Sentence: Total effective sentence 9 years 6 months; non-parole period 5 years 8 months
[2]
Lucas Kavanagh,[1] you were found guilty by a jury of 12 of sexual penetration of a stepchild, attempted sexual penetration of a stepchild, five charges of sexual assault of a child under the age of 16, and two charges of sexual activity in the presence of a child under 16, all occurring between 2 November 2019 and 13 November 2022.
[3]
The basis for these verdicts is set out in the summary of prosecution opening for trial dated 20 September 2024.
In short, at the time of the offences, you were in a relationship with the victim's mother, GL. The victim, GH, was then aged between 12 and 15 years.
On a number of occasions, between 2 November 2019 and 13 November 2022, while showering with GH, you penetrated her vagina with your finger (Charge 1, sexual penetration of a stepchild, course of conduct).
During this same period while showering, you also directed her to masturbate your penis, which she did (Charge 3, sexual assault of a child under 16, course of conduct.
On 4 November 2022, you and GH went to Tomahawk Hut near Mansfield to collect firewood. That night, you went to sleep together in a double swag in the small shack there. During the night you woke GH saying things to her, touching her and asking her to let you touch her. She refused, but you persisted. You then inserted your finger into her vagina (Charge 1, sexual penetration of a stepchild, course of conduct).
Soon after 2 February 20, while in the shower at home with her, you showed her a pornographic video on your phone depicting a woman digitally penetrating herself (Charge 4, sexual activity in the presence of a child under 16).
Sometime in 2021, GH brought you a coffee while you were in bed and you grabbed her arm and got her to sit on the bed and touched her breasts over her clothing (Charge 5, sexual assault of a child under the age of 16).
GH told you to stop, but you did not. You then took off her pants and underwear and got on top of her. You tried to put your penis in her vagina. It hurt her and she told you to stop, but you said 'It'll be fine'. She started crying and then you stopped (Charge 6, attempted sexual penetration of a stepchild).
At about 5pm on 13 November 2022, GH was showering at home. You got into the shower with her and started touching her. She told you to stop, but you did not. You touched her breasts (Charge 8, sexual assault of a child under 16), her buttocks (Charge 9, sexual assault of a child under 16), and the outside of her vagina (Charge 10, sexual assault of a child under 16). You masturbated yourself while in the shower with her (Charge 11, sexual activity in the presence of a child under 16).
GH provided a victim impact statement (Exhibit A), in which she describes your conduct shattering her sense of safety and ability to trust those around her. She often withdraws from others to protect herself because of what you did, which has undermined her ability to maintain positive relationships. She struggles with sadness, anger, and confusion, amongst other things. I accept both on the basis of what she said in her victim impact statement, but generally, that it is presumed that harm is the result of sexual offending against a child.
[4]
On 24 November 2022, you attended Knox police station by arrangement, you were cooperative, and you were interviewed. You denied any sexual offending against GH and denied the specific allegations she had made.
You were granted bail immediately and you remained on bail until 28 July 2025, when you were remanded following the delivery of the jury's verdicts.
[5]
You were aged between 27 and 30 at the time of the offending and you are now 33.
You report having had a good childhood, free of trauma and violence. You attended school until Year 9, where you were diagnosed with attention deficit hyperactivity disorder and a learning disability, although no specific issue of relevance to this matter was raised on any expert material before me.
You've worked consistently as a construction labourer since you were 20. You have also performed voluntary work in the community, including assisting the SES as a volunteer when needed.
You commenced a relationship with GL, the victim's mother, when you were 18. You took on a parental role towards GH, her child from a previous relationship. You also have one child with GL who is now 13, whom you have continued access and seen under supervision, following the reporting of these events.
You enjoy a close relationship with your family, particularly your mother, your brother, one of your sisters, and adopted sister.
Many family members and friends continue to support you, as demonstrated by their attendance at court and the numerous character references that I have received and read (Exhibit 1).
Those references describe you as a selfless, caring, and generous adult. They also demonstrate that you are significantly respected by your peers.
Consistently, you have no criminal history, and I note that while on remand in custody, you have worked at the prison's factory doing metal, timber and assembly work. You have also completed an OHS course and you have enrolled in other programs.
[6]
The maximum penalty for Charge 1 is 25 years imprisonment. For Charge 6, the attempt, it is 20 years. For Charges 3, 4, 8, 9, 10 and 11, it is 10 years each.
Charge 1 is a Category 1 offence under the Sentencing Act because GH was under 18 at the time, meaning that I must sentence you to a term of imprisonment which was not disputed.
Charge 1 also attracts a standard sentence of 10 years and Charges 3, 4, 5, 8, 9, 10 and 11, each attract a standard sentence of four years each. I will take this into account, alongside all other sentencing factors relevant to each charge.
As required for standard sentence cases, I must also fix a non-parole period of at least 60 per cent of the total sentence, unless it's in the interest of justice not to do so.
Once you are sentenced to a term of imprisonment on Charge 1, you are then to be sentenced as a serious sexual offender on Charges 3, 4, 5, 6, 8, 9, 10 and 11, in accordance with Part 2A of the Sentencing Act. To that end, I must regard protection of the community as the principal sentencing purpose for those offences and make orders for concurrency that are consistent with the purposes of that part, while avoiding a crushing sentence.
While Part 2A permits the imposition of a sentence that is disproportionate to your offending, the Director did not submit that this was necessary and I do not intend to do so.
Charges 1 and 3 are course of conduct charges, meaning that each charge involves more than one incident of that offence. While I am not required to determine the precise number of incidents involved in this case, I am required to determine the nature and extent of the course of conduct, based on what the evidence reveals beyond reasonable doubt. The sentence in those circumstances will be higher than for a charge relating to a single incident.
For the purposes of sentencing on Charge 1, I find beyond reasonable doubt that you penetrated GH's vagina on at least three occasions, but it is not clear on how many more. I have taken into account that these occasions occurred over a period of about three years, which makes it a charge which is more serious than if it occurred over a shorter period.
For the purpose of sentencing on Charge 3, I find that the sexual assault happened on two or more occasions over a period of two to three years.
Each incident beyond the first, of course, represents a repeat offence against the same child, which makes each one increasingly grave.
Your offending in Charge 1 was of a high degree of gravity. Sexual penetration of a stepchild erodes the safety and security to which a child is entitled in their family life. And it is a perversion of your expected role as a protector of the children in your care.
As a stepfather and being significantly older than GH, you enjoyed the trust of others in the family to have access and a degree of control over the children. Your offending betrayed that trust. You further misused that position when you told GH not to tell anyone about what you were doing with her, as well as offending after she told you that she did not want you to touch her in those ways. That breach of trust is inherent in the offences in Charge 1, which is why all such offences of that nature attract high sentences.
The breach is nevertheless relevant to each of the other charges and makes them more serious examples of those offences, compared to offences that do not involve a child of the family.
In comparison to other sexual offences against children, I note that you did not use other forms of physical violence, threats, intimidation or humiliation beyond what the offence necessarily includes, and each incident, taken on its own, was of a short duration. Some of the offences occurred in a single same incident.
Charge 1 did not involve penetration that placed GH at risk of pregnancy or sexually transmitted infection. Of course, the attempt in Charge 6 is more serious because, if the offence was completed, it would have done so.
In all these circumstances, I find Charges 1 and 3 to be moderately grave examples of the offences charged and the remainder of the standard sentence offences to be somewhat lower than midrange.
I find your personal blameworthiness for each offence to be high. You were solely responsible for what occurred and it was not suggested that there was any extenuating circumstance. You exploited the opportunities you had to commit the offences against a vulnerable child.
Others attempted to engage in similar conduct against children must be deterred by the sentence I impose on you and by that sentence, the denunciation of what you did must be clear. It must also impose just punishment on you.
While you have no criminal history, given the repeated and protracted nature of your offending, I have also given weight to the need to deter you specifically from further similar conduct.
You are not to be punished for running a trial, but your sentence is not therefore reduced because of a guilty plea or indications of remorse. I find you to have, nevertheless, reasonable prospects of rehabilitation.
You have no prior convictions and maintain significant family support from both members of your family and friends, both of which bolster your prospects. I also accept that a lack of remorse is not a barrier to rehabilitation.
Having taken all these matters into account, I have reviewed the overall sentence and the orders for concurrency with the aim of ensuring the total sentence reflects the totality of what you did.
The prosecutor referred me to cases of Tullipan,[2]Murphy,[3]Duesbery,[4]Henderson,[5]Talbot,[6] and Bishop,[7] and I have had regard to the principles applied in them. Of course, every sentence will turn on its own facts.
I sentence you as follows. If you would stand up, please.
[7]
On Charge 1, sexual penetration of a stepchild under 16, 7 years imprisonment.
[8]
On Charge 3, sexual assault of a child under 16, 3 years.
[9]
On Charge 4, sexual activity in the presence of a child under 16, 2 years.
[10]
On Charge 5, sexual assault of a child under 16, 2 years.
[11]
On Charge 6, attempted sexual penetration of a child under 16, 5 years.
[12]
On Charge 8, sexual assault of a child under 16, 2 years.
[13]
Charge 11, sexual activity in the presence of a child under 16, 2 years imprisonment.
[14]
Two years of the sentence on Charge 3, four years of the sentence on Charge 6 and eighteen months of the sentence on Charge 8 and the entirety of the sentence on the other charges, are to be served concurrently with the sentence on Charge 1 and with each other.
An alternative way of saying that is that one year of the sentence on Charge 3, one year of the sentence on Charge 6 and six months of the sentence on Charge 8, are to be served cumulatively upon each other and upon the sentence on Charge 1.
The total effective sentence is 9 years 6 months.
I fix a non-parole period of 5 years 8 months.
I declare that you have served 116 days and direct that this be reckoned as a period already served under the sentence.
You are sentenced on Charges 3, 4, 5, 6, 8, 9, 10 and 11 as a serious sexual offender under the Act.
Under the Sex Offender Registration Act 2004, Charges 1 and 6 are Class 1 offences and Charges 3, 4, 5, 8, 9, 10 and 11 are Class 2 offences. Upon being sentenced for those offences, you become a registerable offender and in accordance with s34 of the Act, you must comply with reporting obligations for life.
I note that after 15 years of reporting, you may apply to the Supreme Court for a suspension of reporting which may be granted in some circumstances.