R v Amson

[2021] NSWDC 280

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Amson [2021] NSWDC 280

Hearing dates:

23 June 2021

Date of orders:

24 June 2021

Decision date:

24 June 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 114 - 116

Catchwords:

CRIMINAL LAW – sentence – federal offence – use of carriage service to groom child under 16 years for sex – objective gravity – relevance that communications with fictitious child rather than real child – significance of contact being initiated by fictitious child rather than offender – offence committed while registered sex offender – whether offender’s culpability affected by mental abnormality - whether offender genuinely remorseful – appropriate discount for guilty plea ­– consideration of risk of re-offending – prospects of rehabilitation – whether offender victim of extra-curial punishment – consideration of comparable cases

Legislation Cited:

Child Protection (Offenders Registration) Act2000 (NSW)

Crimes Act 1914 (Cth) s 16A, 17A

Criminal Code (Cth) s 474.27(1)

Cases Cited:

DPP v Watson (2016) 259 A Crim R 327

Hili v R (2010) 242 CLR 520

Meadows v R [2017] VSCA 290

R v Fuller [2010] NSWCCA 192

R v Nahlous (2013) 273 FLR 232

R v Pham (2015) 256 CLR 550

Rampley v R [2010] NSWCCA 293

Small v R [2020] NSWCCA 216

Veen v The Queen (No.2) (1988) 164 CLR 465

Xiao v R (2018) 96 NSWLR 1

Texts Cited:

S Odgers SC, Sentence (5th ed, 2020, Longueville Media Pty Ltd)

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions
Mr A Amson (offender)

Representation:

Counsel:
Mr S Duggan for the Commonwealth Director of Public Prosecutions
Mr J Martin for the offender

Solicitors:
Commonwealth Director of Public Prosecutions
Mr J Taylor for the offender

File Number(s):

2020/135061

Publication restriction:

Nil

SENTENCING REMARKS

1. The offender is to be sentenced, following a guilty plea, to the offence that between 17 March 2020 and 4 May 2020, he used a carriage service to groom a person believed to be under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth).

2. The offence carries with it a maximum penalty of 12 years’ imprisonment.

3. The guilty plea was entered on 3 May 2021, being the first day of the scheduled trial date. In the circumstances that occurred, the trial would not have commenced on that day before English DCJ.

4. The appropriate sentencing regime for the offence is Part 1B of the Crimes Act 1914 (Cth) (the ‘Act’) and, in particular, the considerations referred to in s 16A(2) of the Act, to the extent that they are relevant and known. That said, common law principles of sentencing, such as those identified in Veen v The Queen (No.2) (1988) 164 CLR 465 at 476 continue to apply to the sentencing for federal offences (Hili v R (2010) 242 CLR 520 at [25]). One of those principles concerns the protection of the community. Another is the need to denounce the offending.

Nature and circumstances of offending (s 16A(2)(a))

Circumstances of offending

5. The circumstances of the offending were the subject of agreement. An extensively chronicled set of ‘Agreed Facts’ were before the Court as part of the Crown’s sentencing bundle (Exhibit A); although it might be more accurate to characterise them as a detailed evidentiary compilation of excerpts of many conversations, running over the months of the offending, which the offender agreed with, rather than a concise statement of (material) facts. This form of presentation did not efficiently aid the Court’s determination of the sentencing proceeding. At any rate, what follows is a summary distilled from those ‘facts’.

6. In March 2020, the Child Exploitation Internet Unit of the NSW Police commenced a covert online investigation in relation to the offender’s online activity. Investigators used an assumed, ie fictitious, online identity of a 13-year old female child, referred to in the agreed facts as “CEIU 41”.

7. CEIU 41 initially contacted the offender through his Facebook profile, where the offender utilised his name as his screen name. Conversation later moved to Skype, where the offender also used his name as his screen name.

8. From 17 March 2020 to 4 May 2020, CEIU 41 and the offender engaged in conversations. CEIU 41 initiated these communications, initially on Facebook.

9. On 18 March 2020, the offender advised CEIU 41 that he was 39 and twice asked CEIU 41 whether this was “a setup. I’m no pedophile (sic)”. The offender also asked whether CEIU 41 thought it appropriate to "talk to a 39 yr old man". During this conversation, CEIU 41 disclosed that ‘she’ was 14 years old.

10. On 19 March 2020, the offender initiated communications, querying, amongst other things, whether CEIU 41’s ‘parents’ would think that they were talking and warning ‘her’ that “there are predators out there (who) prey on young children”. The offender said that he was ‘so cautious’ about talking to someone so young.

11. On 20 and 22 March 2020, the offender contacted CEIU 41 asking ‘her’ “don’t you want to chat anymore?” and “how are you?” but he received no responses.

12. On 25 March 2020, the offender asked CEIU 41 whether ‘she’ wanted to chat and the latter indicated that she had been busy. The offender then said “Yea I kno (sic)". Thought you may have found a bf (boyfriend)”. The offender also revealed that he had been stood down from work due to the COVID-19 Pandemic. This supported the offender’s later submissions about his circumstances at the time of the offending. CEIU 41 expressed sympathy.

13. The offender went on to ask what would (CEIU 41’s) ‘parents’ say about them talking. CEIU 41 asked “what’s wrong with talking” and the offender responded that he did not want some people to get the wrong idea “due to the age bracket”. The offender again reminded her that there were “sick guys and ladies” on “here (ie electronic media) that only want to talk to a young girl or boy to get them alone and assault them”. During the conversation CEIU 41 asked the offender whether he minded that she was 14. The offender said yes, but only as long as ‘she’ wanted to and only if she did not get into trouble with her parents. More than once, he asked CEIU 41 whether she deleted conversations. He also queried whether CEIU 41 used other forms of social media, such as Skype and her phone. Subsequently the offender downloaded Skype and asked CEIU 41 for her Skype details. There was also discussion as to whether CEIU’s ‘mother’ might have oversight of their communications.

14. From 25 March 2020 onwards, they communicated using Skype.

15. On 30 and 31 March 2020, the offender sent messages, but CEIU 41 did not respond.

16. On 1 April 2020, the offender said he needed a hug. He told CEIU 41 that he was lonely and that he “wish(ed) you were older”. CEIU 41 suggested that someone would love to be his girlfriend and the offender promptly responded “would you lol?”. When CEIU 41 said yes, the offender said “really .. we’ll have to wait four years though”. The offender emphasised that there was a need to wait “cause your undersge (sic)”. This was the first reference to the prospect that CEIU 41 might become the offender’s girlfriend and reflected the offender’s awareness that she was 14 years of age, and ‘underage’, for the purposes of any sexual relationship.

17. On 3 April 2020, the offender again indicated that he wished CEIU 41 was “older” and mentioned, for the first time, the possibility of a meeting. The offender explained that people would see it as ‘funny’ if he was seen with ‘her’. The offender again asked CEIU 41 to delete the content of their ‘chats’.

18. On 4 April 2020, the offender directly asked CEIU 41 whether she wished to be his girlfriend and CEIU 41 indicated that she did. The offender told her that they “can’t do anything” for a few years “because your (sic) underage”.

19. By this time, the offender had searched online for clothes for CEIU 41 and indeed, later in the conversation, he sent her several links to eBay listings for shorts, but said “oops, the last one was underwear. Forgive me”. He asked CEIU 41 “what sort of undies do you wear?”

20. During the conversation on this day, the offender foreshadowed his meeting her and treating her like a daughter, asking her to wear the “mini skrts (sic)” and inquiring what she would wear under them. Again, he asked whether she was deleting the record of their conversation.

21. On 8 April 2020, after the offender had said that he needed a hug, CEIU 41 said that all the guys her age were ‘annoying’; to which the offender responded “Do you want an older guy?”

22. Six days later, on 14 April 2020, they conversed again, during the course of which the offender expressed concern about CEIU 41’s absence on Skype, commenting “I thought you didn’t love me anymore”.

23. On 18 April 2020, he conversed with CEIU 41 again, referring to her as “Hey beautiful” and inquiring whether her ‘mum’ was at work. When CEIU 41 indicated that she was, the offender said he “missed” her and reiterated his “wish (that) you were older babe. I would love to have you as my girlfriend”. When CEIU 41 asked why she couldn’t be his girlfriend, the offender asked her if she wanted to be, and indicated that he wanted to cuddle her.

24. In response to a question as to what she was doing, CEIU 41 suggestively said that she was just lying in bed and did not get dressed that morning. This conduct resulted in the offender asking her if her mother knew that they were talking. CEIU 41 indicated that she could be in trouble if her mother knew, which prompted the offender to say “It’s not like we can have sex lol”. This, the offender explained, was because she was young and “it’s illegal”. They then discussed the subject of her having sex. The offender asked her whether she had ever been touched “down there”. This was the first explicit discussion of prospective sexual activity.

25. CEIU 41 stated that she was 13. This, of course, was different to her previous statement of her age. The offender sought reassurance that she was deleting their messages. The offender also asked her if her friends had really had sex before and asked her if she wanted to try. CEIU 41 raised the notion of their having sex together, but the offender said that should be “when your (sic) older”, which, he clarified, was when she was 16. Later, in the same conversation, the offender asked her whether she ever walked around naked.

26. On 19 April 2020, the offender indicated his intention to paint the house and asked CEIU 41 whether she could visit to help out. They had a discussion about what they might “do” if she came over. By implication, it is apparent that they were canvassing the possibility that they might engage in sexual activity. At about this time, they discussed whether CEIU 41 would wear anything under her school shirt.

27. On 21 April 2020, the offender asked CEIU 41 whether her mum had “guys” over. This was the prelude for further conversation about sex. The offender inquired whether CEIU 41 had heard her mother have sex and he asked whether her mother had sex toys. CEIU 41 advised that she had seen something in her mother’s drawer that was “kinda like a banana but pink” and the offender said “Yeah that’s one”. They then had a discussion in which the offender explained to CEIU 41 that her mother used a sex toy to masturbate and he encouraged CEIU 41 to use the same toy to masturbate herself and CEIU 41 actually described masturbating herself. As previously, the offender evinced his concern that the mother might find out but CEIU 41 promised him that she would not tell anyone. He also sought confirmation, again, that she was 13.

28. On 22 April 2020, the offender spoke of his desire to meet CEIU 41, to take her out to lunch and appeared anxious to know whether CEIU 41’s ‘mother’ had discovered her ‘daughter’s’ use of the sex toy.

29. On 24 April 2020, the offender spoke of his love for CEIU 41. This was more than romantic ardour: he asked CEIU 41 whether she had masturbated with her mother’s sex toy again. When CEIU 41 indicated she did not know how to use the toy, the offender encouraged her to google “How to use a dildo”. He later asked CEIU 41 whether she had pubic hair.

30. On 28 April 2020 the offender directly asked CEIU 41 when they could meet. CEIU 41 tantalised him by asking what they might do and the offender’s initial response was to have a cuddle but CEIU 41 encouraged him further: ‘she’ asked him what else would he want to do? The offender sensed that she was suggesting sex and CEIU 41 asked “would u want 2?” Reading the content of the communication, the offender is cautiously avoiding positively saying he wanted sex.

31. The communication went on in a way that was sexualised: CEIU 41 spoke of lying in bed and the offender asked her what she was wearing. CEIU 41 said black underwear. This prompted the offender to state that he wanted to see her with none (underwear) on. He asked her, again, whether she had pubic hair.

32. He spoke again of a desire to see her and specifically asked whether someone had touched CEIU 41 on her vagina. CEIU 41 asked him if this was something he wanted to do. Again, the offender was cautious to avoid a direct answer, saying “I will only do what you want”.

33. There was then discussion of CEIU 41 hearing noises from her mother which the offender explained suggested she was having sex. CEIU 41 indicated that she had to leave to have a shower and the offender said that he wished he could join her.

34. On 29 April 2020, CEIU 41 and the offender discussed meeting the next week. The content of the offender’s communications suggested, on their face, a degree of tentativeness: he wanted to know whether CEIU 41 was not “scared” to meet him, being a stranger. They had a discussion about the offender buying nail polish and clothes for CEIU 41. He sent her electronic links to items of clothing. The context suggested that an item of clothing was underpants.

35. They then discussed the prospect that CEIU 41 might see the offender’s naked penis when they met. CEIU 41 asked him what she might do when she saw it and the offender indicated this was up to her: they could have sex or she could touch it. The offender then asked her if he could touch her. CEIU 41 sought clarity whether he was referring to her vagina and the offender indicated that he did. The offender then told CEIU 41 to “Google oral sex” and asked if he could do that and would she do that to him.

36. On 4 May 2020, the offender asked CEIU 41 whether she still “wanted” him and asked whether her ‘mum’ had checked CEIU 41’s SMS messages.

37. Later in the conversation, the offender said he may not be able to meet CEIU 41 next Wednesday. He inquired of her whether her mother knew that she had used the mother’s sex toy.

38. On 6 May 2020, the offender was arrested after Police attended his home address. He later declined to participate in a record of interview.

Characterisation of the objective seriousness of the offending

39. The Crown submitted that consideration of the objective seriousness of this offending usually takes into account:

• The number, length and type of conversations;

• The frequency of conversations, and level of persistence of the offender;

• The nature of indecent material communicated;

• Whether the victim was a real person;

• The age of the victim, and age differential between victim and offender;

• The nature of any prior relationship between offender and victim (including any power differential or whether the offender was in a position of trust);

• The extent to which the intent for future sexual activity with the offender is exposed and developed;

• Whether any inducements were offered (including alcohol or money), or threats made;

• The nature of the future sexual activity intended;

• The offender’s level of deliberateness in communications;

• The planning and sophistication involved in the offence; including steps taken to protect his anonymity.

40. The offender’s Counsel did not dispute the relevance of each of these factors. He positively embraced some of them in certain respects, as indicated below. I accept that they are all relevant.

41. Specifically, the Crown argued that the content of the communications indicated the offender’s belief that the fictitious person was 14 years old for the first month of the communications and 13 years old from April 2020 until his arrest – a significant age differential. There was frequent and persistent communication and most of it was instigated by the offender and he had the opportunity to dis-engage. The Crown cited numerous grooming-related activities.

42. The offender’s Counsel concedes that the offence is objectively serious; but, nevertheless, argues that the circumstance that the recipient of the communications was not a real victim diminished the seriousness of the offending. The offender took issue with the Crown’s reference to R v Fuller [2010] NSWCCA 192.

43. In R v Fuller, McClellan CJ at CL (Hislop J and Barr AJ agreeing) said (at [35]):

“The sentencing judge identified the lack of an actual victim as a mitigating factor. Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes. Although the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.”

44. I think it follows, as a corollary, that the offence may be less (objectively) serious when the communication is made to a fictitious person than a child. In the sentencing hearing, the Crown did not disagree with that proposition. The Crown itself had indicated in its written submissions that the question whether the victim was a real person (and if so, the victim’s age) was relevant to assessment of the objective gravity of the offending.

45. Counsel for the offender also emphasised that contact was initiated by the police; and not the offender’s actively messaging, communicating or attempting to befriend persons. There is force in that submission. So too is there force in the offender’s Counsel’s submission that, to some extent, answers by the fictitious person contributed to an escalation of the explicit conversation. Nevertheless, as McClellan CJ at CL said in Rampley v R [2010] NSWCCA 293 at [37], the nature of the offence is such that the creation of fictitious identities in communicating with offenders is necessary. In my view, by logical extension, the same thing might be said about fictitious persons influencing, in the sense of bringing out, offensive communications by offenders. Accordingly, in my view the circumstances that CEIU 41 initiated contact, in some (not all) instances or engaged in manifestly flirtatious conduct, effectively bringing out the offender’s latest sexual interest in children, does not materially reduce the seriousness of the offending.

46. The offender’s Counsel also argued that no indecent material was disseminated. That was true, in the sense that no photographs or videos of naked body parts, or suggestive sexual poses were posted or downloaded. Nevertheless, there was sexually explicit encouragement to CEIU 41 to masturbate using her mother’s sex toy and encouraged her to ‘Google oral sex’ with a view to asking CEIU 41 whether he could give her oral sex and for her to give it to him. The differences in degree are not large when, as here, the offender was actuated by a belief that he was dealing with a 13 or 14 year old girl.

47. Having taken into account the range of relevant considerations identified by the Crown, to borrow from parlance deployed from state offences, I regard the offending at being below the mid-range of the range of objective gravity for this kind of offence albeit, but not by much. Aside from the absence of a real victim, although efforts were made by the offender to conceal his offending, they were not particularly sophisticated (the offender rather ineptly used his own name as a screen name); the nature of the future sexual activity was rather oblique; no very firm arrangements for a resulting was or were set; there was no applicable previous relationship of trust between the offender and CEIU 41 and thus no ‘power differential’. In the offender’s mind, and as manifested in some of his communications, he believed that there was a significant age differential; few inducements were offered and no threats were made.

The offender’s culpability

48. The offender gave evidence in the sentencing hearing. He said, on at least three occasions, and virtually as a mantra, that he “accepted full responsibility” for his offending. But other times he adhered to an account he had given to third persons to the effect that although he recognised his offending was serious, it was explicable to his not “thinking of the consequences”. In closing submissions, his Counsel cited certain mental abnormalities, such as impaired executive function and a depressive state of mind.

49. But cross-examination of the offender effectively exposed that the offender, through the content of his communications with CEIU 41, knew full well of the potential consequences he might face if his offending was detected. As at the time of the offending, he was a registered sex offender under the Child Protection (Offenders Registration) Act2000 (NSW), a fact that the offender acknowledged. The offender could not explain the multiple indications within the communications whereby he asked CEIU 41 to delete records of the conversations. He ultimately accepted that he requested the deletion of records of what was communicated because he knew he might go to jail if detected.

50. The offender also said in his evidence that although he may have indicated a desire to meet with CEIU 41, he had no real intention to meet; and/or that he was looking for ways to avoid meeting CEIU 41. The cross-examination, by its references to the passages in the communications concerning meetings, also significantly undercut the veracity of the offender’s account.

51. I found that the exchanges about those references significantly diminished his credibility as a witness. In these regard, I note that there were indications in the psychologist’s reports, and the sentencing assessment report that the respective authors opined that the offender “minimised” his offending.

52. In Mr Kalogiannis’ first report (on p 10) he identified as a personality trait, that the offender “tells us what he wants us to hear, not what he is really like”. There is substance in the Crown’s contention that the offender had a tendency to minimize his offending out of court whilst protesting his full and unqualified acceptance of responsibility in Court since he thought the sentencing court, before whom he has much previous acquaintance, might want to hear this from him and, in so doing, it might help him.

53. The offender relied upon two reports of a clinical psychologist, Peter Kalogiannis, dated 15 October 2019 and 12 February 2020. It will be observed that both reports preceded the date range for the subject offending. Both reports were prepared in response to prior charges of possessing child abuse material.

54. In the first of the reports, the psychologist administered various psychological forms of assessment. Mr Kalogiannis diagnosed that the offender suffered from a Borderline Personality Disorder (manifesting in a dysfunctional way of viewing the world), anxiety and depression; which were traceable to unresolved trauma from reported early childhood sexual abuse. Mr Kalogiannis also found that the offender was low in cognitive resources and had difficulty in his executive function; which impaired his capacity to think through the consequences of his actions in a considered way. He found that the offender required significant psychological therapy and treatment to assist him.

55. In the second of the psychologist’s reports, Mr Kalogiannis emphasised the offender’s difficulties in executive functioning and impulsivity; and reconsidered the nature of the treatment that he required, being a specialist sex offender program.

56. The Crown submitted that the Court should be cautious in accepting the reports of professional service providers, such as psychologists, based as they substantially are upon possibly self-serving histories or reports of offenders. Whilst the Court accepts that admonition, it carries less significance here because of the plain indications that the psychologist himself was doubtful about the reliability and insight in the offender’s observations to him.

57. In the sentencing assessment report prepared before the sentencing hearing, the offender did not attribute his offending to any mental abnormality or disorder. He told the corrections officer that he was simply lonely and sad and wanted someone to talk to after losing custody of his son.

58. Further, as the Crown submitted, the content of the communications clearly indicate that the offender was conscious of the wrongfulness of his conduct. In my opinion, the clear indications of his awareness of wrongdoing means that his culpability is no less reduced notwithstanding the existence or effect of any mental conditions he had at the time of the offending and, accordingly, there would be no basis to moderate the significance of general and specific deterrence as applicable considerations in the sentencing exercise.

Need for general deterrence (s 16A(2)(ja)) & and adequate punishment s (16A(2)(k))

59. In Small v R [2020] NSWCCA 216, the New South Wales Court of Criminal Appeal approved the following passage from a judgment of Redlich and Beach JJA in DPP v Watson (2016) 259 A Crim R 327 at [35]:

“The respondent’s offending shows that the internet may be used as a highly effective medium through which to exploit and sexualise vulnerable children who now are able to have unsupervised access to the internet. Computers and mobile phones with internet access, afford the willing offender with unparalleled world-wide opportunity to exploit the young and impressionable. It is a form of offending that is difficult to detect. It is already evident that the rapidly advancing technology will require courts to increasingly address cases of this kind. The increase in maximum penalty in 2010, no less than 5 years after these offences were introduced [See Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth)], reflects the legislature’s recognition that today’s technological landscape presents a dangerously easy playing field for manipulation of children. The prevalence of such offending means that significant weight must be attached to general deterrence.”

60. The Crown submitted that the sentence must make clear to other like-minded persons within the community the abhorrence with which the community regards the offending conduct and that it will be met by condign punishment.

61. No contention was advanced on the offender’s behalf that the weight to be accorded to general deterrence is diluted in the circumstances. The offender’s Counsel’s point, as will be developed further below, was that general deterrence has been served by the time the offender has already spent in custody.

SUBJECTIVE CIRCUMSTANCES

Contrition and guilty plea (s 16A(2)(g))

62. The Crown submitted that the offender entered his plea late, being the first day of the trial, 3 May 2021. Further, he had not, in advance of that plea, agreed to narrow the issues in dispute. Indeed, it was only entered into after the offender, and Crown had engaged in significant preparation for the offender’s stay application, which was abandoned. That stay application was, I was informed, premised upon the contention that the offender was the victim of entrapment. The Crown submitted that the plea was only entered into in the face of a strong Crown case; which relied upon the social media communications between the offender and an undercover officer. His plea should be treated as the offender’s recognition of the inevitable.

63. The offender’s Counsel submitted that there was never any dispute that the offence was committed. Further, there were no lay witnesses and no ‘victim’ in the matter and no prospect of witnesses being required. In the circumstances in which the plea was made, no jury was empanelled. There was, in all the circumstances, significant utilitarian value in the offender’s plea. The offender submitted that the appropriate discount was 15%.

64. Both the Crown and the offender referred the Court to the Court of Criminal Appeal’s decision in Xiao v R (2018) 96 NSWLR 1; which decision was confirmed by the current wording of s 16A(2)(g). The Court emphasised the relevance to s 16A(2)(g) of the Crimes Act of the utilitarian value of pleas for federal offences, and also indicated that it was desirable, if discount be made, to specify the level of that discount.

65. A guilty plea has potential significance in several respects. It may potentially be evidence of remorse. As Xiao v R confirms, it may have utilitarian value. It may also potentially evince a willingness in the offender to facilitate the course of justice. In my opinion, only the consideration of its utilitarian significance applies in these circumstances when evaluating the significance of the plea.

66. Although a guilty plea can evidence remorse, it does not necessarily establish remorse; particularly where there are no, or few, other indications of remorse; and even if it may indicate remorse, the significance of that factor alone may also be diminished by the strength of the prosecution case (see the discussion and authorities cited by Mr Odgers SC in Sentence (5^th ed, 2020, Longueville Media Pty Ltd) [4.181]).

67. I have regard to the sentencing assessment report, which indicates ‘some’ insight in the offender and recognition of the potential consequences of the offending conduct against children by engaging in sexual behaviour with them. But his statement to the corrections officer that he was aware that he was speaking to a police operative, rather than a child, tended to undercut the suggestion of genuine or full acceptance of responsibility.

68. As I have indicated in my earlier observations of the offender’s credibility as a witness, I do not accept, unreservedly the offender’s protestations of accepting full responsibility for his conduct, when attempting to reconcile them with his evidence that he was not thinking through the consequences of his actions at the time of the offending, did not actually intend to meet CEIU 41, or felt the offending was less important since he was speaking to a police operative. That being so, I find that his remorse is only limited.

69. I have regard to the timing of the plea. I accept the Crown’s submission that it was tantamount to a plea on the day of the hearing. I also regard the circumstances of the timing (an abrupt change from an intention to bring a stay application), and the powerful prosecution case (indicated by the offender’s acknowledgment that there had ‘never been any dispute .. that the offence was committed’), to find that the plea did not have very significant utilitarian value. Further, contrary to the submission advanced on the offender’s behalf, the circumstance that there were few lay witnesses only underscored the strength of the Crown case. With the abandonment of the stay application, I accept that the plea was essentially recognition of the inevitable. I find that the appropriate discount on sentencing for the plea is 10%.

The offender’s character, age, antecedents and background (s 16A(2)(m))

70. The offender was 39 years of age at the date of offending. The offender’s Counsel identified that the offender as having experienced difficulty obtaining employment and maintaining employment. The Court was informed that his employment as a truck driver was terminated due to the onset of the COVID-19 pandemic. He was unemployed at the time of his arrest.

71. The Court was also informed that following his arrest, the offender has become ‘separated’ from his wife and they have had no contact for over a year. In his evidence in chief, the offender went on to say he had instituted divorce proceedings. He has two male children from his relationship and maintains contact through fortnightly phone calls.

72. Upon his release, he will require assistance with his accommodation, given he has limited social support.

73. He has a lengthy criminal history, including that of sexual offending and exploitation of children. It is an agreed fact that this includes sexual penetration of a child under the age of 13 (1997), indecent assault (1996); possession of child abuse material (2004), committing an indecent act with a person over 16 (February 2011) and possession of child abuse material (June 2018). I do not accept Counsel for the offender’s characterisation of his having had only a ‘limited’ record of sexual offences. It is stretched out during his adult years. More disturbingly, his previous offending, in relation to child pornography, occurred on 30 June 2018, less than 2 years before the subject offending. There were a range of other offences as well, comprising breaking and entering and aggravated burglary; the latter category of offence being committed in Western Australia. This is not a record that entitles the offender to leniency. It is also the record of a man with a close familiarity with the criminal justice system which, as I have indicated, may help explain the nature of some of his evidence and the view expressed by his psychologist of a tendency that he has to say things which he thinks an interlocutor might want to hear.

74. His prior offending and the circumstance that his current offending occurred when he was a registered sex offender indicates that the instant offending was not an uncharacteristic aberration but, rather, betokened a continued attitude of disobedience of the law. This engages, with greater force, considerations of personal deterrence, retribution and protection of the community.

75. The prior offending, and in particular, his recent offending for 2018, also has significance for the assessment of his prospects for rehabilitation.

Prospects of rehabilitation (s 16A(2)(n) & 16A(2AAA))

76. This is a mandatory consideration to take into account for this type of offending (s 16A(2AAA)). The Crown submits, without contradiction, that the provision does not permit or require a court to impose a sentence that is disproportionately severe in pursuit of the objective of rehabilitating the offender. I accept that submission.

77. In Mr Kalogiannis’ first report, the psychologist observed, with reference to the charge of possessing child abuse material, that the offender was not, at that point, taking responsibility for his offending; thereby placing him at a high risk of reoffending.

78. In his second report, prepared only about a month or so before he commenced the subject offending, Mr Kalogiannis reported that the offender had a very limited insight into his condition of executive impairment and, moreover, without the specialist treatment of his participation in sex offender programs, he was at high risk of re-offending.

79. In the more recent sentencing assessment report before the Court, the corrections officer referred to the offender’s initial minimalizing of his offending before he eventually acknowledged that his conduct was inappropriate. The corrections officer ultimately opined that the offender had showed some insight into his offending; expressing his understanding that sexual abuse can result in life long scars.

80. In that report, the offender stated his willingness and ability to undertake intervention to address his sexual offending. Nevertheless, it must be acknowledged that he has previously completed a sex offender treatment program, albeit many years before the subject offending.

81. Attached to the sentencing assessment report was a psychological assessment by Mr Andrew Redden, who interviewed the offender on 15 June 2021. The currency of Mr Redden’s assessment exceeds, by some distance, the reports of Mr Kallogianis. Having said that, it is acknowledged that Mr Redden undertook to apply a different form of psychological testing to that which had been applied by Mr Kallogianis, being an actuarial assessment of the offender’s ‘sexual offending recidivism risk’. Mr Redden also, of course, had the advantage of interviewing the offender in the knowledge of his committing the subject offence, an advantage not available to Mr Kallogianis. Further weight should be accorded to Mr Redden’s opinion, attributable to the more closely targeted inquiry of the risk of recidivism of offending of the present kind relative to Mr Kallogianis’ more generalised assessment.

82. Mr Redden identified, as ‘factors indicative of risk’, among other things, ‘offence minimisation’, which the psychologist explained, was referable to the subject offence based on a subsequent understanding he was not communicating with a real child. Mr Redden also identified ‘maladaptive coping and poor problem solving’, denial of sexual deviance and denial of being sexually attracted to children.

83. Applying the ‘Static-99R’ methodology utilised to predict sexual recidivism for individuals charged with a sexual offence, Mr Redden reported that the offender fell into the ‘Well Above Average Risk Category’, relative to other adult male offenders.

84. Ultimately, community corrections identified his risk of reoffending to be high; following Mr Redden’s assessment, of the offender having a ‘well above average’ risk of sexual reoffending.

85. Counsel for the offender criticised the corrections officer for this. He did not dispute that the corrections officer was not qualified to express an opinion, but argued that limited weight should be accorded to the corrections officer’s ‘upgrade’ since it was not transparently explained. To the extent that it is suggested that a corrections officer must act akin to an expert witness in identifying the ‘basis’ for an opinion, or exposing transparent reasoning, I do not consider that the comparison is apt.

86. The corrections officer had formed a provisional view of the offender’s likelihood of re-offending; read the psychologist’s view and thereafter upgraded her assessment of the risk of re-offending. In view of the content of the psychologist’s opinion, this was hardly surprising. I infer that the corrections officer would have, at least to some degree, given weight to the specialised knowledge of the psychologist particularly after the specialist assessment which was performed, and it was not suggested that it was improper, or irrelevant, for her to have regard to the psychologist’s report, before reconsidering her provisional view. I do not consider that the weight to be accorded to her upgraded, or revised, view of the offender’s likelihood of re-offending following that reconsideration, is materially diminished simply because she did not expressly specify how its content influenced her. It appears, further, that no request was made of the Crown that she attend to be cross-examined.

87. In part of the offender’s evidence, he said that because of his status as an inmate, he was deprived of the opportunity to participate in remedial treatment for sex offenders which might assist his rehabilitation.

88. This evidence was not seriously disputed by the Crown. Nevertheless, the Crown referred the Court to earlier instances, in 2004 and 2014, when, in the former case, the offender had reportedly participated in a program for sex offenders whilst, in the latter case, he apparently started but did not complete a program. This was cited to support the submission that the offender had previously not successfully been rehabilitated.

89. Of additional concern is the reference in Mr Redden’s report in which it was reported that the offender denied having a sexual interest in children. But in the sentencing hearing, the offender admitted that he had a sexual interest in children. This was another example of inconsistency between out of court statements and testimony in Court.

90. For offences of this kind, I accept the Crown’s submission that successful rehabilitation will depend upon the extent to which an offender recognises a disorder and takes steps to overcome it. The same submission might be made about most serious offences where an offender relies upon some mental abnormality.

91. In his evidence, the offender spoke in terms of suggesting that he had turned over a new leaf: he said that he had very young children, and his missing of ‘milestones’ in their development had hit home. He now had greater motivation to participate in programs; if only he could, but he was deprived by reason of his current status as an inmate in his correctional centre. I have noted my doubts about his credibility as a witness, having seen and heard him and am sceptical about his evidence. His immediate prior offending, relating to possession of child abuse material occurred, given the indication by the offender of the ages of his two children, around the time or at the birth of either or both of them. That being so, the offender was not sufficiently motivated not to offend by the prospect of his wife then giving birth to a child or children. Further, I accept the Crown’s submission, based upon what the corrections officer had recorded, that past attempts at rehabilitation have not succeeded.

76. On the evidence before the Court, including his psychologist’s opinions in 2019 and 2020, Mr Redden’s most recent opinion and that of the corrections officer, and the offender’s record, I am not satisfied that the offender’s prospects of rehabilitation are anything but poor.

Other matters

93. The offender’s Counsel cited evidence, in the form of handwritten letters to his solicitor (Exhibits 1-3) that the offender had been the victim, once, of an assault whilst in custody and the victim, twice, of intimidation whilst in custody; and, moreover, has been threatened with being stabbed and coerced into paying money.

94. These matters were repeated when the offender gave evidence.

95. However, when I pointed out, in an exchange with the offender’s Counsel during his closing address, that there was nothing which linked these forms of mistreatment with a desire by third parties to exact retribution for the offender’s subject offending, Counsel applied, and was granted leave, to recall the offender to give supplementary evidence in chief.

96. In this supplementary evidence, the offender referred to two incidents whilst in custody, where, he said, violent acts were perpetrated upon him: one being a punch by an assailant from behind in April 2021 and the other being a cup of boiling water being tipped over him, as reported in one of the handwritten letters the offender sent to his solicitor in June 2020. The offender said that both incidents were accompanied by the respective inmates telling, or perhaps more accurately taunting, him that they knew why he was in jail.

97. The Crown did not challenge that evidence. I accept the offender’s account of both incidents.

98. I accept that, at least in these two respects, the offender has suffered a form of extra-curial punishment. To a degree that moderates a requirement for specific deterrence.

99. The offender also gave evidence of the collapse of his marriage and his wife’s complaint to him of being subjected to abuse. Regrettable though those developments may be, I do not regard them as being a form of extra-curial punishment; but rather (in the case of the divorce) a not unnatural reaction of a spouse to the revelation of the offender’s heinous conduct. In relation to abuse of the wife, that is not punishment visited upon the offender himself in the requisite sense.

Need for specific deterrence (s 16A(2)(j))

100. The Crown emphasised the significance of this sentencing consideration. The offending was not momentary, or an impulsive lapse but, inherently, part of a course of conduct occurring over a period of time. Moreover, the offender persisted in highly sexualised communications to the victim despite knowing her age and the illegality of his actions; had no real insight and his own lengthy history, including offences involving the sexual offending and exploitation against children.

101. Counsel for the offender tried to counter these submissions, at least to the extent that the Crown contends that the offender showed no insight. Further, as explained a few moments ago in these remarks, the offender cited extra-curial punishment he had experienced in custody as a further basis for reducing the weight accorded to this factor.

102. For reasons considered earlier in these remarks, I accept that some insight was shown; and the offender suffered some extra-curial punishment. Nevertheless, for reasons alluded to when I considered his culpability, I do not accept the offender’s submission that difficulties in executive functioning made it difficult for him to see the consequences of his actions and that his conduct can be explicable on the basis of making poor decisions. He was aware he was registered as a sex offender and the serious sanctions that might arise if he misconducted himself. This was why he was anxious to ensure that CEIU 41 deleted the content of the communications. There remains significant work for the consideration of specific deterrence; particularly in view of this offender’s limited remorse and his record of sex-related offences involving children.

Comparable sentences

103. A sentencing judge sentencing for a federal offence is required to consider current sentencing practices throughout the Commonwealth (R v Pham (2015) 256 CLR 550 at 556-8).

104. At the hearing, the Crown supplied a schedule of sentencing cases for the subject offence. These were: Small v R [2020] NSWCCA 216; R v Nahlous (2013) 273 FLR 232; Meadows v R [2017] VSCA 290; and Rampley v R [2010] NSWCCA 293.

105. Of the cases cited, the offender’s Counsel submitted that Small and Nahlous were not analogous. Both cases involved actual victims and there was offending at the high end of the range of objective seriousness.

106. As is often the way, all of these ‘comparable’ cases differ from the precise circumstances of this offender. Some of the cases (Small and Rampley) might be regarded as objectively more serious than the offending here; particularly in connection with the degree of sexual explicitness in the content of the communications; whilst in others (Nahlous and Meadows), the offender in question had a stronger subjective case than this offender.

107. Although there are differences, I accept the Crown’s submission that of the cases cited, the case of Rampley bears the closest resemblance to the circumstances of this case. That was also a case of communications sent by the offender to a fictitious recipient. The offending occurred over a not dissimilar period of time. As with this case, part of the sexualised content of the messages concerned encouragement to masturbate. In Rampley, there were certain positive subjective features favouring the offender; not the least of which was the absence of any prior criminal history and an early plea.

INSTINCTIVE SYNTHESIS

108. Having regard to the nature of the offending, my consideration of its gravity, the considerations adverted to under s 16A(2) identified in these remarks (especially the force to be given to general and specific deterrence), the common law sentencing principles which accords significance to the protection of society and denunciation, the maximum penalty, and a poor subjective case, I am satisfied, for the purposes of s 17A of the Crimes Act, that no other sentence is appropriate in all the circumstances of the case other than a sentence of imprisonment.

109. The offender’s Counsel did not seriously dispute that conclusion. His essential point was that the period of custody that the offender has already served, being 485 days (13 months, 2 weeks and 5 days), since his arrest on 6 May 2020 until the delivery of these remarks (24 June 2021) is long enough.

110. In my view, the considerations of protection of society, denunciation of the offending and requirements for general and specific deterrence in the circumstances of this offender, given his record, his limited remorse and his poor prospects of rehabilitation, are such that the offender’s submission should not be accepted and a greater period of incarceration is required than that which the offender has currently endured. Most importantly, it is critical that when the offender is released, he is released with appropriate parole conditions supervised by the parole service.

111. I take into account the time that the offender has spent in custody.

112. When fixing the minimum term, I am cognizant of the need to ensure adequate punishment whilst providing some incentive for rehabilitation – notwithstanding the reservations expressed in these remarks about the offender’s prospects. The offender was not challenged in his evidence that he is currently unable to obtain the special treatment he needs and notwithstanding that the Court is acutely conscious of the need to protect society at large, one aspect of this is the desirability of his more effective re-integration back into the community on his release. This is not to be overstated, given the nature and frequency of some of his prior offending, but it remains relevant when assessing the minimum term.

113. Mr Amson, please stand.

114. You are convicted of the offence that between 17 March 2020 and 4 May 2020, you used a carriage service to groom a person believed to be under 16 years of age.

115. Having taken into account your guilty plea, I sentence you to a term of imprisonment of 3 years and 2 months, commencing on 6 May 2020 and expiring on 5 July 2023, with a non-parole period of 2 years, 2 months and 19 days expiring on 24 July 2022, after which you will be eligible for release.

116. I further direct that the report of Sara Lindsey dated 21 June 2021, and the psychology pre-sentence report of Mr Andrew Redden, dated 16 June 2021, be brought to the attention of those responsible for the supervision of the offender with regard to the treatment necessary to assist the offender.

**********

Amendments

28 June 2021 - Fixed typo

Decision last updated: 28 June 2021