"Has" v The State of Western Australia [2005] WASCA 29

"Has" v The State of Western Australia [2005] WASCA 29 - WASCA 2005 case summary — Zoe

[44]

"... Although accepting responsibility for his offending behaviour overall, [the applicant] was adamant that he and the victim were in love with each other. Claiming the offences happened by mutual consent [the applicant] was at pains to point out that he did not wish to blame the victim in any way and that she had already suffered enough by him being incarcerated. [The applicant] claimed the relationship between the pair was not driven by sexual interest on his part but rather that under intense pressure from the victim [the applicant] agreed to engage in sexual contact with her.

Denying any sexual attraction to young girls it is evident that [the applicant] does not see the victim as a child but rather a person he fell in love with whose age was below the legal age of consent and in the context of a familial relationship. [The applicant] clearly holds a grossly distorted view of his offence as he failed to recognise that despite his claim of having fallen in love with the child such behaviour is not typical of adult men. [the applicant] to some extent justified his offence by stating that the victim did not look 13 and was more mature, much bigger and more developed than a typical 13 year old. This comment also fails to take into account the position of trust and responsibility [the applicant] assumed in taking on a parental role.

[The applicant] does not see himself as a sex offender but rather as an individual who fell in love with someone who was too young. A lack of insight regarding the child's emotional development and her capacity to give informed consent to such contact is evident even though [the applicant] impresses as having an appreciation that sexual contact with children is inappropriate. [The applicant] appears to have developed a sexual attraction to the victim several months prior to commencing a relationship with her mother. Stating that he had known mother and daughter for 2 years [the applicant] stated that they moved away but he renewed contact with them several months prior to commencing a relationship with the child's mother. Despite an awareness that he was developing strong romantic emotions for the child [the applicant] proceeded to embark on a relationship with the child's mother. However, he claimed that they did not engage in sexual intercourse as he felt as though he was being unfaithful to the child. Grooming of the mother to facilitate his contact with the child is indicated and suggests a lack of regard for the mother's feelings towards him.

In a relationship for 6 months before marrying [the applicant] claimed his wife-to-be stumbled in on him and the victim having sexual intercourse the day before their wedding. Claiming his fiance was upset but hopeful that he would curb his attraction to her daughter [the applicant] stated that the wedding went ahead but that the marriage was not consummated for many months as he did not want to be unfaithful to the victim. However, he claims his wife became increasingly concerned about his ongoing strong feelings for the child, and in frustration she informed the child's father who reported him to the police. [The applicant] expressed disappointment that his wife did not speak with him first but that he can appreciate that she was frustrated by the lack of sexual contact and acted impulsively in telling the child's father. [The applicant] denied that he became involved with his wife to facilitate his access to the victim however this is highly questionable given his disclosure that he formed strong romantic feelings for the victim prior to this relationship. Furthermore, given he claims he only had sexual intercourse with his wife on one occasion throughout their relationship and marriage it would appear that [the applicant's] attraction to his stepdaughter surpassed his interest in her mother and that he used the mother as a way of gaining access to her daughter. He in fact stated 'I loved [mother] but I was in love with [victim]' ...

[The applicant] does not impress as being a sexual predator, however his attraction to the victim is entrenched and he lacks insight about how he came to develop such strong feelings given the victim is a child and one he had parental responsibility for. Despite expressing disgust for men who offend against children [the applicant] does not view himself in the same light. [The applicant's] fixed mindset suggests poor prognosis for treatment as he refuses to consider that he has issues to address with respect to his offending behaviour. ..."

[47]

"[The applicant's] grossly distorted view about his offending behaviour impresses as the most outstanding treatment issue. Furthermore, in depth exploration about how such an attraction could have developed is indicated especially in light of [the applicant's] claim that he never considered the child as his step daughter and that he could not love her in this capacity. It seems [the applicant] totally disregarded the fact that the victim was a child irrespective of whether she looked older. With respect to sex offender treatment it appears that [the applicant's] offending behaviour occurred in the context of gratifying both sexual needs and emotional needs. This is despite his claim that he did not harbour any sexual interest in the victim. While acting on sexual urges he was also satisfying a need for intimacy and emotional closeness with the victim under the pretext of having a relationship and subsequently marrying her mother. This appears to have been a calculated way of gaining ongoing access to the victim. A lack of empathy for his wife's feelings is indicated in as much as [the applicant] allowed his wedding to go ahead even though the child's mother apparently caught them in sexual activity the day before the wedding. It would appear that [the applicant] took advantage of his wife's vulnerability and dependence on him to facilitate his offending. This would need to be explored in treatment in order to gain insight about his behaviour as currently there is little to suggest that [the applicant] thought of anyone but himself. [The applicant] lacks insight regarding his behaviour and although cognisant of the fact that he abused his position of trust and parental responsibility he does not appear to fully understand the impact such behaviour may have had on the victim and his wife. His marriage appears to have been one of convenience however [the applicant] does not have any insight about this.

Unfortunately [the applicant's] treatment issues may not be addressed as he expressed adamant refusal to participate in a sex offender treatment programme as he does not consider himself to be a sex offender. [The applicant] stated that he would rather forgo parole if sentenced to imprisonment rather than engage in such a programme with men whose behaviour he is repulsed by. This attitude towards treatment reflects the distorted view held by [the applicant] regarding his behaviour and the fact that he sets himself apart from other men who commit sexual offences against children. This is somewhat concerning and more so given his complacent attitude that he will never engage in this behaviour again, all the while confirming his ongoing romantic love for the child".

[58]

"... She was 13 years of age and you were in a position of her stepfather. There is some suggestion in the reports that you believe yourself to be in love with this child and that you also believe that she was in love with you.

That in itself is an indication that you need help given that you're 48 and she's 13. Even if we put that aside for the moment and we say, 'All right' - the fact is, she's only 13 years of age. Even if we put that aside for the moment and we say, 'All right'. The fact is she's only 13 years of age and she was entitled to your protection, your complete and utter protection.

Even if it were the case - and I'm not suggesting that it was but even if it were the case that this child had a crush on you, when a teenage girl gets a crush on a man of 48 he doesn't take advantage of it. But I'm not saying, and I stress, I'm not for one minute saying that she did have a crush on you, I'm simply saying that this is beyond the bounds, and the reports are extremely disturbing and really there's nothing much that anybody needs to say about it.

You know that what you have done is wrong and that's why you have pleaded guilty on the fast-track system and the indication of remorse that flows from that does entitle you to a discount in your sentence and the reason for that is, as I have already expressed this morning, it's not a matter of saying, 'Well, I'm sorry' and we then say, 'Well, that's good, he's remorseful and he can have a reduction in his sentence.' It's when you do something concrete about your remorse and what you have done here is that you have pleaded guilty and so that the child is saved the trouble of going through, and the trauma of going through a trial.

You have also pleaded guilty on the fast-track system. Again, the community don't understand the significance of that, but we have a very high rate of acquittals in sexual offences and the reason that we have such a high rate of acquittals in sexual offences is because it's usually just one person's word against another, in that, and the juries just, in the end, don't know who to believe, so there is a high rate of acquittal.

People who have a fast-track plea of guilty from their - from the perpetrator often become angry that these things are taken into account but what they should do is compare notes with the people who don't have fast-track pleas of guilty or any pleas of guilty and they would see the difference between what you have done and what has been done by people who don't plead guilty.

This was the situation where - and I don't want to criticise the mother. I just don't know what she was trying to do; whether she thought she could deal with this in some other way. But the whole situation is designed to make this - even though it's not intentional, but children are not small adults. They don't think like adults and she would be taking a lot of the blame for this on herself and it's obvious from this letter that that's what she is doing. That's what makes this little letter so sad, really. It really is a very sad little letter.

Anyway, we can't do any more about that. We have got to take into account your plea of guilty, your fast-track plea, your remorse, but at the same time the seriousness of what you have done, ..." (Emphasis added).

At a glance

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Judgment (110 paragraphs)

"Has" v The State of Western Australia [2005] WASCA 29 (1 March 2005)

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Legislation Cited (3)

Cases Cited (5)