following day, the male wrote out an advertisement. This advertisement proclaimed "New in town, Angela 18 years old", and a phone number was given. The male person arranged for the advertisement to be placed in the local newspaper. The advertisement appeared on 22 August 2009, and was repeated five times over the next three weeks. The mother booked a room at a city hotel where the complainant saw many clients over a two day period and had sexual intercourse with them. After this period at the hotel, it was decided that the complainant would work at the male's residence in Glenorchy. This went on for about the next month where the complainant worked mainly from Thursday to Sunday. Over the four week period, the complainant saw in excess of 100 people, with whom she had sexual intercourse. With the exception of the one occasion when she went to the defendant's home, this all happened at the male's unit. I digress to note that as to the fate of other clients, the Director of Public Prosecutions has published the facts as presented to him, the reasons only a few were spoken to, and the reasons for not proceeding against the even lesser number who agreed to speak frankly to police.

Returning to the narrative, the defendant saw the advertisement in the newspaper and rang the number on 11 September 2009. He went to the unit, was shown in by another female and met the complainant in the living room. The evidence shows that both the living room and the bedroom of the unit were darkened. In the bedroom she quickly undressed, he more slowly, and they had a short conversation which included the exchange of money. It is unnecessary to fully detail the events but he performed oral sex on her and was in the bedroom for about an hour when he became disconcerted by a male voice outside the room. In his police interview he said that he then dressed, during which time she apologised for the noise and he said that he had had a good time, with her replying in the same terms. He then asked her whether she did "out calls", which she said she did if she knew the person. He said he would call some time over the weekend. He telephoned on the Sunday and arrangements were made for her to come to his home.

Of course the defendant was not charged in relation to the events at the Glenorchy unit. In the trial, the complainant gave evidence by video link from a remote witness room as required by s6 of the Evidence (Children and Special Witnesses) Act 2001, with only a support person, and a Court technical officer, present. She said that she remembered going to the house, but initially said that she could not recall whether any sexual activity took place or not. She went on to say that the two had a spa bath, the defendant massaged her and he performed oral sex on her. He also took photographs of her, but she could not remember whether they were participating in any sexual activity when those photographs were taken.

In his police interview the defendant described how, after arranging the appointment with the complainant, she later phoned and put back the appointment by an hour. She also asked if he would pay an extra $100 because it was an "out call", to which he agreed. When she arrived he paid the $500 and at that time he noticed his camera on a kitchen bench which was attached to a battery charger. He asked her about posing for photographs for $50. She agreed to do this for $100. He went on to say that he performed oral sex on her for quite a time, after which she spoke in direct, graphic and somewhat complimentary terms, comments about what had happened. He said that she then started to perform oral sex on him but he had difficulty maintaining an erection so at that time they went into the bedroom where he took photographs of her. Some were of her performing oral sex and then he took her to other rooms where she posed. The two crimes were complete at that point in time. They had a spa bath where they had a conversation about a number of things, including her real name, why she was involved in prostitution (in which there were grains of truth), and more general subjects. At this stage it was close to the end of the available time. They got dressed, immediately after which he heard a loud knock at the door, to which the complainant responded that it was probably her friend who had driven her there, and had been waiting at a nearby hotel. In total there seems to have been about 126 photographs taken. Many are repetitive and were obviously taken immediately one after the other. Of the total number, only six show the oral penetration by the defendant of the complainant. With 31 of them the picture does not include the head or it is simply not possible to make out the complainant's facial features, although I am conscious that all photographs were stored together. Of the remainder, all with the exception of about 10, show naked or semi naked posing without the exposure of genitalia.

As to the complainant's age, the defendant told the police that he thought she was 18. He mentioned a number of factors in this. He said the bottom line was that she was advertised at that age, she looked that age, she was confident in her manner and in relation to sexual activity. It appears that in the preliminary discussions between the defendant and police, the subject-matter of the investigation was specifically put as the prostitution of a 12 year old girl. In his interview, he said that the total amount of $600 paid on the evening was what made him think of this particular girl, because it was an unusual amount. He said that he could not for the life of him think of anyone who was near 12. The jury had evidence of his possession of child pornography, to which I will later refer. This was before it in order to put into context statements made by the defendant in his police interview. These were to the effect that if he had slept with a 12 year old it was the most disgusting thing he could think of, and acknowledging that things looked bad with the photos of young children, that he had not knowingly had sex with someone under 18; he would "just find it abhorrent".

The jury were not able to reach a verdict in relation to a count of indecent assault relating to the oral sex just after the complainant first arrived. They could not agree as to whether the Crown has established beyond reasonable doubt that the defendant did not honestly and reasonably believe the complainant was 17. This may have some significance in terms of a factual basis for sentencing. The guilty verdicts relate to his oral penetration of her and the taking of the photographs. As to the first crime of which Mr Martin was found guilty, it is made out if sexual intercourse within the meaning of the Code is established, along with the objective fact of the person's age. Once those elements are established, it is a defence if the accused proves that he or she believed on reasonable grounds that the person was of or over the age of 17.

The verdict of guilty of sexual intercourse with a young person may mean a number of things. It may mean that the jury was not satisfied on the balance of probabilities that he had any belief at all, or satisfied that the defendant believed that she was 17 or more, but not satisfied that the belief was based on reasonable grounds; that is, he ought reasonably to have formed the view that she was younger. These options both mean that Mr Martin ought to have known that the complainant was under age.

As to the second count, in the context of this case, the issue was whether the Crown proved beyond reasonable doubt that the defendant knew or ought to have known that the complainant was under 18. It is not the Crown case that the defendant at any time set out to engage the services of an underage prostitute, and there is simply no evidence of that. It was not the Crown case, and there is no evidence, that the defendant at any time had a belief that the complainant was her real age. On the evidence provided by the defendant's police interview, I am positively satisfied that this was not so. The Crown accepts that the case is one of where the defendant ought to have known. I think the proper factual basis for sentencing consistent with the verdicts is that the defendant believed the complainant was 18, but by the time of the commission of the crimes, the reasonable grounds for that belief had subsided. He ought to have known that she was younger than 17. However, the evidence shows that reasonable grounds existed for thinking that the complainant was about 15, possibly 16 years old. Both investigating police officers initially mistook the complainant for her 15 year old sister, and even when properly identified, and during the course of the investigation, one officer's assessment of her age was 15 to 16. A police officer involved in youth affairs and with contact with the complainant from August 2008, put the complainant's age at somewhere between 13 and 15, and a child protection worker with contact with the complainant, also from August 2008, put her age at 15. All persons gave evidence that after speaking with the complainant for some time, it becomes evident that her emotional maturity is in accordance with her chronological age, which of course was known to them, their dealings with the complainant were not in the context of her work as a prostitute. On all of the evidence, I think that sentencing should be based on constructive knowledge of an age less than 17, but not a real or constructive knowledge of the girl's actual age.

Mr Martin has led an extremely industrious life and has contributed much to the community. Starting out in real estate, he ventured into motel management, during which time he was head of the Tasmanian branches of a number of tourist and associated bodies, and a member of national bodies. As was his father, he has been both mayor of the Glenorchy City Council and a member of the Legislative Council in which served as an independent member from May 2004 for six years. The list of his civic and community activities engaged in from 1983 to 2009 is lengthy and speaks of a person of high capabilities dedicated to community interests. He has no convictions for offences of any significance, although that is often the case with crimes such as these and the fact should not be given any great weight.

Mr Martin's offending is directly connected to treatment for Parkinson's disease. Many of the facts are set out in his police interview, but the position is now supported by expert medical evidence submitted after the trial and in the sentencing hearing. This seems to have commenced in 2003 but not properly diagnosed until about October 2005. The state of his life, including his work commitments was such that he was essentially celibate. He was prescribed one drug and reported a good response to this medication but soon found that it was insufficient to manage his symptoms. In August 2006, the dosage of this medication was increased and at the same time he was prescribed a dopamine agonist (cabergoline). This seemed to have little effect and in January 2007 the dose was doubled. It was reported that this dose was well tolerated and that there was some improvement in his physical symptoms. In July 2007 the dose of cabergoline was again doubled. Mr Martin had been experiencing hyperactive sex desires and had started to engage the services of sex workers. These difficulties were reported to his treating doctor in July 2008. The essential nature of the medication was maintained, but the particular type changed to pramiprexole in order to address the problem. There was some short term improvements but the difficulties continued. The medications proved to have disastrous consequences. In short, Mr Martin developed hypersexuality and other manifestations of an impulse control disorder. I have been supplied with comprehensive reports from a neurologist, Dr Evans, dated 2 June 2010, and Dr Ian Sale, a psychiatrist, of 17 November 2011. None of what is contained in the report, either reported fact or opinion, is disputed by the Crown. Dr Evans says this:

"Hypersexuality, or excessive sexual drive, are medical terms for a desire to engage in sexual activities at a level that is considered abnormally high in relation to normal development or culture and at a level that causes distress or serious problems for the person affected … It is considered to be a psychological disorder characterised by a hyperactive sex desire and an obsession with sex, and lowered sexual inhibitions. It is generally considered to be a form of or related to a range of psychiatric conditions called impulse control disorders (ICDs)."

Dr Evans goes on to detail a description given by Mr Martin of a pattern of behaviour which, in Dr Evans' opinion, would be very typical for dopamine agonist induced sexuality in Parkinson's disease, the behaviour emerging after the initiation of cabergoline. A short summary of the behavioural changes caused by this medication in Mr Martin are as follows:

Sex became an obsession.

At the end of 2006 he began looking at pornography on the internet which he had not done previously, and which activity increased over the following years. This included child pornography but I am not dealing with a sentence for that.

In January 2007 he started to engage sex workers, that activity becoming compulsive.

Between January 2007 and October 2009 he engaged 162 different sex workers (including the complainant) on 506 occasions spending approximately $150,000.

He recorded the full details of these encounters on a spreadsheet, and started collecting pictures of himself engaged with the sex workers.

There was a later expansion in his sexual interests with the engagement in July 2008 of a transsexual, and in August 2008 of a male sex worker, before which he had no sexual attraction to men.

Dr Evans says that "it is quite clear cut that Mr Martin had severe hypersexuality or compulsive sexual behaviour associated with dopamine agonist use. He also had a dopamine-agons induced change in sexual preference. The development of hypersexuality occurred in the context of the introduction of cabergoline approximately around the time when it was [first] increased. It stopped shortly after all dopamine agonist treatment was stopped in November 2009".

Dr Evans notes that individuals with dopamine agonist induced impulsive and compulsive behaviours often exhibit multiple different types of control disorder. He says that Mr Martin showed some evidence of dopamine agonist induced compulsive buying, and he also showed evidence of what is termed "punding", which means complex prolonged purposeless and stereotyped behaviour. In Mr Martin, this manifested itself in him spending many hours in the night preparing slide shows of pictures of women which he had downloaded from the internet, or taken himself. He did not watch these, but his compulsive engagement was in simply assembling them. He showed a tendency to excessive hoarding, and overall his punding was put on the moderate to severe basis. Another common feature which Mr Martin exhibited was addictive denial about the harm that the behaviour was doing to the person. Dr Evans says that Mr Martin's hypersexuality was compulsive and clearly very distressing and disabling. The distress and confusion caused to Mr Martin is plainly evident from his police interview when outlining the course of events.

Dr Evans concludes his report by saying that there is overwhelming evidence that Mr Martin's hypersexuality, punding, compulsive shopping and hoarding were directly attributable to the dopamine agonist for treatment of his Parkinson's disease, and that he was unable to control the dopamine agonist induced behaviour, even when aware of the potential link between his behaviour and the treatment.

Dr Sale says he doubted that there would be dissent that Mr Martin's difficulties represented a mental disorder, with a marked changed occurring from his previous level of functioning and which has had a disastrous impact on his life. Before the onset of Parkinson's disease, Mr Martin enjoyed good health and adjustment, there had been no prior aberrant sexual interests or behaviour, and in particular no suggestion of sexual interest in children. Dr Sale considers that Mr Martin's abnormal sexual behaviour over recent times was entirely a consequence of the effects of the medication prescribed to him.

After the medication was stopped there were difficulties in settling on an effective medication regime and ultimately in mid to late 2010, Mr Martin underwent two neurosurgical procedures for the implantation of a deep brain stimulator. There has now been a marked improvement in his movement disorder, but his illness is profound and progressive.

Since being charged in October 2009, Mr Martin has become more socially isolated. He does not venture out much and relies on friends to do his shopping and the like. He has suffered from anxiety and depression and suicidal thoughts. One actual attempted suicide may have been successful but for the intervention of a friend. The extraordinarily large amount of money he spent on sex workers and the high cost of his neurosurgery have deprived him of the benefit of his superannuation savings and he is now dependent on the income from a disability insurance policy, the payments under which will end when he is 65.

It is perhaps desirable in this case to say something about general sentencing principles. The Sentencing Act provides for a wide range of sanctions and measures designed to achieve the protection of the public through incapacitation, deterring others, preventing re-offending through punishment, incentive and rehabilitation, and the denunciation of the particular conduct. The response must be proportionate with the nature of the crime and the circumstances of the particular crime, including its impact, together with the circumstances of the offender all being taken into account. A great many different factors may arise to one extent or another in different cases. Mr Martin seems to have become something of a lightning rod for community outrage, channelled through the media, at the undoubtedly outrageous situation in which the complainant was put. The two people immediately responsible have been dealt with and are each serving ten years' imprisonment. Mr Martin is not to be sentenced on the basis that he is a representative, appointed by the media or a part of the community, of the men who paid for sex with the complainant and have not been charged. I have already referred to the report of the Director of Public Prosecutions concerning the facts as presented to him, and the reasons for, of the clients, only Mr Martin, being charged. In this sentencing process, that is where the matter should rest.

These observations lead to another principle of sentencing. As far as it is able to be achieved, given the wide range of facts and circumstances varying from one case to another, consistency, as far as it can be achieved, is desirable. Statistical evidence may provide guidance showing general trends in sentencing in the sense that a broad range may be discerned. As was noted in the intra-office advice to the Director of Public Prosecutions, historically, single counts of sexual intercourse with a young person have resulted in approximately 60 per cent of non-custodial sentences, with a sentence of over six months' imprisonment being rare for the remainder, except where there has been a severe breach of trust. Comparison between individual cases is at the least not likely to be productive, and may be very misleading if not dangerous, but it may be of some benefit if there is a high degree of similarity and the sentences fall within the established broad range. More helpfully, the comments made may reveal the relevant factors which should guide the exercise.

There is another case which has come before this Court and which involved an under age female prostitute, which may serve to put this present case in some perspective, and to provide guidance as to relevant factors. In DRW, 11 December 2006, a 47 year old was sentenced to five months' imprisonment on two counts of sexual intercourse with a young person, that person being a 14 year old female prostitute whose age was known to the accused who was a teacher. The sentencing judge said that the sentence would not be as severe as it would be in some cases having regard to the certain loss of registration, inability to continue with his profession, loss of reputation, lack of prior convictions "and the fact that he was not the sole or initial corrupter of the girl". There is also the case of JB, 10 May 2007, in which the crime was maintaining a sexual relationship with a young person. The female complainant was a little over 16 when the 53 year old accused had a sexual relationship with her of two months' duration. The same sentencing judge noted that the female had had substantial sexual experience and had worked as a prostitute some time before "so it cannot be said that he corrupted her". The accused was the girl's carer and in those circumstances of a breach of trust, an immediate imprisonment of six months was seen as necessary. Both the fact that the accused would not be able to work as a carer again, and that the accused had a previous conviction of considerable age for indecent assault, were noted. There is a further case involving a 14 year old female prostitute, also from May 2007, in which the accused was sentenced to 18 months' imprisonment, but there is little comparison because of the number and nature of the charges involved, including supplying narcotics to which the girl developed an addiction, and also living off the earnings of prostitution. The crime of production of child exploitation material is a very serious crime, but the facts and circumstances vary markedly across the few cases which have come before this Court thus far.

I will now deal with the particular factors which I see to be relevant in this case. It must of course be accepted that the exploitation and manipulation of the complainant by her mother and her mother's friend was outrageous and deplorable in the extreme. I have noted their fate. I am dealing with Mr Martin's criminal conduct at his home on one particular evening, and with his personal circumstances as they have been outlined. The expert medical evidence unequivocally establishes a mental disorder caused by the medication. This is not a case of use of illicit drugs, nor of the abuse of prescribed medication, and so not a case of an addiction or conduct leading to the commission of crimes in a way which cannot be taken into account as a mitigating factor: see R v Henry (1999) 46 NSWLR 346 at 385. What Mr Martin suffered was really an illness, and I am in no doubt that this illness must be treated as a mitigating factor. The Crown does not suggest otherwise. Where persons suffer from a psychiatric or psychological illness have a reduced capacity for choice and to order their conduct, then their capacity for full moral reasoning and judgment is impaired, and this should be reflected in sentencing: see Tsiaras v R [1996] 1 VR 398 at 400. On that basis, whilst the defendant's strict legal responsibility may not be reduced, his moral culpability is less, and he should be punished accordingly. This affects the punishment that is just in all the circumstances, and means that the person may not be an appropriate vehicle for giving expression to the factor of general deterrence. Highly individualised approaches are called for in these circumstances.

In this case there is also Mr Martin's underlying ill-health. Ill-health, even when serious, does not of course create an immunity from imprisonment or onerous punishment. But an offender's health is always a relevant factor, and it will tend to mitigate where it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or where there is a serious risk that imprisonment will gravely adversely affect the person's health: Smith v R (1987) 44 SASR 576. In this case, Mr Martin was required to go to Melbourne for the neurosurgery, he needs to have continued follow-up treatment there, and I am told that when his liberty is available to him, he will in all likelihood relocate.

In summary, I proceed on the basis of the following findings and factors:

1 The complainant was an especially vulnerable young person and gravely exploited by others.

2 There is wide disparity of age between the defendant and the complainant, although there is no suggestion that Mr Martin was at any time seeking to have sex with underage persons.

3 It is not suggested that Mr Martin knew her actual age or believed it to be as it was.

4 The number of photographs taken is large, and although there was no intention to distribute or show them, there was the prospect that, kept as they were, they might fall into the wrong hands.

5 The majority of photographs are at the lower end of the scale of seriousness of content.

6 The defendant was not the initial corrupter, but would have, although in a small way, contributed to or furthered that corruption. However, unlike what is unfortunately often the case, the production of the photographs did not introduce the complainant to the conduct recorded.

7 The commission of the crimes is directly connected to what was effectively a mental illness, caused by medication prescribed for a serious physical condition. But for the medication, he would not have been engaging the services of sex workers and would have had no contact with the complainant.

8 Although he ought to have known that the complainant was under 17 at the time of the commission of the crimes, his sexual inhibitions were markedly lessened by the medication, and his capacity to make proper judgments adversely affected.

9 Mr Martin fully co-operated with police and was forthright in his interview; in the event that he had refused to speak to police, his prosecution may, at the least, have proved very difficult.

10 I accept that Mr Martin's reputation has undoubtedly been irremediably harmed, if not destroyed, irrespective of the revelation of the reasons underlying his use of sex workers, and his consequent engagement of the complainant's services.

11 I am satisfied that there is no likelihood of re-offending.

All of these things have had to be balanced out. In my view, the entire conduct, viewed objectively, does call for imprisonment. Essentially this relates to the vulnerability of the complainant and her obvious circumstances, what ought to have been known of her apparent age, the sexual acts, and the many photographs taken. The question which has caused me much difficulty is the extent to which Mr Martin should immediately serve the appropriate term. Counsel for Mr Martin submitted that a sentence not involving immediate imprisonment is appropriate. I record the fact that the Crown did not, as it is entitled to do under s80 of the Sentencing Act, seek in this case to make any submissions about the appropriateness of any kind of sentence, or make any recommendation as to the kind of sentence which should be imposed. Mr Martin has been in custody since 22 November last.

In the balancing exercise, I think the dominant feature is, in simple terms, the fact that there is a direct causal link between the medication prescribed for Mr Martin's Parkinson's disease and the offending. On all of the material, I am satisfied that, but for that medication, he would not be facing sentence for these crimes. A correct application of principles does not, in my view, require Mr Martin to spend any further time in custody, at least immediately. Mr Martin you are sentenced to 10 months' imprisonment to commence on 22 November 2011, the execution of the balance of which is suspended on condition that you commit no offence punishable by imprisonment for a period of two years.

I am not satisfied that you pose a risk within the meaning of the Community Protection (Offender Reporting) Act, and I make no order. I do order the forfeiture of the photographs which make up trial exhibit P6.