Director of Public Prosecutions (Cth) v ABC (a pseudonym)
[2023] VCC 446
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
CR-21-02470
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABC (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 14 and 28 November 2022 | |
DATE OF SENTENCE: | 28 February 2023 | |
CASE MAY BE CITED AS: | DPP (Cth) v ABC (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 446 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of using a carriage service to procure a person believed to be under 16 years of age – one charge of attempting to use a carriage service for sexual activity with a person under 16 years of age – pleas of guilty
Legislation Cited: Criminal Code Act 1995, Volume 1 – s11.1; Criminal Code Act 1995, Volume 2 – s474.26(1); s474.25A; Crimes Act 1914, s16A; s16AAA; s16AAB; Sex Offenders Registration Act 2004 (Vic), s34
Cases Cited:Bahar v R (2011) 45 WAR 100; (2022) NSWCCA 117; R v Delzotto [2022] NSWCCA 117; Hurt v R [2022] ACTCA 49; Glasheen v R [2022] NSWCCA 191; Rex v Taylor [2022] NSWCCA 256; Karim v R [2013] NSWCAA 23; Hili v R [2010] 242 CLR 520; R v Finch [2022] NSWDC 578; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Markovic v R (2010) 30 VR 589; Totaan v R [2022] NSWCCA 75; Rodgerson v R [2022] VSCA 82; Gifford v R (2016) 263 A Crim R, 373; Meadows v R [2017] VSCA 290; Tector v R (2008) 186 A Crim R 133; Elias v R; Issa v R (2013) 248 CLR 483; Markarian v R (2005) 228 CLR 357
Sentence:Total effective sentence of 3 years 9 months imprisonment with a non-parole period of 2 years 3 months; Sex Offenders Registration for 15 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms K Breckweg with Ms J Swiney | Solicitor for the CDPP |
| For the Accused | Mr P Kounnas | Olinda Legal |
HIS HONOUR:
1ABC,[1] on 14 November 2022, you pleaded guilty to the following offences:
Charge 1 – that you, on 8 July 2021 at Balwyn North in Victoria, you being sixty eight years of age, used a carriage service to transmit a series of communications to the recipient 'Skyler' being someone you believed to be under sixteen years of age, with the intention of procuring the recipient to engage in sexual activity with you.
The offence of using a carriage service to provide or to procure a person believed to be under sixteen years of age is contrary to s474.26(1) of the Criminal Code Act 1995 and carries a maximum penalty of fifteen years’ imprisonment.
Charge 2 – that you, on 8 July 2021 at Balwyn North in Victoria, being sixty eight years of age, attempted to engage in sexual activity, using a carriage service, with a child, namely 'Skyler' being someone you believed to be under sixteen years of age.
The offence of attempting[2] to use a carriage service for sexual activity with a person under sixteen years of age is contrary to s11.1(1) and s474.25A of the Criminal Code Act 1995 and carries a maximum penalty of twenty years’ imprisonment. And I will just refer to one of the footnotes here, s11.1(1) of the Criminal Code Act 1995 provides that,
“A person who attempts to commit an offence, commits the offence of attempting to commit that offence. And is punishable as if the offence attempted, had been committed.”
[1]Prior to the commencement of this trial, his Honour Judge Mullaly upheld an application by the offender to allow all persons named in the trial to be referred to by a pseudonym.
[2]Section 11.1(1) of the Criminal Code Act 1995, provides that a person who attempts to commit an offence, commits the offence of attempting to commit that offence, and is punishable as if the offence attempted had been committed.
2In June 2020, a new sentencing regime was introduced into the Crimes Act 1914 ('the Act') by way of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020. Such regime applied to conduct occurring on or after 23 June 2020.
3The new sentencing regime requires a mandatory minimum head sentence be imposed when sentencing an offender for a Commonwealth sexual abuse offence, where that offence is a “serious offence” (see s16AAA of the Act) or a 'second or subsequent offence' (see s16AAB of the Act).
4
There is no issue that, in the present matter, in sentencing you in relation to
Charge 2, a mandatory minimum head sentence of five years’ imprisonment applies to the charge. As you will be convicted of an offence which is listed in the Table set out in s16AAA of the Act as a “serious” Commonwealth child sexual offence.
5I refer s16AAA of the Act, which states:
“Subject to s16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.”
Item 13 in the table, identifies the offence pursuant to s474.25A(1) of the Criminal Code and column 2 of that table sets out the period of mandatory minimum imprisonment to be five years.
6Section 16AAC of the Act, headed “Exclusions and reductions-minimum penalties” provides, pursuant to sub-s(1), that s16AAA of that Act does not apply to a person who was aged under eighteen years when the offence that the relevant provisions specifies a minimum penalty for, was committed.
7Section 16AAC(2) of the Act provides the circumstances where there may be a reduction of the minimum penalty to which I will make reference to later in these reasons.
8I also refer to the Explanatory Memorandum ('EM') (accompanying the proposed legislation – see Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) – Explanatory Memorandum, House of Representatives at paragraph [40]) – which states:
“The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of these offences and ensure that the community is protected from child sex offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children.”
9Furthermore, both charges on the Indictment are Class 2 registrable offences under the Sex Offenders Registration Act 2004 (Vic). On your conviction in respect of both offences, you will be required to comply with the reporting obligations of the Act for fifteen years (see Sex Offenders Registration Act 2004 (Vic), s34).
Circumstances of the offending
10Counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening for Plea' (exhibit 'A'). I note the following:
· You are now seventy years old and were sixty-eight years old at the time of the subject offending.
· On 8 July 2020, you used a carriage service to send a series of text-based communications to a person you believed to be under the age of sixteen, with the intention of procuring the recipient to engage in sexual activity with you (Charge 1).
· Annexed to exhibit “A”, is what has been referred to as “Annexure A”, which is accepted by both parties to be a transcript of the text-based communications between you and the recipient. When queried, I was informed by the parties that, bearing in mind there were breaks between various comments made by you and the recipient, the estimated time over which the offending in relation to Charge 1 occurred, was approximately one-and-a-half hours, including such breaks.
· Also, on 8 July 2021, later in the day, you used a carriage service to attempt to engage in sexual activity with a person under sixteen, namely by masturbating on a phone call with the recipient (Charge 2). Again, annexed to exhibit “A” is what has been referred to as “Annexure “B”, which is accepted by the parties to be the content of the conversation between you and the recipient, which lasted for approximately twenty-three minutes.
· The recipient of the communications was an Under Cover Operative ('UCO'), who was posing as a fourteen-year-old girl named “Skyler”.
· Your communications with “Skyler”, the subject of Charge 1, took place over the instant messenger application “Chatwi” and your communications with “Skyler”, the subject of Charge 2, took place over the telephone.
11The phrase 'engaging in sexual activity' defined in the dictionary attached to Volume 2 of the Criminal Code Act 1995 means:
“Without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person in the presence of another person (including via means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.”
12Although Annexures “A” and “B” must be read in their entirety, the prosecution highlight the following in relation to Charge 1:
(a) Your text-based communications with “Skyler” were on Chatwi and you initiated such communication with her using the moniker “policeman”. In particular, the communication commenced as follows:
“Offender: hi
Skyler: hi h r u
Skyler: asl
Offender: male 34 melb
Skyler: cool
Skyler: 14 n f syd
Offender: fuck really
Skyler: yeh how cum?Offender: do you have a picture (sic) here”;
(b) The prosecution submit that the conversation immediately turned sexual when you wrote:
“us irish are always hrny “
“I am so bloody horny now “
“I wish I was kissing you “;
(sic)
(c) You then wrote:
“I would love to cum talking to you on the phone”'
and then asked Skyler,
“Can I call you' and 'let me call as I rub my cock' and 'the thought of talking to a woman as I rub my cock is so horny' and 'would love to hear her slide her fingers in her wet pussy”;
(d) You then asked “Skyler” for a photo, and after you received one, you wrote:
“Oh fuck I want to kiss you and take your top off”
and later
“Oh fuck I am rubbing my cock looking at your picture”;
(e) You asked her, “how old are you” and “Skyler” responded, “im 14 rem?”, and you responded, “fuck want to see your breasts” and “iam (sic) so horny”;
(f) You and 'Skyler' discussed speaking on the phone and you asked,
'do you mind if I rub my cock when I do'.
13In relation to Charge 2, it is not disputed that you masturbated in the presence of “Skyler”, in that, by means of the technology used, “Skyler” was able to hear you while you masturbated. The prosecution highlight the following in relation to Charge 2:
(a) Immediately after the phone call commenced, you told 'Skyler' that you were masturbating:
“Offender: did you hear that? [there is an audible sound of wetness]
Skyler:yeah what’s that? Like how did you do that?
Offender:i was rubbing it
Skyler:what do you mean
Offender:i was rubbing my cock because it was so hard
Skyler:h really
Offender:yeah
Skyler:oh wow
Offender: i wish you would let me see your breast honey, id fucking rub my cock so hard and come
Skyler:ahmmmmm i am only 14 thought
Offender: yeah but i wouldn’t show anybody
Skyler:i am so scared that like at school they tell us not to send anything like that
Offender:i wouldn’t show anybody honey
Skyler:yeah
Offender: i wouldn’t want to get into trouble too
Skyler:why should you get in trouble?
Offender:because i wouldn’t do that, if you showed me, i wouldn’t like show anybody else
Skyler:yeah, are you really a policeman?
Offender:yeah
Skyler:oh, i trust you
Offender:yeah
Skyler:that’s so cool, i wish i could be a police officer when i grow up
Offender: yeah;
(sic)
(b) As the conversation continued, you repeatedly told “Skyler” that you were masturbating and made audible moaning noises. For example:
“I am just rubbing my cock so much honey it feels so good, I wish it was you doing it”,
“oh my god I am just rubbing it so hard looking at your picture I am gona (sic) cum honey”; and
“I am rubbing my cock thinking about you”;
(c) You sent an image of an erect penis that you purported to be your own and told “Skyler”:
“I am just sending a picture of my cock for you, go have a look, it’s really hard because of you…and come back and tell me.”
14After the phone call ended, you and “Skyler” recommenced speaking on the Chatwi platform and had the following conversation:
“Skyler: chat soon?
Offender: will you come back and did you get excited
Offender:I will never tell anyone about us talking
Offender:it is our chat secret as I do now want you together into trouble
Skyler:ok
Skyler:r u sure i cant like text u or something?
Offender: not on this phone honey I willet a new one just for us
Skyler:k i better go
Skyler:will u text me soon?
Offender: I will try honey and you re so pretty
Skyler:ok
Offender:di you rnipples gethard
Skyler:ur so sweetr
Offender:you are too
Offender: I hope you were not afraid of me
Skyler: i will try
Skyler:lol i was nervous but no
Skyler:cant wait for us text soon bye x
Offender: how do you feel nowo
Offender:hide my picture
Skyler: i will def
Skyler: gtg
Skyler:bye
Offender:take care honey”
(sic)
15On 16 July 2021, members of the Joint Anti Child Exploitation Team ('JACET') executed a search warrant at your home. Later, you participated in a record of interview, during which you stated that:
· Your mobile phone number is 0438 458 010. (ROI – Q36)
· You use a computer to access Chatwi. (ROI Q60)
· You probably started using it a month ago. (ROI – Q66)
· Your username on Chatwi is 'Policeman'. (ROI – Q77)
· Some conversations you had on the site did get explicit. (ROI – Q74)
· You recall receiving the phone number of someone you were chatting with and calling them.
· This occurred probably two to three weeks ago. (ROI – Q84)
· You recall talking to them about screwing. (ROI – Q85)
· She asked you if she could call. (ROI – Q89)
· You really believed the person was an adult. (ROI - Q115)
· You sent a photo of a person’s penis. This was not yours. (ROI – Q140)
· You received a photo of a person’s face and thought she looked twenty. She did not look young. (ROI – Q154)
· You asked if she was eighteen and she responded that she was sixteen, or something like that. (ROI – Q159)
· You are the only person that uses your computer that you access Chatwi with. (ROI – Q221)
·
The image of the male sent is not you. It is one of your karate students.
(ROI – Q293)
16
You were arrested on 16 July 2021 and at the first committal mention on
18 November 2021 you entered pleas of guilty to the subject charges. It is accepted by the prosecution that your pleas of guilty were at the first available opportunity.
17It is accepted by the prosecution that you have no prior convictions for any sexual offending nor, indeed, any offending whatsoever. You have been on bail since your arrest and have served no pre-sentence detention.
Your background, character, antecedents, means and physical and/or mental condition
18Your counsel tendered the following material:
(a) Report of the clinical forensic psychologist, Mr Patrick Newton, dated 27 April 2022 (exhibit 1);
(b) Report of the provisional psychologist, Mr Geoffrey Burrows, and, the psychologist, Dr Mathew Barth, dated 28 April 2022 (exhibit 2);
(c) Report of the psychologist, Mr Jeffrey Cummins (re daughter of the accused), dated 3 May 2022 (exhibit 3);
(d) Further report of Mr Jeffrey Cummins (re wife of the accused), dated 2 May 2022 (exhibit 4);
(e) Reference of HIJ, dated 30 October 2021 (exhibit 5);
(f) Reference of EFG, dated 4 November 2021 (exhibit 6).
19Based, in part, on the various submissions made by your counsel and, in part, on the aforementioned documents, I note the following:
· You were born and grew up in South Australia, being the eldest of four siblings. Your father worked as a shearer and your mother engaged in home duties.
· You described to the psychologist, Mr Patrick Newton, that your memories of your childhood are “piecemeal”, with large gaps for many aspects of your development.
· You do retain memories of the harsh physical and mental abuse that you reported receiving at your mother’s hands, with you describing your mother as “vicious and brutal” and that she would regularly beat you and your siblings, using jug cords, sticks and other implements, to inflict what she considered to be corrective punishment for transgressions of her rules.
· You attended primary and secondary schools in South Australia and reported that you had acquired functional literacy and numeracy skills without undue difficulty. You also told the psychologist that you had repeated Grade 3 and that you were “not a very good student” and that you were “a loner at school”, with only one or two friends.
· You also reported being the subject of teasing from peers at school on account of your father’s occupation and the poverty of your family. You remained on the edge of social circles and did not socialise extensively.
· You failed your exams at the first year of high school on account of illness and repeated the year successfully and then left school, as you had reached the age of fifteen. Although you did not return to secondary school studies or complete an undergraduate degree, you have subsequently completed various tertiary studies. And, at the time of the assessment by Mr Newton, you were in the process of completing PhD studies at a Melbourne University. Your dissertation was in the field of domestic violence prevention.
· On leaving school, you worked as a shearer at various locations around South Australia from the age of fifteen until approximately the age of twenty seven. After this, you obtained work in a factory, remaining in that role for about three years.
· Significantly, you joined the Victorian Police Force in 1981 and worked in a range of roles over the course of a lengthy career, rising to the rank of inspector, before retiring from police work in 2019, or early 2020. Since leaving the police, you have been working full time on your PhD.
· You suffered polio as a child and through your efforts to overcome its sequalae, you commenced a lifelong involvement in the sport of karate and you hold advance levels of proficiency in such sport, having trained many young people in the sport.
· You reported to the psychologist that you had always been a “shy and awkward young person”. You commenced a relationship with your first girlfriend when you were about eighteen and that you had gone out 'a few times' when you discovered that she was also involved with another man, causing you to terminate the relationship forthwith. You commenced a further relationship with another young woman soon after and discovered that she, too, was “screwing” someone else.
· You were then married to your first wife for a period of ten years and that relationship produced one child, who is now in his early forties. You spoke of your marriage to your first wife in “negative terms”, noting that she, too, had “cheated on [you]”.
· You have been in your current relationship with your second wife for about thirty-three years and have one daughter. The psychologist reports that you have a strong emotional bond to your wife.
· You reported to the psychologist that you had suffered longstanding subclinical depression and anxiety in connection to your work with Victoria Police. You attributed much of this difficulty to interactions with colleagues and, in particular, alluded to a traumatic episode when you were working in Dandenong, but did not provide details. At that time, you had consulted a psychologist at the request of Victoria Police, but did not return after the psychologist seemed upset by your account of your childhood abuse.
· Furthermore, you again consulted a psychologist on one occasion in the context of marital distress involving your first wife.
· It is noted that you had been consulting Mr Burrows since March 2022, for materials primarily offence related, but also had incorporated some attention to your mental health, as required. You informed Mr Newton that you had never been prescribed medication for emotional or psychological issues and had never been admitted as a psychiatric inpatient at any time.
· Again, you informed the psychologist that you do not drink alcohol and have never used illicit substances.
The evidence of Mr Patrick Newton
20Mr Newton, a clinical and forensic psychologist, consulted with you on two occasions; the first in February 2022 and, later, in April 2022. You were seen for approximately two and a half hours of interviewing, plus a further two hours of psychological testing over the course of the two occasions.
21Mr Newton also noted that, at the time of writing his report in April 2022, you had commenced attending counselling with Mr Burrows at the same psychological clinic as Mr Newton. And such treatment had commenced in March 2022, and at the time of writing the report, you had participated in six consultations. Later, you ceased attending Mr Burrows.
22In general terms, Mr Newton describes your engagement with the assessment process as “variable”. He notes that you were polite and friendly when discussing your background and feelings in general and, in particular, provided detailed information on a written questionnaire about your background.
23However, Mr Newton notes that, when discussions turned to the subject offending, you had considerable difficulty discussing your conduct in any detail and was unwilling to go through the summary, or other documentation, with Mr Newton.
24Furthermore, Mr Newton noted that your emotional demeanour varied considerably over the two meetings. According to Mr Newton, you presented at the first meeting with significant and severe symptoms of depressive mood disturbance, being often tearful during the meeting, and it was only with difficulty you could contain yourself sufficiently to provide a coherent narrative. In the second interview, Mr Newton noted your emotional demeanour was euthymic and varied nominally.
25Mr Newton obtained detailed histories in relation to your personal circumstances, relationships and sexual history, and mental health.
26When the discussion turned to the subject offending, you had considerable difficulty providing a clear account of your offending and was unwilling to discuss the details of the summary with Mr Newton in any detail. In particular, when asked to explain your offending, you told Mr Newton that, in the context of persisting difficulties discussing your anxiety and emotional issues with colleagues, your wife and mental health professionals, you had sought out the social media application “Chatwi”. In particular, Mr Newton records you stating:
“As I find it very difficult, to talk to people, I have sometimes gone into a forum/chat room to talk to people of a like mind to me. I have spoken to other police people and people in the armed forces. I have never gone in there with the intention of ‘hooking up’ with people.”
27Furthermore, you informed Mr Newton that you considered the person you were engaged with during the “chat” and telephone call to have been an adult and that you had simply been “playing along” with them, adopting a passive role in response to their initiative.
28You became distressed when it was pointed out to you that the version was not consistent with the prosecution summary. However, you would not engage in a specific discussion of the material.
29Furthermore, you could not explain why you had wanted to engage in such role play involving an underage female and specifically denied sexual motivation for doing so. Similarly, you could not account for the ready availability of the photograph of the erect penis which you shared. You specifically stated you had not been preparing for the encounter.
30When asked for your response to the incident, you expressed shame and regret for the impacts of your arrest, pre-occupation and prosecution upon your wife and daughter. However, according to Mr Newton, you could not be meaningfully engaged in a discussion of the impacts of such sexualised chat with young people, or the potential effects on the undercover operative.
31An assessment of your mental health by Mr Newton was characterised by prominent symptoms of reactive depression, although these were less intense at the second meeting. You described to him that your mood was 'shattered' and that you felt sad and emotionally depleted. You described an experience of ruminative worry, which interferes with your ability to concentrate, and makes it difficult for you to think clearly. You told the psychologist that your sleep had been fitful and your appetite poor, reinforcing a lifelong stance of intense introversion, and you had become even more socially isolated, seeing no one but your wife and daughter, and confining yourself to your home out of shame.
32Mr Newton considered that your symptoms were sufficiently intense to meet the criteria for an adjustment disorder with depressed mood. However, Mr Newton was of the opinion that, although you were experiencing a degree of stress at the time of your offending conduct, there was no indication to suggest, at the time, you were labouring under the effects of any mental disorder, or that your reasoning impulse control and judgement was adversely affected by any mental disorder or any other psychological factor. In this sense, he was of the opinion there was no nexus between any psychological disorder (or subclinical disturbance) on your offending.
33
Furthermore, Mr Newton was of the opinion that you were lucid and orientated throughout the consultation. And although you were reluctant to discuss your offending, you were not suffering from any thought disorder or psychosis.
Mr Newton was of the view that your reality testing and moral reasoning were not impaired and that your intelligence was estimated to fall within the normal range.
34Mr Newton was of the opinion that the traits he found to exist - that is, socially awkward and pathologically introverted, with a very limited desire for closeness with others and social interaction - is the hallmark of a personality disorder. Specifically, Mr Newton was of the opinion you would meet the criteria of a Schizoid Personality Disorder, which he considered to be the primary diagnosis in this case.
35Mr Newton also notes that, although it was intended to conduct a detailed review of your sexual adjustment as part of this assessment, only a superficial overview could be gleaned, given your considerable difficulty in engaging with this aspect of the assessment. Mr Newton noted that you expressed ambivalence and distaste for participating in sexual interactions with adults, that you had a low sex drive, that you did not enjoy “sex themes” in movies and that you rarely accessed pornography.
36Mr Newton opined that:
“[Your] offending conduct strongly suggests that [you] experienced sexual arousal to an individual who purported to be a 14-year-old female. A review of the transcripts makes it clear that throughout the interactions [you were] active, persistent and explicit in [your] involvement with this individual and that [you] ostensibly masturbated while engaged with her. This suggests significant sexual deviance and dysfunctional sexual arousal patterns.”
37Furthermore, Mr Newton opined:
“The offending admitted by [you] is unequivocally serious. Absent frank mental illness or severe neurocognitive deficit (both of which are clearly not applicable in [your] case), individuals who engage in such behaviour typically manifest misconceptions about the sexual development of children, confusion about issues associated with consent, and/or a tendency to downplay the damage caused by sexual contact between adults and children. In the context of [your] guardedness and equivocal cooperation with this aspect of the assessment it is not possible to comment on such matters in detail. Nevertheless, there is a clear need for [you] to continue to participate in specialist counselling to assist [you] to work through the issues raised by [your] offending.”
38Mr Newton also conducted a risk assessment and had regard to the Risk for Sexual Violence Protocol ('RSVP') when assessing the risk of recidivism in your case. He notes that this is a structured professional judgement instrument, which includes historical, dynamic and protective factors. It is composed of twenty-two risk items with five separate domains, and is widely used.
39Mr Newton concluded that you posed no less, a moderate risk of recidivism to sexual offending. He notes that this is about average relative to other sex offenders undergoing sentence, but higher than the level of risk typically seen in offenders charged with only online offending. In conclusion, Mr Newton noted that you are already experiencing elevated levels of depression and that you would be at risk for developing a more serious mood disturbance were you placed in a custodial environment. Furthermore, you would be a vulnerable prisoner on account of your status as a former member of the police force, your pre-existing depression and the nature of your offending conduct. Mr Newton was of the opinion that you would be at greater than usual risk of adverse attention from other prisoners and that the necessity of placing you in protective custody would place you in a more limited range of educational, recreational and other opportunities while in prison.
40In turn, these factors would tend to exacerbate your depression and increase the risk of impulsive self-harm. It would be important that you be provided with some form of mental health care to ensure that your mental health does not deteriorate in the early period of any time in custody. Furthermore, Mr Newton was of the opinion that, even assuming you did receive such assistance, it would almost be certain that your depression would deteriorate and, in this sense, your period in custody would be more onerous than other prisoners who were not facing these challenges.
The evidence of Mr Geoffrey Burrows
41Mr Geoffrey Burrows, at the time of writing a report dated 28 April 2022, was a provisional psychologist, seemingly under the supervision of Dr Mathew Bath, a fully-qualified psychologist. Mr Burrows notes that you attended his office to participate in sex offender treatment program ('SOTP'), at your own expense, on six occasions, commencing on 3 March 2022 and most recently on 22 April 2022.
42Mr Burrows noted that you presented as a “tense and anxious man”, tending to communicate in an eccentric and idiosyncratic manner. You were very keen to discuss the symptoms of depression and anxiety you were experiencing in response to your criminal case, including suicidal ideation. You also wished to discuss your personal background, including childhood trauma, low self-esteem, and feeling emotionally detached from people as an adult.
43In relation to your background leading up to the offending, Mr Burrows reports that you told him that you often felt socially isolated, but found it difficult to communicate and share your feelings with anyone, including your wife. You told him that you found it easy to communicate with strangers online and often resorted to this in an attempt to resolve your sense of isolation. According to you, these interactions were never sexual in nature and you strongly denied engaging in any sexual conversation online with adults, or children, prior to this offending behaviour.
44In particular, you reported that you were ashamed of your actions, but reported you could not recall the offending interaction in any detail. You offered a version of events that was inconsistent with the summary of facts, for example, you described yourself as mostly a passive participant in the sexual interactions and that you were just “trying to keep up”.
45When presented with evidence that you were a more active participant, you became very distraught and inconsolable. Mr Burrows notes that that made it impossible to obtain a clear understanding of your offence process.
46Mr Burrows notes that, to develop insight into the offending behaviour, it was necessary to discuss the details of your offending behaviour and your thought processes at the time. As mentioned, you found this very difficult to do and he was unable to make any meaningful progress. You no longer attend Mr Burrows.
The evidence of HIJ and EFG
47During the course of the plea on 28 November 2022, your counsel called two lay witnesses in relation to your background and character.
48The first witness was referred to as “HIJ”, who gave evidence that he had known you for about nineteen years at karate, in particular, you being the head of a karate organisation. In particular, HIJ noted that the karate organisation involved a collection of schools in Victoria, with affiliations overseas.
49HIJ described that, when he was training in karate, which occurred up to about four years ago, he would see you weekly, but since leaving the club he saw you less frequently, probably about every three months or so. HIJ confirmed that he was initially a student within the organisation and in later years a teacher in one of the karate clubs. He also confirmed that, over five years, he observed you with various karate students, arranging anywhere from between five to seventy, and at no time did he have any concerns about your behaviour or see any inappropriate behaviour towards children.
50When queried as to whether or not you have expressed any remorse in relation to your subject offending, HIJ stated 'unequivocally … [ABC] respond in the way he’s responded. Distraught, sad, regretful'. (T11, L15-18)
51When asked to clarify what he said, HIJ said, on occasions, he has observed you with uncontrollable tears and just so different from your normal assertive and confident presence.
52HIJ confirmed that his children were trained in karate by you and, again, he had no concerns about his children being with you. HIJ described you as a “friend”, with a relationship developing over time, initially as a mentor and later, definitely as a friend.
53HIJ noted that you were also distraught and remorseful and felt devastated as to what your behaviours had done to your family. When queried as to whether he had any observations about your ethical standards and your dealings with people, HIJ commented that you always had a friendly manner, but also had “somewhat of a distant or removed style”. (T112, L13)
54EFG gave evidence that she had known you for over “thirty years” through karate. In particular, EFG described how she has had her son and two grandchildren involved in karate and that she would see you once a week and up to three times a week.
55EFG stated that she never had any concerns regarding you with your behaviour with students. She also commented that you were “very well-respected by all the people in the club” (T118, L3-4) and that she had never received a negative report about you.
56EFG also commented that your role within the karate clubs was both as a mentor and leader and that you displayed great abilities, with people seeking out your help and understanding.
57EFG gave evidence that you rang her shortly after being charged and that you rang her to ask if a reference could be written. When asked what you told her, EFG described that you told her that you sent a photo of yourself and that you were:
“… very ashamed and he was very sorry that – and he also wanted to know whether I would speak to him again, and I said to him, ‘This is not you, what on earth has happened? What have you Done?’ And – and he’s – and he was so remorseful and upset, it was very hard to … speak to him, to try and help him understand – help me understand what had happened to him. Ah, it’s – it’s totally out of character to the person that I know.” (T119, L23-30)
58When asked about your usual demeanour, EFG described you as not getting 'too close to people' and that you were really not a person who wants to sit there and talk for a long period of time.
59EFG also gave evidence that, when you communicated with her about the offending you were crying, which she had never seen before. EFG ultimately described the offending as 'totally out of character, it’s not the person we know' (T122, L9-11)
The sentencing regime under the Act
60Before turning to the various submissions made by your counsel, both in relation to mitigation of any sentence and the nature of the sentence, it is useful to have an understanding of the sentencing regime under the Act. I refer to Part IB of the Act, which is headed: “Sentencing, Imprisonment and Release of Federal Offenders”.
61I refer to the following:
(a) Section 16A(1) of the Act provides that, in determination of the sentence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence;
(b) Section 16A(2) sets out a non-exhaustive list of factors to be taken into account as far as they are relevant and known when sentencing a Federal offence. These matters include:
'(a) the nature and circumstances of the offence;
…
(d) the personal circumstances of any victim of the offence;
…
(f)the degree to which the person has shown contrition of the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)any other manner;
…
(g)if the person has pleaded guilty to the charge in respect of the offence:
(i)that fact; and
(ii)the timing of the plea; and
(iii)the degree to which that fact and the timing of the plea resulted in any benefit to the community, or of any victim of, or witness to, the offence;
(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
…
(j)the deterrent effect that any sentence or other order made under the consideration may have on other persons;
(ja)the deterrent effect that any sentence or other order under consideration may have on other persons;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(ma)if the person’s standing in the community was used by the person to aid in the commission of the offence, that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(n) the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”;
(c) I also refer to s16A(2AAA) of the Act, which provides that:
“In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters that are relevant and known to the court:
(a) when making an order to impose any conditions about rehabilitation or treatment options
(b) in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program”;
(d) I also refer to s474.29AA of the Criminal Code (Cth) (the 'Code'), which directs that certain factors must be taken into account when sentencing an offender for offences under Subdivisions F of Division 474 of the Code, which includes the offending covered by Charges 1 and 2. The Court is required to take into account the age and maturity of the victim of the offences. In the circumstances of this matter, considering that the 'victim' was a police operative, this is not overly relevant to sentence, save and except in a general way that, being a police operative who clearly was not a young girl, it would be unlikely that the impact on her would have been to the same extent as on a young girl, given that the police operative was no doubt trained in these matters;
(e) As I have already recorded Charge 2 involves a mandatory minimum head sentence of five years’ imprisonment. In Bahar v R,[3] the New South Wales Court of Criminal Appeal held that, where there is a minimum mandatory sentence, the question for the sentencing judge is where, having regard for all relevant sentencing factors, the offending falls.[4] In particular, the factors to consider in determining a minimum mandatory sentence are set out in Bahar including:
[3](2011) 45 WAR 100
[4]See Baharv R (op cit) at paragraph [46]
(i)The statutory minimum, like the statutory maximum, is a legislative direction as to the seriousness of the offence;[5]
[5]See Bahar v R (op cit) at paragraph [46]
(ii)The statutory minimum and maximum penalties dictate the seriousness of the offence for the purposes of s16A of the Act.[6] They are the floor and ceiling respectively, within which the judge has a sentencing discretion as to whether the general principles are to be applied;[7]
[6](Ibid)
[7](Ibid) at paragraph [55]
(iii)The minimum penalty is for the least serious category of offending and the maximum penalty is for offences in the worst category, taking into account all relevant factors, namely s16A matters and relevant common law principles. The Court stated at paragraph 55:
“…First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise ‘category’ of offending. There is no single instance at either extreme. Secondly, when an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender…'
The approach set out in Bahar as to how a court should approach matters involving mandatory minimum sentences has been recently confirmed by the New South Wales Criminal Court of Appeal in R v Delzotto,[8] and by the ACT Court of Appeal in Hurt v R,[9] which inter alia followed the previous decisions as to the appropriate sentencing methodology to employ where mandatory minimum sentences apply, set out in Karim v R[10] and also confirmed by the court in Glasheen v R.[11]
[8][2022] NSWCCA 117
[9][2022] ACTCA 49
[10][2013] NSWCAA 23
[11][2022] NSWCAA 191
I was informed by counsel for the prosecution that special leave has been sought to appeal to the High Court in relation to the decisions of Delzotto[12] and Hurt.[13] There were no further details as to when those applications would be heard and, indeed, it was a common ground of the parties that the matter should proceed on what is submitted to be the established law;
[12]Op cit
[13]Op cit
(f) I do refer to the relatively recent decision or Rex v Taylor,[14] which involved an appeal by the Crown against a sentence which was said to be 'inadequate'. In that matter, the respondent pleaded guilty to a single charge of using a carriage service to procure a person under the age of sixteen for sexual activity. The offence was contrary to s474.26(1) of the Criminal Code (Cth) and carried a maximum penalty of imprisonment of fifteen years. As the New South Wales Court of Criminal Appeal noted, s16AAB of the Crimes Act 1914 (Cth), subject to s16AAC, prescribes a minimum sentence of imprisonment where a person is convicted of a Commonwealth child sexual abuse offence, and the person has been convicted previously of a child sexual abuse offence. The respondent had a number of prior child sexual abuse convictions.
[14][2022] NSWCCA 256
The respondent was sentenced to imprisonment for three years with an RRO to take effect after he had served eighteen months of the sentence. The sentence was below the mandatory minimum and was attributable to the respondent’s quick plea of guilty, as provided by s16AAC(2)(a) and s16AAC(3)(a) of the Act.
In particular, the Director of Public Prosecutions appealed on four grounds, two of which were:
(i)The sentencing judge erred by imposing a sentence that did not reflect the sentencing principle of a mandatory minimum head sentence of four years’ the imprisonment was for the least serious category of offending, as set out in Delzotto;[15]
[15]Op cit
(ii)The sentencing judge erred by imposing a sentence that was only available for the least serious category of offending when his Honour did not find the offending was in the least serious category, which finding was not open on the facts found by his Honour;
(iii)It was held (dismissing the appeal) per Simpson AJA, Davies J concurring with additional remarks and Wilson J agreeing in part, but dissenting in the result), that, inter alia:
“(1)There is no legislative prescription that the mandatory minimum penalty can only be imposed where the offence in respect of which the sentence is to be passed is (expressly) characterised as ‘within the least serious category of offending' (quoting Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249 at [58] (‘Bahar’)). Nothing in the decision of R v Delzotto [2022] NSWCCA 117 adopts the proposition that unless a particular offence is (expressly) found to be within the least serious category of offending that a sentence in excess of the mandatory minimum must, as a matter of law, be imposed (subject to any reduction pursuant s 16AAC, Crimes Act 1914 (Cth)). ([54]-[56]; [67]-[70]; [72]; [78]). (Simpson AJA).
…
(2) Parameters of sentencing are set, first by any legislative requirements and secondly, by principles developed over the years by the common law. One common law principle to be applied is that the sentence imposed must properly reflect both the personal circumstances of the particular offender and the particular conduct with which the offender engaged when those circumstances and conduct are compared with other offenders and offending. ([57]-[60]).(Simpson AJA)
…
(3)Where a minimum sentence has been legislatively prescribed, it must (like a maximum) operate as a yardstick. The prescription of a mandatory minimum term imports an additional constraint into the evaluation of proportionality, but it does not eliminate proportionality as an important sentencing consideration. The prescribed sentence does more than fix a boundary above or below which the sentence imposed may not go. ([61]-[63]; [66]; [71]). (Simpson AJA)
….”.
(g) I again refer to S16AAC of the Act and, in particular, sub-s(2) and sub-s(3) which provide for specified reductions below the mandatory minimum term to accommodate an offender’s plea of guilty, and any assistance to authorities in circumstances where the low level of offending and the applicable mandatory minimum sentence prevents this from occurring.[16] These provisions permit a reduction of 25 per cent to accommodate any reduction in respect of a guilty plea pursuant to s16A(2)(g) of the Act and up to a reduction 25 per cent to accommodate any recognition of the offender’s cooperation of a kind recognised in s16AAC(2)(b) of the Act.[17]
[16]See Glasheen v R (op cit) at paragraphs [14]-[15]
[17]The reduction in this context is only available for cooperation with the investigation of the offence for which the person is being sentenced or another Commonwealth child sex offence, and does not take into account future cooperation.
The provisions permitting the imposition of a sentence below the mandatory minimum head sentence address the following issue identified in Bahar:[18]
[18](Op cit)
“…a mandatory minimum sentence of imprisonment can create complications for reductions in sentence for mitigatory factors...
‘[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term which makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability…”;[19]
(h)
The principles relevant to the setting of non-parole periods have not been altered by the introduction of a mandatory minimum sentencing regime. Of course, as noted in Hili v R,[20] the necessary deterrent and punitive effects of sentences must be reflected in both the head sentence and also in the
non-parole period. Furthermore, the High Court endorsed the conclusion that no mechanistic approach to formulating a non-parole period was appropriate:
“because the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects to the overall sentencing process may differ according to infinitely variable circumstances…”[21]
[19]See Bahar v R (op cit) at paragraphs [56]
[20](2010) 242 CRL 520 at [41]
[21](Ibid) at [42]
62As I understand, the submission made by your counsel, there is no issue in relation to the sentencing considerations discussed above. However, your counsel also seeks to rely on the Act providing a power to order a Recognisance Release Order ('RRO') where the aggregate sentence is more than three years’ imprisonment. Counsel for the prosecution disputes that such a power exists under the Act.
63I refer to Division 4 of Part IB of the Act and, in particular, to, initially, s19AB of the Act, which states:
“(1)Subject to sub-s(3), a court must fix a single non-parole period in respect of a federal sentence or federal sentences if:
(a)a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)the court imposes the sentence or sentences on the person; and
(c) either or both of the following subparagraphs apply:
(i) any of the sentences is a federal life sentence;
(ii) the sentences, in the aggregate, exceed 3 years; and
(d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.
(2) Subject to sub-s(3), a court must fix a single non-parole period in respect of all federal sentences a person is to serve or complete if:
(a)while the person is in prison and is serving or subject to a federal sentence, the court imposes a further federal sentence on the person; and
(b)the result is that the person is to serve or to complete:
(i) a federal life sentence; or
(ii)federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and
(c) when the court imposes the further federal sentence, the person is not already subject to a non-parole period or recognisance release order in respect of a federal sentence.
Non-parole period not appropriate
(3) A court may decline to fix a non-parole period under this section if:
(a)the court is satisfied that a non-parole period is not appropriate, having regard to:
(i)the nature and circumstances of the offence or offences; and
(ii) the antecedents of the person; or
(b)the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.
(4)If the court declines to fix a non-parole period, the court must:
(a)state its reasons for so declining; and
(b) cause the reasons to be entered in the records of the court.”
64Pausing there, it seems clear enough that, in general, if someone is sentenced to an aggregate period of imprisonment exceeding three years, the Court must order a single non-parole period, save for circumstances described in sub-s(3) of that section.
65I also refer to s19AC of the Act, which is headed “When court must fix a recognisance release order” and states:
“(1)Subject to sub-s(3) and (4), where:
(a)a person is convicted of a federal offence, or of two or more federal offences at the same sitting; and
(b)the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and
(c)at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
The court must make a single recognisance release order in respect of that sentence or those sentences and must not fix a non-parole period.
(2)Subject to sub-s (3) and (4), where:
(a)while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and
(b)the result is that the person is to serve or to complete federal sentences the unserved portions of which do not exceed, in the aggregate, 3 years; and
(c)at the time the further federal sentence is imposed, the person is not already subject to a recognisance release order in respect of a federal sentence;
The court imposing the further sentence must make a single recognisance release order in respect of all federal sentences to be served or completed by the person and must
(3) Where:
(a)the federal sentence or federal sentences referred to in paragraph (1)(b); or
(b the unserved portions of the federal sentences referred to in paragraph (2)(b);
In the aggregate, do not exceed 6 months, the court is not required to make a recognisance release order.
(4)A court may decline to make a recognisance release order in respect of a person if:
(a)the court is satisfied that such an order is not appropriate, having regard to:
(i)the nature and circumstances of the offence or offences concerned; and
(ii)the antecedents of the person; or
(b)the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.
(5)If the court declines to make a recognisance release order, the court must:
(a)state its reasons for so declining; and
(b)cause the reasons to be entered in the records of the court.”
66Clearly enough, subject to some very precise exceptions, the Court must make a single RRO in circumstances where two or more Federal sentences in the aggregate do not exceed three years’ imprisonment.
67In particular, your counsel sought to rely on s20 of the Act, which is headed “Conditional release of offenders after conviction”. Section 20 falls within Subdivision D of Part 1 of the Act, and subsection D is headed “Discharge without conviction, conditional release and sentencing alternatives”.
68Section 20(1) of the Act states:
“(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a)By order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs, by specified instalments as provided in the order;
(iii)that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
(iv)that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.
(b) Sentence the person to imprisonment in respect of the offence or each offence but direct, by order that the person be released, upon giving security of the kind referred to in paragraph (a):
(i) if none of the offences is a Commonwealth child sex offence, either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with sub-s19AF(1); or and relevantly;
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances, after the person has served a specified period of imprisonment that is calculated in accordance with
sub-s19AF(1); or and again I emphasise;(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are 'Exceptional circumstances, immediately.”
(1A) Subject to sub-s(1B), if the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer;
The court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
(1B)If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period:
(a)be subject to the supervision of a probation officer appointed in accordance with the order; and
(b)obey all reasonable directions of the probation officer; and
(c)not travel interstate or overseas without the written permission of the probation officer; and
(d)undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
(2)Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:
(a)the purpose and effect of the proposed order;
(b)the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c)that any recognisance given in accordance with the order may be discharged or varied under section 20AA.
(2A) A person is not to be imprisoned for a failure, under an order made under sub-s(1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.
(3)Where a person is released in pursuance of an order made under
sub-s(1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence.
(4) Where an order is made under sub-s(1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
….”
(My emphasis.)
69Your counsel sought to rely on s20(1)(b)(ii) and s20(1)(b)(iii). Further, it was submitted that there were 'exceptional circumstances' which is not defined within the Act, which would satisfy the requirement under sub-s(ii). However, if the Court was not satisfied that there were 'exceptional circumstances', sub-s(ii) could have application after the person had served a specified period of imprisonment that is calculated in accordance with s19AF(1) of the Act.
70Counsel could not point to any authority where s20(1)(b) of the Act was utilised in circumstances where a person was sentenced to three years or more for one or more Federal offences. Reference was made to a New South Wales District Court Decision of R v Finch, [22] which was decided on 23 November 2022. In that matter, the offender pleaded in respect of an offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) that, between 6 November 2020 and 30 January 2021, he used a carriage service to make available child abuse material. The maximum penalty for the offence was fifteen years’ imprisonment.
[22][2022] NSWDC 578
71It should be noted at the outset that the offence under s474.22(1) of the Criminal Code 1995 (Cth) was not subject to a mandatory minimum head sentence.
72Of course, it also has to be noted, as already detailed in this judgment, a sentence or aggregate sentence of three years or more must attract a non-parole period rather than a RRO. Just as it is clear that sentences under three years attract an RRO rather than a non-parole period.
73Counsel for the prosecution submits that s20 has no relevance to the circumstances of this matter. If there is any possibility of an RRO, it would have to be in circumstances where the aggregate sentences in relation to Charges 1 and 2 in this matter are less than three years.
74I should add that, in the guidelines “Sentencing of Federal Offenders in Australia, a Guide for Practitioners”,[23] which I quickly should add would only become arguably relevant if statutory interpretation left matters uncertain, paragraph 705 states:
“The requirements in relation to an offender who is not serving or subject to a federal sentence, by reference to the head sentence or total effective sentence imposed for the federal offences, are as follows:
· 6 months or less: If the federal sentence is, or sentences are in the aggregate, for a period of imprisonment of 6 months or less, there is no power to fix a NPP[24] (except if one of the offences is a ‘minimum non-parole period offence’ in which case a NPP is mandatory). The court may, but is not required to, make a RRO (Crimes Act1914, ss 19AC(3), 20(10(b)). That is, the court may either make a RRO or impose a straight sentence.
· More than 6 months or up to 3 years: If the federal sentence imposed is, or sentences are in the aggregate, for a period of imprisonment of more than 6 months but not more than 3 years, there is no power to fix a NPP (except if one of the offences is a ‘minimum non-parole period offence’ in which case a NPP is mandatory). The court is required to make a RRO (ss19AC(1), 20(1)(b)), unless it exercises the discretion to decline to fix a RRO (that is, to impose a straight sentence) in the circumstances set out in s 19AC(4).
·More than 3 years (including a life sentence): If the federal sentence imposed is for imprisonment for life or (alone or in the aggregate) for a period of imprisonment in excess of 3 years, the court must fix a single NPP (Crimes Act 1914, s 19AB(1)), subject to the discretion to decline to do so (that is, to impose a straight sentence) in the circumstances set out in s 19AB(3).”
[23]Fifth edition, April 2022
[24]Reference was made to R v Fulop [2009] VSCA 296; Hunt v DPP [2009] SASC 116 at paragraph [10].
Matters relied on by your counsel in mitigation of your sentence
75It was submitted by your counsel that the subject offending was mid to low range of this type of offending. In particular, your counsel referred to the following matters in mitigation of your sentence:
(a) Your plea of guilty (see generally s16A(2)(g) of the Act)
Your counsel submitted that you pleaded guilty at the absolute earliest possible time and such plea was in circumstances where you would well appreciate there being stern sentences in relation to Charges 1 and 2. It was put that the timing of the plea resulted in great utilitarian benefit to the community, as the cost and time of a trial was obviated and there was no need for any witnesses to give evidence.
Furthermore, given that such plea was given during the period of trial suspension due to the COVID-19 pandemic, accordingly, you should attract a further discount on your sentence, consistent with the principles enunciated in Worboyes v R;[25]
[25][2021] VSCA 169
(b) Reliance on Verdins’ principles 5 and 6 (see s16A(2)(n) of the Act)
It was submitted on your behalf that the evidence of Dr Newton enlivened Principles 5 and 6 in R v Verdins; R v Buckley; R v Vo.[26] These principles are:
[26](2007) 16 VR 269
“5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”;
I accept such submissions.
(c) Your co-operation with the authorities (see s16A(2)(h) of the Act)
It was submitted by your counsel that you gave great assistance to the authorities, particularly when during the execution of the search warrant at your premises at which time you identified the computer which was used. You stated you were the only person using such computer, gave the password to the computer, identified both the photos of the person sent to the 'victim.' And indeed, stated that it was not your penis, a photo of which was also sent to the victim. Also you gave your telephone number voluntarily to the police at that time;
(d) Remorse (see s16A(1)(f) of the Act)
Your counsel submitted that you have shown some degree of remorse and, indeed, the fact of making such an early plea gives some indication that you had a degree of remorse about your actions. Your counsel submitted that your personality was such that, consistent with the evidence of Mr Newton, you are socially awkward and pathologically introverted, which would have impacted on your capacity to express remorse;
(e) Hardship (see s61(b)(m) of the Act)
Your counsel submitted that you will suffer hardship beyond normal hardship suffered by any person who is incarcerated for the following reasons:
(i)A combination of you being a former policeman for many years, being guilty of child sex offences, and your background in karate would, to employ the colourful term employed by your counsel, you would have 'A target on your back';
(ii)You would also experience hardship as a result of your concerns for your wife and daughter. The basis of the Pseudonym Order obtained by your solicitors prior to the hearing of this matter was largely based on evidence to suggest that your wife, in particular, would not be able to cope if the public knew of your offending and, to a lesser extent, this also applied to your daughter. In relation to your wife, the evidence would suggest that this was a significant problem with a real risk it would lead to suicidal ideation and possibly suicide.
Although one would hope that the pseudonyms for all persons in this matter would ameliorate any real risk that your wife and, indeed, your daughter, of being exposed to any publicity surrounding your offending.
Of course, it is now clear that the well-known Victorian Court of Appeal decision of Markovic v R,[27] re-affirmed the common law position that, unless the circumstances are shown to be exceptional, family hardship is to be regarded as a sentencing consideration. However, in Totaan v R,[28] the New South Wales Court of Criminal Appeal held that in the decision of Markovic, requiring the Court to impose a sentence for a Federal offence may only have regard to family hardship, where the offences of hardship satisfy the epitaph “exceptional” and are “plainly wrong” and should not be followed. This position has been adopted in Victoria in cases such as Rodgerson v R;[29]
(iii)Moreover, it was submitted that you would experience hardship in prison because of ongoing restrictions in relation to COVID-19. They being restrictions in relation to family and friends, restrictions on undertaking the various activities and courses in prison and generally being exposed to lockdowns and quarantine periods. It was suggested that although this would not be as onerous as times past, some restrictions do continue to be relied on, and that is likely to continue into the future;
[27](2010) 30 VR 589
[28][2022] NSWCCA 75 at paragraphs [77], [92]-[93] (per Bell CJ, with whom Gleeson JA and Harrison, Adamson and Dhanji JJA agreed)
[29][2022] VSCA 82
(f) Your age, character and antecedents (see s16A(2)(m) of the Act
Your counsel submitted that this offending occurred when you were sixty eight, following a blameless life involving you rising up through the police service to the position of inspector. And also being very actively involved in running a karate school, where you dealt with many people, including children of all ages. Again, there is no issue that you have no prior convictions for any sexually-related matters or for that matter, any matters;
76Your counsel also submitted that, in forming a view of the seriousness of your offending, it should be borne in mind the limited timeframe over which it occurred- that is one time only on a single day- and there was no evidence whatsoever to suggest you ever intended to physically meet the victim.
The position of the Prosecution
77Counsel for the prosecution prepared a document headed “Outline of Crown’s Sentencing Submissions”, dated 11 November 2022. I do not recall that document being tendered and I direct that it will be tendered and marked as Exhibit “B”.
78It is submitted on behalf of the prosecution that:
(a) No sentence other than an immediate term of imprisonment on each charge is appropriate in all of the circumstances. In particular, there would be a degree of cumulation between each charge to reflect the distinct and different forms of offending and reflect the presumption in favour of cumulation set out in s19(5) of the Act;
It was submitted that general deterrence is the primary sentencing consideration for offending involving the online sexual exploitation of children. Given the vulnerability of children online and the need to protect children, not only against the potential for subsequent in-person sexual abuse, but against the harm and potential corruption caused by insidious or graphic sexualised communications directed at vulnerable children;[30]
[30]Reference was made to Gifford v R (2016) 263 A Crim R, 373; Meadows v R [2017] VSCA 290
(b) In particular, counsel for the prosecution set out various factors of 'central relevance' in assessing the seriousness of offending involving online child exploitation:[31]
[31]Reference was made to R v Apslund (2010) 216 A Crim R 48 at [48]-[49]; Meadows v R (op cit) and Tector v R (2008) 186 A Crim R 133
· The number, length and type of conversations between the offender and victim.
· The frequency of conversations and the level of persistence of the offender.
· The nature of any sexual material communicated.
· The extent to which the intent of future activity with the offender is exposed and developed.
· The nature of the sexual activity intended.
· Whether any inducements were offered, including alcohol or money, or any threats were made.
· Whether the person was a real person.
· The age and power differential between the victim and the offender.
· The nature of any prior relationship between the offender and the victim.
· The offender’s level of awareness and deliberateness in their communicating.
· Whether the recipient was susceptible to act in the way described by the offender.
· The planning and sophistication involved in the offence, including any steps taken by the offender to protect his anonymity;
(c) It was considered that, in considering the various sentencing principles and considerations, the present offending was “objectively very serious” for the following reasons:
(i)The maximum penalties for the offences provided are an unequivocal indication that they are viewed by Parliament as being very serious.[32] Charge 1 carries a maximum term of fifteen years’ imprisonment and Charge 2 attracts a maximum term of twenty years’ imprisonment and a mandatory minimum head sentence of 5 years’ imprisonment.
[32]See Elias v R; Issa v R (2013) 248 CLR 483 at [27]; Markarian v R (2005) 228 CLR 357 at [30]-[31]
The overall offending includes two separate charges covering two distinct and discrete offence types, namely procuring and attempting to engage in sexual activity with a child believed to be under sixteen. In this sense your communication so it was submitted, with “Skyler”, the subject of Charge 1, took place over the instant messenger application “Chatwi”, but progressed to personal telephone contact in Charge 2;
(d) It was submitted that the offending in Charge 1 is objectively serious given:
· It was you who initiated communication with “Skyler”.
· You disguised your identity and age.
· Your use of the moniker “policeman” conveyed an initial impression of safety or legitimacy.
· You were aware of “Skyler’s” purported age of fourteen at the outset, yet continued with the communications. When “Skyler” reminded you she was fourteen, you wrote “fuck want to see your breasts” and “iam (sic) so horny”.
· You sent “Skyler” messages, including with sexually explicit comment and descriptions, which were intended to procure her for sexual activity and to make your sexual objectives clear.
To submit that the sexually-explicit nature of the language and descriptions used in communications increases the seriousness of the offending, as these assist your objective of securing the victim’s participation in sexual activity. And by not only introducing the victim to the offender’s objectives and normalising the content, but by testing whether material sent provokes an adverse reaction to the recipient.
There was an age difference of some fifty-four years between you and “Skyler”, who you believed to be a child aged fourteen. The significant age difference also reflects an imbalance of life experience and maturity, which is a matter to which the Court should attract some weight.[33]
Charge 2 covers the subsequent phone conversation of approximately twenty-three minutes to “Skyler” on the same day, to which you masturbated during the telephone conversation. At the outset of the conversation, you told 'Skyler' that you were masturbating and you used extremely graphic descriptions to describe to her what you were doing. At the conclusion of the conversation, you asked “Skyler” if she heard what you were doing and she asked what the sound was, and you replied “I was rubbing my cock because it was so hard”.
[33]See Tector v R (op cit) at paragraph [94]
Conclusion
79You have pleaded guilty on two charges, both of which involve sexual offending with people you believe to be under sixteen years of age. To wit you used a carriage service to transmit a series of communications to the recipient “Skyler” (a police operative) who you believed to be under sixteen years of age and, later you attempted to engage in sexual activity with “Skyler” using a carriage service, this time a telephone.
80Any offence involving sexual offending with children is inherently serious and, indeed, the penalties in relation to the charges to which you have pleaded guilty, respectfully fifteen years and twenty years with a mandatory minimum head sentence of five years, make clear that the offending is very serious.
81Your initial series of communications took place over the instant messenger application “Chatwi” and were explicitly sexual from the beginning of that conversation. It was clear enough that you were seeking to procure “Skyler” for sexual activity. The first charge runs effectively into the second charge, as Skyler telephoned you shortly after your conversation with her via the computer and it was during this conversation that you audibly masturbated as you spoke to her on the telephone.
82As submitted by counsel for the prosecution, such offending is objectively serious.
83However, within that band of objectively serious offending, there are various factors which differentiate between high level, mid-level and low-level types of offending.
84Indeed, in her detailed submissions, counsel for the prosecution as I stated earlier, set out various factors of what was said to be of central relevance in assessing the seriousness of offending involving online child exploitation. I note the following:
(a) The number, length and type of conversations between the offender and victim.
In the circumstances of this matter, the offending consisted of you, on
8 July 2021, transmitting a series of communications by way of computer to the recipient “Skyler”, someone you believed to be under sixteen years of age. This activity lasted for about an hour and a half, with various breaks over that time. Furthermore, the activity led into the circumstances of Charge 2, whereby “Skyler” rang you and you masturbated and spoke again in a very sexual manner to “Skyler”, with her able to hear you masturbating. The evidence before the Court is that the telephone conversation took place for about twenty-three minutes. Your offending does not extend to other days or other conversations between you and “Skyler”;
(b) The frequency of conversations and level of persistence by you.
I have already detailed the extent of the conversations and there is no level of persistence by you in the sense of needing to repeat yourself to have any activity undertaken;
(c) The nature of any sexual material communicated.
There can be no doubt that the content of your conversations with “Skyler” were explicitly graphic and sexual from the very beginning;
(d) The extent to which the intent to engage in future activity with you was exposed and developed.
There is no evidence of any intention on your part to meet “Skyler” or to develop further activity with her;
(e) The nature of the sexual activity intended.
There was an attempted offence and the sexual activity involved your masturbation effectively in the presence of “Skyler”;
(f) Whether any inducements were offered, including alcohol or money, or any threats were made.
There is no evidence of any inducements being offered, alcohol or money and no threats were made;
(g) Whether the victim was a real person.
In these circumstances, the 'victim' was a police operative but, of course it must be borne in mind that, at the time you considered you were talking to a young girl who had stated her age to be fourteen;
(h) The age of power differential between the victim and you.
There is clearly a large power differential between the two of you and indeed, as submitted by counsel for the prosecution, such an age difference represents an imbalance in life experience and maturity, which is a matter the Court should attach some weight, reference was made to Tector v R;[34]
(i) The nature of any prior relationship between you and the victim.
On the evidence, there is clearly no prior relationship between you and the victim;
(j) Your level of awareness and deliberations in the communication.
It is clear that you were well aware of what you were doing and the deliberateness in your communication with the victim;
(k) Whether the recipient was susceptible to act in the way described by you.
There is no direct evidence of this issue;
(l) Your sophistication involving the offence, including the steps taken by you to protect your anonymity.
In this respect again, counsel for the prosecution submitted you disguised your identity and age and used the moniker 'policeman' to convey an initial impression or safety or legitimacy.
[34](Op cit) at 94
85Taking all of these matters into account, I consider that the offending, frightful as it was falls into the low to middle range of this type of offending. In particular, it was limited to a relatively short period, there was no physical contact with the victim and no plans to meet with the victim.
86In relation to mitigating factors, I accept the submissions of your counsel in relation to your early plea, the application of Verdins’ Principles 5 and 6, the hardship that you will have in prison. And, by that, I mean you are entering prison as a former policeman of relatively high rank convicted of serious sexual offences and being someone well known in the world of karate (likely to make you a target). And the hardship pertaining to concerns about your wife in particular and, to a lesser extent your daughter.
87
I also consider that you, to some extent, you were helpful to the authorities. Certainly initially, when the warrant was executed at your premises. However, I do not accept that you were fully helpful to the authorities, in that in your record of interview you downplayed certain aspects of your offending and was vague about the circumstances surrounding it. I also consider that any evidence in relation to remorse is, at best scanty. Although accepting that both your early plea of guilty probably does give some basis for suggesting you do have some degree of remorse, it is to be remembered that Mr Newton is of the opinion that you were capable of expressing shame and regret for the impacts of your arrest,
preoccupation and prosecution upon your wife and daughter. However, when asked for your response to the incident, you could not be “meaningfully engaged in a discussion of the impact of such sexualised chat with young people, or the potential effects on the undercover operative”.
88
It is also to be noted that neither Mr Newton nor indeed, Dr Burrows, who treated you for a short while, could get you to engage or talk about the actual offending itself. You were willing to talk about your depression, anxiety and the like, and how it affects your family, but would not enter into a discussion about the subject offending. No doubt, partly for this reason Mr Newton, although noting that the offending was serious, in psychological terms, he could not delve into the psychological mechanisms which drive such activities. And ultimately was only able to say on the material before him, that you have no less than a “moderate” chance of re-offending. In this respect, I consider that your prospects for rehabilitation are guarded. Partly because it is not clear what psychological mechanisms are at work. And secondly, although you did commence treatment with Dr Burrows, this was relatively short lived and indeed, it is to be noted that
Dr Burrows also had difficulty about discussing the circumstances of the offending.
89Your counsel submitted your reluctance to talk about the circumstances of your offending or indeed, express profound remorse, can be explained by Mr Newton’s description of you as someone who is socially awkward and pathologically introverted, with a very limited desire for closeness with others and social interaction. Mr Newton described this as a hallmark of a personality disorder.
90Further, your counsel raised the spectre that such personality traits, as described by Mr Newton, are consistent with the difficult earlier life you had being brought up by a mother who gave beatings in relation to small infractions and was a disciplinarian with you and your siblings.
91Although I accept what Mr Newton described, and which you explained that you felt better in a chatroom than dealing with people directly. I do not accept that any relationship can be drawn from your childhood experience or the way you were treated by your mother. Again, it must be borne in mind that you have led seemingly, a blameless life, rising to the high rank in the police force, and conducting a very successful karate business. Mr Newton draws no connection between your upbringing and your present personality traits.
92I should add that, although prior good character in relation to sexual offending does not carry the same weight as perhaps in other situations. It is relevant in determining an appropriate sentence that, for sixty-eight years in your life, you seemingly did not involve yourself in the type of activities which brought you before the Court. And indeed over the years when teaching children karate as described by the lay witnesses, I give some weight to such a past record.
Disposition
93After a consideration of all of the material before me, I intend to convict you in relation to both charges and order immediate sentences of imprisonment. I intend to make Charge 2 the main charge and there will be some cumulation of the sentence in relation to Charge 1, as I consider that, although the circumstances of Charge 1 run into the circumstances of Charge 2, each of the offences are concerned with different activities: Charge 1, procuring the victim and Charge 2, sexual activity.
94Although I do not consider that the seriousness of your offending is at the lowest level, I do consider it is relevant to apply the principle in Rex v Taylor.[35] I referred to details of this judgment earlier before and in indeed, where the New South Wales Court of Criminal Appeal held, inter alia. That there is no legislative prescription that the mandatory minimum penalty can only be imposed where the offence in respect of which the sentence is to be passed is (expressly) characterised as 'the least serious category of offending. And that the minimum sentence has been legislatively prescribed, it must operate as a yardstick. Although minimum terms import an additional constraint in the evaluation of proportionality, it does not eliminate proportionality as an important sentencing consideration.
[35]Op cit
95Bearing in mind the various matters which go to the seriousness of the offending and the various mitigating factors to which I have found, I consider that five years’ imprisonment should be identified as the range between five years and twenty years.
96I also refer to s16AAC of the Act and, in particular, sub-s(2) and sub-s(3), which provide for specific reductions below the mandatory minimum term to accommodate an offender’s plea of guilty. And any assistance to authorities in the circumstances where the low-level offending and applicable mandatory minimum sentence prevents this from occurring.[36]
[36]See, generally, Glasheen v R (op cit) at paragraphs [14]-[15]
97In particular, I intend to reduce the mandatory minimum sentence by, initially, twenty five per cent, to accommodate a reduction in respect to the guilty plea pursuant to s16A(2)(g) of the Act. And a further ten per cent to accommodate recognition of your cooperation of the kind specified in s16AC(2)(b) of the Act.
98I consider your plea of guilty and the accompanying utilitarian effect was of significance, given the time that such plea was made and the circumstances surrounding it. I also consider that you clearly helped the authorities, initially in terms of when they attended to execute the warrant at your premises - however, I do not consider that you were not as forthcoming to the authorities when you underwent your formal record of interview.
99Twenty-five per cent of the mandatory sentence is one year and three months, and ten per cent is six months which leaves the mandatory minimum sentence to be three years and three months. Please be upstanding.
(a) In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of one year, six months;
(b) In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of three years, three months (main sentence);
(c) I direct that your sentence in relation to Charge 2 commenced on 28 February 2023;
(d) In relation to Charge 1, I direct that your sentence commence, on 28 May 2025;
(e) The total effective sentence is three years and nine months and I order that you serve a non-parole period of two years and three months;
(f)
I further order that you be registered as a “registrable sex offender” pursuant to the Sex Offenders Registration Act 2004 and you will be required to comply with the reporting obligations of that Act for
15 years.
---
2
17
0