A Tasmanian man who sexually abused a drunk and vulnerable 16-year-old girl has avoided jail in what a judge has described as an unusual case.
The man was drinking with the girl and her friends at a park in 2020 after buying them whiskey. He told her she was cute despite her indicating his advances were not welcome.
He then touched her on the upper thigh and shoulder. She pushed his hand away several times when he tried to touch her vagina.
According to sentencing comments published this week, the next thing she remembers is lying on the grass with the man trying to kiss her.
"She recalls being really drunk. She told you she wanted to go home, and you said you would take her," Supreme Court Justice Gregory Geason wrote.
The man took her to where he was staying where she remembers throwing up and collapsing on his bed. He performed sex acts on her and had sex with her.
"During that act she felt pain to her left collarbone and she tried to push you off," Justice Geason wrote.
"You placed both her hands above her head and held them in that position and continued."
The man pleaded guilty to indecently dealing with a young person and two charges of penetrative sexual abuse of that young person.
When questioned by police after the girl reported the incident, the man said he thought she was 17, which is the age of consent in Tasmania.
He told police the girl was "conscious and willing" and that she was affected by alcohol, but not so drunk as to require assistance to walk.
Justice Geason sentenced the man to six months' jail with the entire term suspended for three years.
He made a 12-month community supervision order and told the man to attend an addiction program for his excessive drinking.
"Whilst an absence of consent is not an element of the crimes alleged, that should not lead you to underestimate the harm you have caused your victim," Justice Geason wrote.
"She was drunk, young and vulnerable."
Justice Geason said the man was entitled credit for pleading guilty and sparing the girl from giving evidence.
He also said there was an indication in a psychiatrist's report that the man had developed insight into his offending.
"This is an unusual case and a difficult sentencing exercise. Plainly it was a grave error of judgement by someone who has not previously transgressed in this way," Justice Geason wrote.
"I cannot say you took advantage of your victim, because it is not put to me that that was so, and if she was incapable of consenting, the charge would reflect that, but it does not."
Australian Associated Press
