R v Adams
[2018] ACTSC 333
•24 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Adams |
Citation: | [2018] ACTSC 333 |
Hearing Dates: | 6 July 2018, 2 August 2018 |
DecisionDate: | 24 August 2018 |
Before: | Burns J |
Decision: | See [53]-[61] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit communications to a person who was under the age of 16 years with the intention of procuring that person to engage in sexual activity – engaging in sexual intercourse with a person under the age of 16 years – pleas of guilty – defence to a charge under s 55(2) of the Crimes Act 1900 (ACT) that an accused believed on reasonable grounds that the person was of or above the age of 16 years – any matter of fact which makes an offence more serious must be proved to the standard of beyond reasonable doubt – any fact which tends to mitigate the offence must only be proved on balance of probabilities – wilful blindness – objective seriousness – sentencing considerations – subjective features – sentences of imprisonment imposed – non parole period |
Legislation Cited: | Crimes Act 1900 (ACT) s 55(2) Criminal Code Act 1995 (Cth) s 474.26(1) |
Parties: | The Queen (Crown) David Adams (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) David Thomas Adams (Offender) | |
File Number: | SCC 81 of 2017 |
BURNS J:
David Adams, you appear before me today for sentence with respect to the following charges, which were included on an indictment dated 6 June 2017:
· Count 1 - using a carriage service between 11 August 2016 and 28 November 2016 to transmit communications to a person who was under the age of 16 years with the intention of procuring that person to engage in sexual activity with yourself, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code);
· Count 3 - on 14 August 2016 engaging in sexual intercourse with SI, being a person under the age of 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act);
· Count 4 - on 27 September 2016 engaging in sexual intercourse with SI, being a person under the age of 16 years; and
· Count 5 - on 27 November 2016 engaging in sexual intercourse with SI, being a person under the age of 16 years.
The offence under the Commonwealth Criminal Code carries a maximum penalty of 15 years’ imprisonment. The offence of engaging in sexual intercourse with a young person contrary to s 55(2) of the Crimes Act carries a maximum penalty of 14 years’ imprisonment. On 29 November 2016 you were charged with these offences in the Magistrates Court. You entered pleas of not guilty, and a brief of evidence was prepared and served on you. On 4 April 2017 you were committed for trial through this Court.
An indictment dated 6 June 2017 containing five counts was filed by the prosecution. On 30 October 2017 the charges were listed for a one-week trial commencing on 19 March 2018. The pre-recording of the child complainant's evidence was listed for 1 February 2018. On 31 January 2018 the child admitted that he had not told the police the whole truth in his first interview, and arrangements were made for him to participate in a further pre-trial evidence interview with police which took place on 1 February 2018.
The scheduled pre-recording of the child's evidence did not take place that day, and was adjourned to 22 February 2018. On 19 February 2018 the transcript of the further evidence‑in‑chief interview with police was served on your lawyers. On 22 February 2018 the pre-recording of the child's evidence was adjourned to 6 March 2018. On 5 March 2018 you advised the prosecution that you would plead guilty to the present charges. On 6 March 2018 you formally entered pleas of guilty to the four charges now before me in full satisfaction of the indictment dated 6 June 2017.
Your pleas of guilty cannot be described as early pleas. They were formally entered on the day that the child was to give pre-recorded evidence, and 13 days before the date listed for the commencement of your trial. Your counsel submitted that the timing of your pleas should be assessed in the context of the child having maintained a false version of events until February 2018. It was, however, open to you to plead guilty to the present charges on the basis of the facts that have now been accepted, and to dispute any aggravating circumstances which may have been alleged by the Crown. As such I do not accept that your pleas should be treated as early pleas of guilty. I accept that your pleas, nevertheless, had utilitarian value. I will reduce by approximately 12 per cent the sentences that would otherwise have been appropriate in order to reflect your pleas of guilty.
The facts
I will now turn to the facts. In about mid-2016 the child, SI, then in Year 8 at school, set up an account on the social networking app called ‘Grindr’, a network geared towards gay and bisexual men, and designed to help them meet other men.
In setting up his account the child ticked a box on the screen stating that he was over 18 years of age. The Grindr app works in such a way that it allows users to locate other similar minded users who are located nearby. The app allows users to chat, that is to send messages to each other, and also to send pictures. At this time you were a Grindr user with the user name "Daddy's Home", and you listed your age as 46 years old.
In your profile you stated that you were a "horny daddy looking for slutty Twinks” for sex. The Statement of Facts states that a "daddy" is an older male who is interested in sexual relationships with younger males. A "twink" is a younger person. The child saw your profile and was interested, and started sending messages to you. You replied to these messages, and you and the child engaged in text conversation. In about August 2016 you and the child exchanged mobile phone numbers, and started sending text messages direct to each other’s phones.
At about 5.30 pm on Friday, 12 August 2016 you were speaking over the phone with the child before he abruptly hung up on you. At about 5.39 pm that evening the child sent you a text message apologising and saying that his mother had come into the room and asked whether he could call you later. During a conversation on Grindr later that evening you and the child agreed to meet up the following day for sex. At about 12.38 am the next morning, you engaged in sexually explicit text messages with the child who referred to you as "daddy".
10. Further explicit text conversations occurred throughout the day on 13 August 2016. In a text conversation that occurred at about 6.00 pm that day you encouraged the child to insert an object into his anus, to take a photograph, and to send it to you. The child attempted to send the photos to you, but you told him that the photos did not come through, and you told him to put them on Grindr where you could see them. At one point the child told you he would have to call you later because he was having dinner.
11. Later you sent two MMS messages to the child containing photos of your erect penis. Further sexually explicit text conversation took place. You did not meet the child on 13 August 2016, but you made arrangements to meet him the next day on Sunday, 14 August 2016. You arranged to meet the child at 5.30 pm on 14 August at an oval near the child's home. You drove your car to the oval where you met the child. You both got into the back seat of the car where the child performed fellatio on you. The child then got out of the car and walked home. These events form the basis of Count 3.
On 17 August 2016 you sent a further text message to the child asking if he wanted to have some more ‘car fun’ that weekend. The child, however, did not respond until 5 September 2016, indicating that he was interested in further sexual activity with you. You and the child continued to exchange sexually explicit text messages.
13. You also sent the child photographs of your erect penis and your anus. You and the child talked about how you would organise your next meet-up, and how the child would get away from his parents. In that context the child told you that he would make an excuse, clearly indicating that he would make an excuse to his parents. At about 5.09 pm on Tuesday, 27 September 2016, the child contacted you by text message asking if you could meet.
14. You arranged to meet that afternoon at the same place where you had met previously in the car. You asked the child if he wanted to bring a dildo. At about 5.27 pm that afternoon, the child sent you a further text message telling you to hurry, and that it would have to be pretty quick because he needed to be home by 6.05 pm. You drove your car to an oval where you met the child, and you both got into the back seat.
15. The child performed fellatio on you, before you ejaculated on your own stomach. During this, you put your hand on the child's bottom and felt around. The child then got out of the car and walked home. These events are the basis of Count 4. Further explicit text messages were sent by you to the child, however he did not immediately reply. It was not until 18 October 2016 that the child sent you a text message stating that he was horny, and asked if you had any friends that might be interested in joining the two of you.
16. You replied with a text message making suggestions about sexual activity that the two of you could engage in. You sent the child another photo of your penis. You and the child then continued to exchange explicit text messages, including further photos of your penis, as well as other sexually graphic photographs. On 23 October 2016 you and the child exchanged further explicit text messages. The child asked whether someone was going to join the two of you, and you said that you were still trying to find a third person.
17. Later that afternoon you sent a text message to the child asking if he was free that afternoon because you had an 18‑year‑old boy whom you referred to as ‘F’ looking to join you. You then sent the child a photo of F posing with his shirt off. On the same day you sent a message to another Grindr user saying, "You into topping younger guys. ? I have a young twink I play with occasionally , a teen.. who wants to do group and be spit roasted this afternoon by myself and another guy at my place [sic]." That other user did not reply.
18. You also sent a text message to F stating that you were trying to find someone to do a threesome with the child. F stated that he could not do that night. You sent F a photo of the child's face stating he was cute. You then told F how you met the child stating, "I found him on grindr Or he found me.. haha… He Said how young would I go ? I said You’d have to be legal 16 He Said he was 15 &, 10 months would I still fuck him [sic].”
You then stated, "He showed me his pic I Said yes I. would. He Said he’d skype for me to start with… I instructed him He jerked off & fingered himself for me in his bathroom while his parents were outside He then Cum & ate it for me He’s a little hottie [sic]." On 30 October 2016 you sent the child a further text message saying that you had had sex with F, and that you were both hoping to have sex with SI soon. It was not, however, until Friday 25 November 2016 that the child got in contact with you.
20. He told you that he wanted to have sex the following day, and had a place where you could go because he was house sitting for a while. He gave you the address, and you agreed to meet the following day. The child then sent you a photo of his erect penis, and asked for photos of your penis. You responded by sending him three photos of your erect penis. You and the child continued to exchange explicit text messages, graphically detailing the sexual activity you would like to engage in.
21. At about 3.09 pm on Saturday, 26 November 2016 you sent a text message to the child stating that you were free for the rest of the day. However, he did not reply. At about 5.13 pm on Sunday, 27 November 2016 the child sent you a text message apologising for not contacting you the day before. You asked whether you could meet now, and the child replied to the effect that he did not have the keys to the house, but there was a couch in the backyard.
22. The child told you that he was supposed to be doing jobs, and his mother and father might come up and get him. He said that any sexual activity might have to be restricted to a blow job. He then told you that his father had arrived and that you should not come. At that time the child was finishing up after mowing the lawn and watering the garden at a neighbour's house while the neighbours were away. The child's father had been helping him with the mowing. You sent a further text message to the child asking whether he could sneak out later.
23. He said that he could not because he had to study. You and the child continued to exchange text messages, and agreed to meet the following Tuesday. You then sent the child a photo of your penis. Further explicit text conversations then occurred. At about 7.23 pm that day the child sent you a message telling you to come over to the house quickly. The child stated that he had just told his father, who had returned home, that he was packing up. You agreed, and the child told you to hurry, and to park your car a bit down the street so as to avoid suspicion.
24. At about 7.41 pm that day you arrived and walked through the side gate into the backyard of the house. You sat down on the couch in the back yard and the child performed fellatio on you for about four or five minutes. This is the basis for Count 5. Shortly after, the child's father walked into the backyard and observed what was happening. When you became aware of the child's father's presence you ran towards the back fence, pulling up your shorts while you were running.
25. The child's father ran over to you and asked you what was going on, but you refused to answer. The two of you started wrestling, and the child's father called out to the child to call the police. The child's father continued to ask you who you were, and what you were doing. At some point you stated that you had met the child on Grindr. The child's father told you that the child was 14 years old, but you disputed that and stated that he was an adult.
26. While this was occurring the child rang police and told them that there was a rapist in the house who had made him suck his penis and he did not want to. The child told police that it was a random person who came in off the street. The child then went out the front of the house and waited for police. In the meantime you managed to get away from the child's father and ran to the front of the house, and took off down the street. The child's father caught up with you in the street and tripped you. There was then a further heated conversation after which the police arrived.
Between 12 August and 27 November 2016 you and the child exchanged 598 text messages. Your numerous text messages, Grindr messages, Skype and telephone calls to the child encouraging him to engage in sexual activity with you are the basis for Count 1.
28. Later on the evening of 27 November 2016 the child went to the police station and was interviewed by police. He maintained his earlier version that you had forced him to have oral sex. The Statement of Facts records that he did so because he did not want the police or his family to find out what had really been going on, and was scared that his parents would be shocked and ashamed of him. Police took photos of the child to show his appearance at that time. You took part in a recorded interview with police the same night where you made admissions to meeting the child, and to the child having previously performed oral sex on you.
29. You told police that when you first met the child he looked quite boyish with quite a slim build, and looked quite young even for a 16 year old. You said that it was naivety on your part that you believed him to be 16 years old. The child essentially maintained his false version of events until February 2018. You have consistently maintained that at the time of these events you believed the child to be aged 16 or older.
30. It is a defence to a charge under s 55(2) of the Crimes Act of engaging in sexual intercourse with a person under the age of 16 years that an accused believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years. As I understand your evidence and the submissions that have been made on your behalf, you maintain that you had a genuine belief that the child was aged 16 or older, but you accept that that belief was not based on reasonable grounds.
31. You were cross-examined extensively by the Crown on this issue. The Crown cross‑examined you not only with regard to your communications with the child the subject of the present charges, but also with regard to other conversations that you had with other Grindr users. Your counsel objected to the Crown leading evidence of these conversations with other Grindr users, but I am satisfied that they are relevant to the present proceedings in that they may rationally affect the determination of a fact in issue, being your state of mind regarding the age of the child at the time of the commission of these offences.
32. The Crown submitted that these further conversations with other Grindr users revealed your willingness to engage in sexual activity with boys under the age of 16. This is relevant given your evidence that you were not willing to engage in sexual activity with a child who was, to your knowledge, under the age of 16. In addition, the Crown relied upon parts of these conversations as admissions by you that you knew that SI was under the age of 16.
33. The Crown alleged that some of the statements you made in the course of those conversations related to your activities with SI, albeit that he was not named, and revealed that you knew that he was under the age 16. I am not persuaded that any of the statements made by you in the course of these conversations with other Grindr users do constitute an admission that you were aware that SI was under the age of 16.
34. It is fair, however, to say, taken at face value, that the statements made by you in the course of these conversations suggest that you were sexually attracted to young males including young males under the age of 16 years, and that you are willing to engage in sexual activities with boys as young as 14. You sought to explain this material by suggesting that you had adopted an edgy persona on Grindr, that you were presenting yourself as a risk-taker in order to attract other Grindr users.
35. It is well recognised that any matter of fact which makes an offence more serious must be proved to the standard of beyond reasonable doubt, and that any fact which tends to mitigate the offence must only be proved on balance of probabilities. Your explanation for the content of these conversations with other Grindr users may possibly be correct, but I am not persuaded on the balance of probabilities that it is the truth. It may or may not be the truth.
36. I am not, however, persuaded beyond reasonable doubt that the statements made by you in the course of those conversations constitute admissions to other sexual offending against underage boys. The Statement of Facts does not allege that SI told you that he was under the age of 16. Indeed it appears that he deliberately sought to portray himself as at least 18 years of age so as to be able to access the Grindr app. There were, however, a number of very clear red flags indicating that SI may well be under the age of 16. These included that you were well aware that he was living with his parents, you were aware that he was concerned to hide his activities from his parents, you were aware that the child had difficulty getting away from his parents and his home to engage in sexual activity with you, you knew that the child was still at school, and the physical appearance of the child suggested that he was very young.
None of those matters by themselves would be inconsistent with SI being 16 years of age or older, or you having a belief that that was the case. In combination, however, I have no doubt they raised in your mind the question of whether SI was of or above the age of 16. In your evidence you stated that you asked SI to produce identification to prove his age but he made excuses as to why he could not.
You accepted that you should have insisted upon him providing you with identification to prove his age if you were engaged in sexual activity with him. Your action of asking SI to produce identification clearly shows that it had occurred to you that he may be under the age of 16. Having seen photographs of SI taken on 27 November 2016 I have no doubt that it occurred to you that he may well have been under the age of 16. He was clearly a very young looking male.
39. On your own evidence you were seeking to present yourself on Grindr as a risk‑taker, as someone who is prepared to break the rules and to engage in sexual activity with males under the age of 16. Your username was calculated to appeal to young males who were seeking sexual activity with older males. The same may be said with respect to your profile. It is impossible to believe that you did not turn your mind to the potential attraction of this persona to young, underage males seeking to engage in sexual activity with older men.
Having presented yourself as someone willing to engage in sexual activity with underage males, it is obvious that among the people attracted to your profile may be underage males. You may not have known that SI was under the age of 16 in the sense that he may not have told you, but I have no doubt that you were well aware of the strong possibility that he was. I do not accept your evidence that you held a positive belief that SI was 16 years of age or older. I am satisfied that it was convenient to you to simply turn a blind eye to the question of his age. This wilful blindness on your part to the age of the child does not operate to mitigate your culpability.
Objective seriousness
The maximum penalty provided for each of these offences demonstrates how seriously the community considers this type of offending. Sexual offending against children is abhorrent and the community rightly expects its courts to protect children and punish offenders. The offence of using a carriage service to procure SI to engage in sexual activity is a serious example of this type of offending. It continued over some three months and involved nearly 600 separate communications, many of which were extremely explicit, contained explicit photographs, or encouraged the child to engage in sexual activity. I see nothing in that material to suggest that you had any real emotional attachment to SI. Your motive for engaging in this conduct was simply sexual gratification.
42. With regard to each of the charges of engaging in sexual intercourse with SI, I note that each offence was constituted by you placing your penis in the mouth of the child. On each occasion you withdrew your penis before ejaculation, but you did not use a condom. This of course increased the potential risk to the child of infection with a sexually transmitted disease. I also see nothing in the circumstances in which these offences occurred to suggest any emotional attachment on your part to the child. You motive was again simply sexual gratification.
43. A significant factor in determining the objective seriousness of each of these offences is the age of the child. At 14 years of age it may be expected that SI was still coming to an understanding of his sexuality. Your conduct engendered predictable and understandable confusion in the child. It should also be observed that you sought to present yourself as a father figure, encouraging SI to refer to you as daddy, and referring to him as son.
44. While you were not in a position of trust with regard to SI, this was an approach calculated to attract vulnerable young men and to suggest to them that the relationship with you had characteristics similar to those of a father‑son relationship, in particular that they could trust you. Nothing could have been further from the truth. You were not interested in any sort of emotional or protective relationship with the child. Your only interest in him was as an object for sexual gratification. Each of these offences may be described as falling within the mid‑range of offences of this type. In my opinion your moral culpability with respect to these offences is very high.
Subjective features
I now turn to your subjective features. You are currently 53 years of age and have no relevant prior convictions. A Pre‑Sentence Report for the sentence hearing states that you reported a positive childhood free from trauma and neglect. You continued to enjoy positive relationships with your parents and eight siblings, but you have not told them of these charges. You married in 1992 and separated in 2001 after having three children now aged 18, 21 and 25 years. You describe the separation as amicable and indicated that although your former wife and children were shocked to hear of these offences, they have all remained supportive.
46. You reside alone in private rental accommodation. You left school during Year 11 to commence an apprenticeship in commercial cookery, and worked as a qualified chef until changing careers to work in logistics. You now work for a pathology firm in a management position, but you have not informed your employer of these charges. You are currently an undischarged bankrupt. You have no alcohol or drug issues that need to be addressed.
47. You were previously involved in rugby league refereeing, but your Working with Vulnerable People Clearance was suspended as a result of these offences. You do not anticipate being able to return to this activity, which is a significant loss for you as you were previously involved for over 25 years. You have no mental or physical health issues.
48. You maintained to the author of the report that you believed SI was 16 years of age, but accepted that you did not do enough to verify his age. You were able to articulate why laws regarding age of consent exist, particularly of the need to protect young people and the damage that can be caused to victims by these offences. You were assessed as at moderate to low risk of sexual re-offending. It was recommended you engage in treatment for your sexual offending in order to reduce any risk of re-offending.
49. I take into account a letter from your eldest daughter dated 3 July 2018. It speaks of you being a consistent and positive presence in the life of your family, particularly your children. She describes you as a caring, generous and selfless man. She described being utterly shocked by these offences which do not fit with her idea of who you are as a person or her experience of you. She describes you as an upstanding, well‑respected member of the community. She says that you have expressed deep remorse and shame, and you have acknowledged responsibility for your actions.
50. I accept that you assisted police by participating in a record of interview in which you made admissions to sexual activity with the child. Whether this demonstrates remorse is problematic because you maintained to police your position that you believed SI to be 16 years of age or older. In addition, when you participated in the interview with police, it was in circumstances where the child was maintaining that you had sexually assaulted him and that he had not consented to any sexual activity. Your participation in the interview must be seen in the context of having to deflect an allegation of non‑consensual sexual assault.
51. The predominant sentencing considerations for sexual offences against children are deterrence, punishment and denunciation. In this particular case both general and specific deterrence are important considerations. It is important that any sentences I impose be such as to deter you and others who may be minded to engage in such conduct. I accept that you have expressed a degree of remorse to your family and to the author of the Pre‑Sentence Report, but I am also satisfied that you have not accepted full responsibility for your actions, and you have attempted to minimise your personal culpability by maintaining that you had a belief that SI was of or above the age of 16.
52. You have a number of protective factors such as employment and family support that suggest that you have reasonable prospects for rehabilitation. Despite those prospects, the seriousness of the offence leads me to conclude that nothing less than immediate terms of imprisonment are appropriate with regard to this offending.
Sentence
53. With regard to Count 3 (XO2017/31142), I record a conviction and you are sentenced to 21 months' imprisonment, which I have reduced from two years by reason of your plea of guilty. Such sentence is to commence today, 24 August 2018, and expire on 23 May 2020.
With regard to Count 4 (XO2017/31143) I record a conviction and you are also sentenced to 21 months' imprisonment, which I have reduced from two years by reason of your plea of guilty. Such sentence is to commence on 24 April 2019 and expire on 23 January 2021.
With regard to Count 5 (CC2016/12405) I record a conviction and you are sentenced to 21 months' imprisonment, which I again have reduced from two years by reason of your plea of guilty. That sentence will commence on 24 December 2019 and expire on 23 September 2021.
56. With regard to these offences, which are offences under the laws of the Australian Capital Territory, I set a non-parole period of 16 months commencing today, 24 August 2018, and expiring on 23 December 2019.
57. With respect to the Commonwealth offence, Count 1 (XO2017/31140), I record a conviction and you are sentenced to 18 months' imprisonment, which I have reduced from 21 months by reason of your plea of guilty. That sentence will commence on 24 December 2019 and expire on 23 June 2021.
58. On this Commonwealth matter I am obliged to set a separate non parole period, and I set a non-parole period of five months commencing 24 December 2019 and expiring on 23 May 2020.
59. The aggregate head sentence for both Territory and Commonwealth matters is therefore three years and one month imprisonment commencing today, 24 August 2018, and expiring on 23 September 2021.
60. The aggregate non parole period for both Territory and Commonwealth matters is 21 months, commencing 24 August 2018 and expiring on 23 May 2020.
61. I make the confiscation order with respect to the phones.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 20 June 2019 |
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