Bester v Barnes
[2016] TASSC 19
•5 April 2016
[2016] TASSC 19
COURT: SUPREME COURT OF TASMANIA
CITATION: Bester v Barnes [2016] TASSC 19
PARTIES: BESTER, Nicolaas Ockert
v
BARNES, Alisha
FILE NO: 114/2016
DELIVERED ON: 5 April 2016
DELIVERED AT: Hobart
HEARING DATE: 24 March 2016
JUDGMENT OF: Blow CJ
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether sentence manifestly excessive – Making child exploitation material – Facebook comment describing illegal sexual activity with schoolgirl.
Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), s 72A.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: P Dixon, S Thompson
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 19
Number of paragraphs: 25
Serial No 19/2016
File No 114/2016
NICOLAAS OCKERT BESTER v ALISHA BARNES
REASONS FOR JUDGMENT BLOW CJ
5 April 2016
This is a motion for the review of a sentencing order made by a magistrate, Ms C Rheinberger. She sentenced the applicant, Nicolaas Bester, to 4 months' imprisonment after he pleaded guilty to a charge of making child exploitation material contrary to s 72A of the Classification (Publications, Films and Computer Games) Enforcement Act 1995. He contends that the sentence was manifestly excessive.
For many years the applicant was a school teacher. Between June 2010 and December 2010, when he was 58 years old, he maintained a sexual relationship with one of his Grade 10 students, who was 15 years old. She ended the relationship and, in April 2011, disclosed details of it to the school authorities and her parents. The applicant was prosecuted, pleaded guilty, was sentenced to 2 years 10 months' imprisonment in August 2011, was released on parole in March 2013, and completed his parole in May 2014. That sentence related to two charges – a charge of maintaining a sexual relationship with a young person under the age of 17 years, and a charge of possessing child exploitation material. Police officers searched his home after his offending came to light, and found 28 child exploitation images on his computer.
In late February 2015 the applicant was involved in an on-line Facebook discussion about a political issue. The participants posted comments on a young woman's Facebook page. One of the other participants, a young man who may not have been happy with the applicant's comments, posted a link to a newspaper story from 2011 which contained a headline, "Hobart teacher admits to affair with student", a photo of the applicant, and his name. The applicant and the young man exchanged comments. In the course of that exchange, the applicant posted the following comment:
"Zip up your testicles in the feminist handbag, you sorry little prick. Judging from the emails and tweets I've received, the majority of men in Australia envy me. I was 59. She was 15." [Offensive words omitted.]
The writing of that message constituted the offence for which the learned magistrate sentenced the applicant to 4 months' imprisonment. By creating that message, he contravened s 72A(a) of the Classification (Publications, Films and Computer Games) Enforcement Act. That provision reads as follows:
"A person must not —
(a) make or reproduce child exploitation material; or
(b) … or
(c) ....
Penalty:
Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 3 years, or both."
"Child exploitation material" is defined in s 71 of that Act as follows:
child exploitation material means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years —
(a) engaged in sexual activity; or
(b) in a sexual context; or
(c) as the subject of torture, cruelty or abuse (whether or not in a sexual context)."
The words that the applicant wrote constituted material that described his former student, a person under the age of 18 years, in relation to their sexual activity, in a way that a reasonable person would regard as being offensive. His comment therefore constituted "child exploitation material" as defined.
The applicant happened to post his offensive comment on the Facebook page of a person with over 700 Facebook friends. On 9 March 2015, the Mercury newspaper reported the applicant's comments in part on its front page. A follow-up article appeared on its front page the following day. Neither article named the applicant, but both articles remained accessible on-line for a long time. The first of the two articles came to the attention of the young woman who was the subject of the applicant's offensive comments. She was a long way from Hobart, but the Mercury article was posted on her Facebook page, and she was terribly upset by it.
The learned magistrate was provided with the comments made by Wood J when she sentenced the applicant to imprisonment in 2011. They contain significant information about the student with whom he had the sexual relationship. She had had serious difficulties with anorexia. While the sexual relationship was continuing, she felt trapped and isolated from support. She had problems with depression, sleeplessness and self-harming. The relationship caused damage to many aspects of her life, including her sense of self-worth and her relationships with her family and her peers.
For the purpose of the proceedings before the learned magistrate, the victim's mother provided two victim impact statements. The first, dated 25 August 2015, dealt with the impact of the information posted on Facebook. The mother said that her daughter had been "significantly re-traumatised" and gave details of the deterioration in her mental health. The mother took advice from her daughter's psychologist, and flew to visit her on short notice. She said that her daughter was still suffering nightmares and anxieties; that the intensity of her suffering had been significantly exacerbated by the Facebook conversation; and that she would never return to Hobart to live. The second victim impact statement was dated 5 December 2015. At that stage the mother said that her daughter was "beginning to return to positive growth in her recovery". Both of the mother's statements contained comments about the applicant's behaviour and his attitude to what he had done. Those comments were relevant to the extent that they explained or illuminated the psychological impact of the applicant's offending, in 2010 and in the Facebook conversation, upon her daughter.
The applicant was 63 years old when the learned magistrate sentenced him. It appears that he led a blameless and productive life until 2010. He has no significant convictions other than those I have mentioned. He held a senior teaching position, which he lost as a result of his offending. He was born in South Africa, served as a lieutenant in the South African army, studied in the United Kingdom, and came to Hobart in 1987. He was married, but his marriage came to an end in 2011 as a result of his offending. He has adult children. They will not talk to him because of his offending, nor will many of his former friends. When sentenced he was living alone in rental accommodation, studying chemistry as a PhD candidate, and receiving a small income in that capacity.
On the night of the Facebook conversation he had consumed about half a bottle of red wine, and became angry as a result of the young man posting details of his convictions as a sex offender. He posted the offending message in anger, without foreseeing the possible consequences. He did not intend, or even foresee, that his offensive message or any part of it might come to the attention of the victim whom he wrote about.
Obviously, because of the very nature of a Facebook message, the writer or sender can have no control as to where the message goes and who might read it, or part of it. There was always a possibility that somehow the message might come to the attention of the person whom the applicant wrote about. The consequences of an offence are always relevant to the sentencing of the offender. In this case there were terrible psychological consequences for an individual to whom the applicant had previously caused a great deal of psychological harm. The learned magistrate was required to take those consequences into account, and also to take into account that they were neither intended nor foreseen by the applicant.
In my view it was not particularly significant that the applicant had been drinking, had become angry, and acted without thinking of the possible consequences. Many people commit crimes or offences in such circumstances. The law simply does not excuse them.
On the morning after the Facebook conversation, the applicant regretted what he had written. He went back and deleted his comments. He posted an apology for his conduct on his own Facebook page. That was before the publication of the first Mercury article, and before the police became involved.
After the publicity in the Mercury, the applicant published a second apology on his own Facebook page. It said this:
"About ten days ago I was involved in a thread where I allowed myself to lose my temper. Loneliness and being drunk are not a good combination with Facebook. I deeply regret my intemperate remarks. They were simply not true and in the context of the thread I intended to provoke – not a good idea, I'm truly sorry."
The learned magistrate was told that the first apology was in similar terms, and that the applicant said in the first apology that he was not a predator or a sex fiend.
The applicant was represented by counsel in the proceedings before the learned magistrate. His counsel told her Honour that he was deeply remorseful for posting the offending Facebook comment. She said he accepted that his post was in extremely poor taste, and that he took responsibility for his conduct. She said that he had maintained his remorse since posting his apologies, that he realised the significance of his comment, and that he regrets that it came to light that the comment was made. She told the learned magistrate that he received counselling whilst on parole, including counselling in respect of sexual offending.
The applicant was interviewed by police officers on 11 March 2015, the day after the second Mercury article. He was co-operative. He attended the Hobart Police Station by appointment, took part in a formal recorded interview, and admitted posting the comment in question. He was not required to appear in the Magistrates Court until 31 July. He pleaded guilty on his fifth appearance, on 4 January. As a result of pleading guilty, he saved the State the cost and inconvenience of a defended hearing. That is a matter that counts in his favour, to some degree. However the evidence against him was so strong that a conviction was practically inevitable. Also, this was not a case where there was ever any chance that the victim of his original offending might have had to give evidence. When a plea of guilty results in a victim of sexual crimes being spared the ordeal of giving evidence, a significant sentencing discount can often be appropriate, but this was not such a case. The applicant originally pleaded not guilty, but he did so on the advice of a lawyer who considered that there was a legal question that needed to be considered. I therefore do not think it can be said that he ought reasonably to have pleaded guilty earlier than he did.
Counsel for the applicant provided the learned magistrate with a copy of a report by a psychiatrist that was written for the purpose of the sentencing proceedings in 2011. The psychiatrist was not able to provide a clear psychiatric diagnosis. He reported that the applicant had had problems with depression and excessive drinking before his offending came to light. Thereafter, the applicant lost his career, his marriage, his home, his relationships with his children, and most of his friendships, and had problems with anxiety, sleeplessness and distress. His mental state deteriorated to such an extent that he had to be admitted to hospital. He had been discharged twice, but had had to return both times.
The applicant was not represented by counsel at the hearing of this motion to review. He told me a number of things that the learned magistrate had not been told. He told me that the young woman who controlled the Facebook page on which he posted the comments in question was a legal practitioner, and argued that it was her responsibility to delete any such material. He told me that the young man who posted the link to the 2011 newspaper report about him was also a legal practitioner, and criticised his conduct. He told me that he had written two books whilst in prison, that one of them had sold about 2,500 copies, that he had since written a third book, and that it was in the hands of a publisher in the USA. My task in these proceedings is to review the sentence imposed by the learned magistrate, and to consider whether it is manifestly excessive, having regard to the information provided to her Honour as to the circumstances of the offence and the offender. In making that assessment, I must ignore any mitigatory information that was not made available to her Honour. Further, the information that the two individuals happened to be legal practitioners is of no significance at all in relation to sentencing. What does count is that the consequences of the offence were neither intended nor foreseen by the applicant. The fact that he used his time doing something that was apparently constructive – writing books – would probably not have made any significant difference to the applicant's sentence if the learned magistrate had known about it.
This is an unusual sort of case. Most cases concerning the production of child exploitation material that come before Australian courts concern photos and movies of sexually exploited children. Sometimes there are cases about the writing of short stories about the sexual and/or physical abuse of children. I am not aware of any comparable case that might be of any assistance to me in reviewing the sentence imposed by the learned magistrate. However it is very significant that the section under which the applicant was charged provides for penalties of up to 3 years' imprisonment, and that it does so because of the terrible effects that the making of child exploitation material can have on exploited children. This is a case in which there were such consequences.
The offence in question is committed when a person writes something offensive about a person under the age of 18 years engaging in sexual activity. It is an offence that is committed by making or reproducing offensive material, not by publishing it. It could be committed by a person who writes something offensive on a piece of paper which is never shown to anybody. It can be committed simply by creating a piece of prose. But this is a particularly bad example of the crime because (a) the offensive material was created by means of the applicant writing on another person's Facebook page; (b) the material concerned a real person; (c) that individual was vulnerable as a result of sexual abuse as a 15-year-old and pre-existing mental health problems; and (d) the offensive material came to her attention, exacerbated her mental health problems, and hindered her recovery.
A number of common mitigating factors were absent in this case. The applicant was not a youthful offender. He was not a person of low intelligence. He was not a first offender.
But for the impact of the applicant's words on the young woman whom he wrote about, it might have been appropriate for the learned magistrate not to send him to prison. However, in all the circumstances, I think that a sentence of imprisonment was the only appropriate penalty in this case. Having regard to the impact on the victim, the applicant's prior conviction for maintaining a sexual relationship with her, and all the relevant circumstances, I consider that a sentence of 4 months' imprisonment was not manifestly excessive. I have therefore decided to dismiss the motion to review.
I was informed that some of the words written by the applicant were not published by the Mercury and might not have come to the attention of the young woman whom he wrote about. Those words will be redacted when these reasons are made available for publication. The full version of these reasons will be made available to the parties.
0
1