R v Barbros Ocek - [2018] NSWDC 349

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Barbros Ocek [2018] NSWDC 349
Hearing dates: 16 April 2018- 17 April 2018
Date of orders: 17 April 2018
Decision date: 17 April 2018
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Overall term of 20 years, overall NPP 15 years
Re Counts 7, 8, 9, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 – Aggregate term of 5 years, NPP of 3 years
Re Counts 10-17 –Aggregate term of 6 years, NPP of 4 years
Re Count 1 – Fixed term 6 months imprisonment
Re Count 2 – Fixed term 18 months imprisonment
Re Count 3 – Overall term of imprisonment 15 years, NPP of 10 years, parole thereafter of 5 years.
Re Count 4 – Fixed term 18 months imprisonment
Re Count 5 – Fixed term of 2 years imprisonment
Re Count 6 – Fixed term of 6 months imprisonment
Re Count 20 – Fixed term of 2 years imprisonment
Re Count 21 – Fixed term of 12 months imprisonment
Re Count 24 – Fixed term of 13 months imprisonment
Re Count 32 – Fixed term of 12 months imprisonment

Catchwords: CRIMINAL LAW – Committal for Sentence following Pleas of Guilty in Local Court – 25% discount – 38 Commonwealth and State Offences plus 10 Form 1 Offences – NSW OFFENCES – Persistent Child Sexual Abuse involving 32 separate sexual acts with a 14 year old on 7 occasions – Numerous separate charges of child sexual intercourse with other children between 14 and 16 – Meet/Travel to meet child for groomed sexual activity – Produce/disseminate child abuse material – Possess child abuse material multiple images on several devices – Making demand with menaces to obtain indecent images – Procuring child under 14 for production of child abuse material – Possess child abuse material evidence of grooming with alcohol, cannabis and pornography – COMMONWEALTH offences – 20 of using carriage service to procure child for sexual activity or engage child in sexual activity – Use of fake profiles – Significant planning – OFFENDER diagnosed high risk of recidivism – Paedophilia and paraphilia – Prior similar offences – Some offences committed on parole, some committed whilst a registered sex offender – Manipulative and dangerous – Risk to community – Poor prospects of rehabilitation
Legislation Cited: Crimes Act 1900 (NSW), ss 578A, 91H(2), 98H(2), 66EA(1), 66EB(3), 66EB(2A), 66C(3), 61M(2), 249K(1), 91G(1)(b).
Courts (Suppression and Non-Publication) Orders Act, 2010, ss 7, 8(1)(c), 8(1)(d).
Child Protection (Offenders Registration) Act 2009, ss 17, 12C.
Crimes (Domestic and Personal Violence) Act 2007, ss 13(1).
Criminal Code 1995, ss 474.
Crimes (Sentencing Procedure) Act 1999, ss 10A, 53A.
Crimes (High Risk Offenders) Act 2006.
Cases Cited: R v Thomson & Houlton(2000) 49 NSWLR 383
Chiro v The Queen [2017] HCA 37
R v Nahlous [2013] NSWCCA 90
R v Fuller [210] NSWCCA 195
DPP (Cth) v Beattie [2017] NSWCCA 301
Category: Sentence
Parties: Barbros Ocek
The Crown
Representation: Counsel:F/W Mr V. Pawar
Cr: Ms J Smith
Solicitors:F/W: Mr Lipert
Cr: Ms Tierney

File Number(s): 2014/301260; 2014/218371; 2014/301260
Publication restriction: NON-PUBLICATION ORDER PREVENTING THE PUBLICATION OF THE IDENTITY OR ANYTHING THAT MIGHT IDENTIFY ANY OF THE NAMED COMPLAINANTS OR VICTIMS PURSUANT TO S 8(1)(d) OF THE COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT

Judgment

HER HONOUR: I note the provisions of s 578A of the Crimes Act apply to the sentences in this indictment which are the prescribed sexual offences as defined in the Crimes Act, 1900. In order to cover all offences, I will additionally make an order pursuant to s 7 of the Courts (Suppression and Non-Publication) Orders Act , 2010 preventing the publication of the identity or anything that might identify any of the named complainants or victims, the reason pursuant to s 8(1)(c) would be to protect the safety of the person and 8(1)(d) would be to avoid undue distress or embarrassment because of the a sexual nature of the offences. I make a further order that the complainants and victims be referred to by initials in this judgment.
The offender, Barbros Ocek, is before the Court for sentence on 38 substantive offences to which he has pleaded guilty. They are counts 1 to 38 inclusive in an indictment dated 5 June 2017, filed in court that day. The fact that they are formally before the Court following pleas of guilty on indictment is a result only of the complexity of these matters and the need to ensure that all matters were properly consolidated and regularised. Pleas of guilty were in fact entered in the Local Court and he was committed for sentence to this Court on 24 August 2016 on an even larger group of offences, including these 38 substantive offences. There are other offences to be dealt with on four separate Form 1 documents and one related summary offence.
It would seem that the offender was first before this Court on 7 October 2016 when the matters were listed for sentence, all pleas having been adhered to, but with an indication that there was to be a dispute of facts in relation to one portion only of count 3. The sentence was listed for 5 June 2017 to allow for this to disputed facts hearing. On that day, the original indictment was withdrawn and the amended indictment dated 5 June 2017 was filed in court. The offender then pleaded guilty to all 38 counts, subject to the disputed facts for count 3, which was ultimately not pursued.
On 5 June 2017, there were difficulties in proceeding fully with the sentence, but there were several victims of these offences who wished to read out victim impact statements, so time was used that day for that purpose rather than requiring the victims to return on another day. The offender’s lawyers indicated that they wished to obtain a psychiatric report which, for a matter of this type, of course, would always be important. There were delays in obtaining that report and so the sentence only comes to be finalised now.
This is a particularly complex and difficult sentence. Not only are there 38 substantive counts involving both State and Commonwealth offences, 10 additional offences over four separate Form 1 documents and one related summary offence to be considered and sentenced separately but one of those substantive charges, count 3, is a charge of persistent child sexual abuse involving seven separate dates covering 32 separate sexual offences. There are 11 separate victims of these offences ranging in age from 11 to 19. Of those 11, nine were under the age of 16.
In summary, the offences to be sentenced substantively are as follows.

NEW SOUTH WALES OFFENCES

Count 1, a charge contrary to s 17 of the Child Protection (Offenders Registration) Act 2009. Form 1 number 1 attaches to this count and is a further charge contrary to s 17.

Counts 2, 4 and 12 are three charges of possessing or producing child abuse material contrary to s 91H (2) of the Crimes Act 1900. Form 1 number 2 attaches to count 4 and it is a further charge contrary to s 98H (2).

Count 3 is one charge of persistent child sexual abuse contrary to s 66EA(1) of the Crimes Act 1900. Counts 6, 10 and 20 are three charges contrary to s 66EB (3) of the Crimes Act 1900 of exposing a child under 16 to indecent material. Form 1, number 3 attaches to count 10 and covers three additional charges, one contrary to s 66EB (2A) and two further charges contrary to s 91H(2).

Counts 6 and 38 are two charges of intimidation contrary to s 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007.

Counts 11, 14, 15, 16 and 17 are five charges of sexual intercourse with a child aged between 14 and 16 contrary to s 66C (3) of the Crimes Act 1900. Form 1 number 4 attaches to count 11 containing five charges also contrary to s 66C(3) and three charges contrary to s 61M(2).

Count 13 is one charge of aggravated indecent assault of a child between 14 and 16 contrary to s 61M(2) of the Crimes Act 1900.

Count 21 is one charge contrary to s 249K(1) of the Crimes Act 1900 of making a demand with menaces to obtain indecent images and;

Count 24 is one charge of procuring a child under 14 for the production of child abuse material contrary to s 91G (1)(b) of the Crimes Act 1900.

These are all of the New South Wales State offences.

COMMONWEALTH OFFENCES

Counts 7, 8, 9, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 are 20 charges contrary to various provisions of s 474 of the Criminal Code 1995 of using a carriage service either to procure a child to engage in sexual activity or to solicit child pornography from a child but, generally, involve the use of a carriage service engaging in online sexual activity involving children between 14 and 16.

BACKGROUND

The offender was in fact arrested for all of these offences on 24 July 2014 but they cover two separate time periods namely from 1 January 2012 to 31 May 2012 with the second period from 14 January 2014 to 24 July 2014. In the intervening period, the offender was in fact in prison serving a sentence for three similar offences.
The offender came to the attention of the child exploitation internet unit in June 2011 after they received complaints that he was grooming 13 and 14 year old girls on social media sites. Police were not able to obtain statements from individuals to use in a prosecution, so a police officer created the online identity of a 13 year old girl and snared the offender. He was arrested and charged on 24 May 2012 with three charges, two contrary to the Commonwealth Criminal Code Act, 1995, one of using a carriage service to groom a person under 16 and the other of using a carriage service to send indecent material to a person under 16 and a third charge of possessing child abuse material contrary to the New South Wales Crimes Act, 1900.
He was ultimately sentenced on 10 May 2013 in the District Court at Campbelltown by his Honour Judge Arnott to an effective non-parole period of 18 months with 12 months on parole. He was released to parole on 29 December 2013.
Judge Arnott’s judgment is tendered before me on this sentence. These three offences were committed overall during the period between November 2011 and 24 May 2012. He used the online identity Alex Harvey pretending he was a 17 year old from Sydney. Police examined the phone in his possession at the time of arrest and found 42 child abuse images. Some of these were very serious, being categories 4 and 5 in the COPINE scale, although the seriousness of the offending overall was found, by consent, perhaps somewhat surprisingly, to be at the lower end in terms of objective seriousness.
As events have transpired, the bulk of the offences now to be sentenced by me, and certainly the most serious ones, were committed in early 2012 before the offender started that prison sentence, but they had not yet been discovered. That occurred after the offender was released to parole on 29 December 2013 and placed on the child protection offenders register. On 1 April 2014 he signed an acknowledgement of his responsibilities as a registerable person pursuant to s 12C of the Child Protection (Offenders Registration) Act 2000.
As a registerable person, he was obliged to disclose telephone numbers being used by him, email accounts and social media account usernames which he used. He failed to do so. Police discovered that, they seized telephones found in his possession and subjected them to forensic examination. That uncovered text messages of a sexual nature being used on the social media sites.
Another phone was discovered and examination of that phone disclosed a large number of child abuse videos and images. Police then re-examined two of the phones which had been seized in May 2012 for the earlier offences and discovered even more such material. Ultimately, one of the complainants in this matter, RW, contacted police in Queensland on 3 April 2014 because the offender had contacted her after his release from prison.
She made a complaint to police and I infer that the re-examination of the earlier phones then occurred, with police locating material in relation to her on those reports and the investigation continued from there in relation to her and to other complainants, the subject matter of each of these earlier charges. Overall, there are in fact 11 complainants in total represented by the 38 substantive counts before me.
Before dealing with the specific charges, I am, perhaps unusually, going to deal with both the general and specific subjective circumstances, that is the general circumstances surrounding this offender and his pleas and the specific subjective circumstances surrounding him, because these are all factors relevant to a consideration of each of the individual sentences which I propose to address as I consider each offence.
As I said, the offender pleaded guilty to all of these offences in the Local Court at an early opportunity and there is a utilitarian value arising as a result. These are, as I also said, complicated and complex sentences and what is before me is, as I understand, and only a small portion of the offences originally charged. None of the complainants has had to give evidence at any trial for these offences and had there been one or more trials for these charges, they would have been very lengthy. There is thus a significant utilitarian view represented by the timing of these pleas.
For the State offences, I will apply a discount of around 25% to take account of this utilitarian value in accordance with the dicta of the Court of Criminal Appeal in R v Thomson & Houlton(2000) 49 NSWLR 383. I also accept that the pleas of guilty represent both a willingness to assist the interests of justice and also may be taken into account as representing a utilitarian value when dealing with the Commonwealth offences and will apply a discount equally of around 25%.
There are reports from Dr Richard Furst consultant forensic psychiatrist before the court and reports from CUBIT Treatment Programs undertaken by the Offender on an earlier occasion in gaol, both in January 2011 and 19 December 2013. There is also a report from a clinical psychologist David Nein(?) March 2017 and a psychological report and certificates and other material tendered in relation to courses undertaken by the Offender in custody. I have read all of those documents and have taken them into account. Some portions of them I will refer to specifically.
The Offender was arrested in relation to the offences before me on 21 July 2014 and has been in custody bail refused ever since. His sentences then, when ultimately passed, will commence on that day.
He provided a history to Dr Furst and the psychologist. There are some parts of it which I accept without anything further. I accept that he is now 46 and was 41 at the time most of the offences were committed. He is of Turkish background. He has family in Australia, including a mother and sister who both live in Liverpool, but he has no contact with them. He apparently has an adult son aged 25 with whom he also has no contact and has had no contact for a considerable period of time.
He has given a history to Dr Furst that his father was a violent alcoholic who regularly bashed him as a child. He also gave a history involving some sexual contact, not specified, that he alleges he had with his sister. He also claims to have seen his father engaging in some sexual contact with his sister. He also claims to have seen some sexual act performed on his sister by a family friend or babysitter when she was ten. As to these particular portions of history they are just that, history unable to be tested. This Offender, as found in all of the reports, and will be found by me, and which is evident from these offences in any event, is a manipulator and skilled liar. It is difficult to know whether this history is accurate. It does not appear to have formed a very significant part, if any, in relation to Dr Furst’s opinion.
The Offender apparently worked in an engineering company for 18 months after leaving school and had various factory jobs and labouring work in his twenties before he started his own telecommunication business as a sub-contractor when he was 20. He ran this business for seven or eight years, apparently successfully. He had a relationship with a woman for about ten years but they both drank alcohol and smoked cannabis excessively and it ended. Apparently in about 2003 he started to drink excessively and used sleeping pills.
He committed a violent sexual assault in April 2002, including for one of the two offences, threatening to use a knife on the victim. He has a criminal record in addition to that. Initially it involves only driving offences. There is in 1990 a conviction for stealing and indecent assault which ultimately gave rise to a three year bond. The offending then starts to become more serious.
He has convictions for possessing a prohibited drug, entering enclosed lands, for which he received a prison term. There is then a larceny motor vehicle and further driving offences. He was convicted of break, enter and steal and contravene a DVO for which he received a nine months suspended sentence in 2001. Then appear on his record the offences to which I have referred, namely aggravated sexual assault and inflict actual bodily harm and sexual intercourse without consent which occurred on 26 April 2002. He was sentenced, effectively, to an overall term of imprisonment of 8 ½ years with what appears to be, an overall non-parole period of 6 ½ years. The overall non-parole period expired on 29 September 2010 and parole was for a period of two years.
So he was therefore towards the end of this parole period for these aggravated sexual assault offences when he committed the offences before me which occurred in 2012. That, of course, renders more serious each of the offences in that time period.
He was then sentenced for the offences to which I have referred, by Judge Arnott in 2013. That was effectively for a term of imprisonment of 18 months with an effective overall non-parole period of 15 months with release to parole for 12 months on 29 December 2013. He was therefore on parole, or perhaps more correctly, subject to a recognisance release order at the time he committed the offences in the second time period before me, namely those offences committed in 2014. The fact that he was on that form of conditional liberty at the time for those later offences in time also operates to render them more serious.
I accept from Dr Furst’s report that he does not suffer from psychosis. He has an unstable mood, according to assessments done of him in the recent past. There were risk assessments done of him for the purpose of the CUBIT reports. He reported an elevated sex drive, although treatment in custody on the last occasion, that is before he was released to parole in December 2013, had apparently worked to decrease that. He explained to those who were treating him on that occasion that he was motivated by his obsessional desire to access pornography and that he became attracted to under aged girls.
The Offender himself described himself to Dr Furst as predatory and I accept that this is an accurate description of the offences before me. Dr Furst in his report diagnosed him as suffering from three disorders in the DSM 5, namely substance abuse disorder, recurrent major depressive disorder and paedophilia not otherwise specified. In particular, on p 11 the following appears as Dr Furst’s opinion.

“Mr Ocek has a lengthy history of emotional instability, chronic low self-esteem, depression, anxiety, restricted interests and social deficits .... he also suffered consider childhood trauma both physical and sexual and both actual and perceived rejection. He has a maladaptive coping style, is prone to anger and depression and has a high level of dysfunctional personality traits, including, being somewhat narcissistic, manipulative and exploitive of others.”

I accept Dr Furst’s opinion that the most relevant clinical disorder from which he suffers is paedophilia, which I also accept is a disorder of sexual arousal characterised by deviant fantasies, thoughts and behaviour, in the form of chronic hyper sexuality, use of sex as a means of and distorted cognitions about women and an attraction to younger girls. That opinion appears on p 12 of Dr Furst’s report. He also described him as having.

“An unstable personality with a tendency towards manipulation and exploitation, impulsivity, hyper sexuality, poor impulse control, inability or unwillingness to apply strategies learnt in therapy programs such as CUBIT and his low mood probably all contributed to his offending behaviour.”

Dr Furst recommends that he remains under the care of psychiatrist whilst in custody to monitor his mood and the possible need for psychotropic medication. He also needs to continue to take the current medication regime referred to at p 13 of Dr Furst’s report. Dr Furst has also recommended that when the Offender is released from custody that he be treated with one or other form of anti-libidinal drug treatment. He suggests some further structured sex offender treatment programs like CUBIT might be recommended, but in Dr Furst’s view it is not likely to be of great benefit in improving his prospects of rehabilitation.
I accept these opinions. I accept that the best treatment for the rehabilitation of this offender based on the opinion of Dr Furst would be through treatment with anti-libidinal medication. This would have to be at the time of release however, because it is no longer provided to New South Wales prisoners unless an inmate can afford private treatment.
By the time this offender is due for release it is unknown what the situation or policy would be, but he is unlikely to have access to any resources given the length of time he has already spent in custody and the lengthy term of imprisonment that he will receive in due course as a result of these offences.
On the likelihood of recidivism Dr Furst offers this opinion:

“Mr Ocek has multiple prior sex offences and evidence of sexual deviance in the form of paraphilia not otherwise specified. He belongs to a group of adult male sex offenders generally considered to be at high risk of reoffending.”

I accept this opinion. Dr Furst goes on to note that the offender has accepted his guilt and made some expressions of remorse and victim empathy but also makes the point that he has done so on the previous occasions victims of those offences.
The offender has written a statement tendered as part of the evidence on his behalf on sentence. On a superficial level it appears to indicate a level of contrition and remorse but I do not accept that this can be accepted as genuine at face value. He does not in that statement address the fact that when he was being sentenced by Arnott J in 2013, expressing similar statements of remorse and victim empathy and having that taken into account, he had almost at exactly the same time as having committed the offences for which he was being sentenced by Arnott J, been involved in many of the offences before me, in particular those involving his actual sexual contact with the complainants RW and JW.
His victim empathy would therefore appear to have been limited only to the offence for which he had been caught. He is manipulative. That is the nature of his offending and in my view some of the statements he has made in this document and probably also to Dr Furst have the flavour of attempting to manipulate the Court and those providing reports for him for the Court.
In May 2013, when being, sentenced by Judge Arnott, he informed the Court that he thought his compulsive viewing of pornography and attraction to underage girls, and the need to communicate with them, was harmless. At the very time he was providing this information for the Court he knew that he had committed all of these earlier offences before me. He could not genuinely have held a view that what he had done was harmless.
He displays a level of insight into his offending behaviour, but in my view it is superficial. Despite treatment being provided, which on the face of it appeared to be partially successful before his release to parole, almost as soon as he was released, within only a few weeks, he had obtained a phone in the name of a person who did not exist and started to communicate with some of the victims of these offences, using the false identity of a teenage boy, knowing these young girls to be underage, turning the conversation rapidly into online sexual conversation and in some cases actual sexual contact very soon thereafter.
He continued to do some of this even after being charged by police in May 2014 for failure to comply with his reporting conditions and continued to engage in some of these sexualised texting behaviours with some of these victims between May 2014 and July 2014 when he was ultimately arrested. He is manipulative and dangerous and at high risk of further offending. His prospects of rehabilitation are very poor in my view. There is a need for the sentences here to protect the community from this offender.
The sentences should also send a clear message of general deterrence. These are regrettably prevalent offences and difficult and costly to detect. Sentences must also punish the offender adequately for his offending behaviour and amount to a clear and public denunciation of this behaviour. The provisions of s 3A of the Crimes (Sentencing Procedure) Act, 1999 are relevant for all of the State offences and s 16A of the Commonwealth Crimes Act, 1914 for all of the Commonwealth offences. I have and will take all these principles into account when determining the appropriate sentence for each of these charges. In the circumstances, it is of course trite to say that for all of these offences, terms of full-time custody are the only sentences available and in any event the offender, as I have said, has been in custody full-time bail refused since July 2014.
So I then turn to the specific counts which arise, with a consideration of that background and, when assessing each of them, taking into account those subjective circumstances, the fact of the early pleas of guilty and the other matters to which I have just referred.
Count 1 is a charge contrary to s 17 of the Child Protection (Offenders Registration) Act 2000 of failing to comply with reporting obligations by failing to report his use of a mobile telephone number in the name of Paul Meade. This offence carries a maximum penalty of 5 years imprisonment and can be and usually is dealt with summarily. He asks that when sentencing him for this offence I take into account an additional offence in a schedule to a Form 1, which is a further offence contrary to s 17 of failing to comply with reporting conditions, also occurring on 24/7/2014 by failing to report social media account user names Alf Duncan and Al Love.
In appropriate circumstances, taking a Form 1 matter into account, would normally require a longer sentence, certainly for it to be taken into account in a meaningful way, but in the factual circumstances here it seems to me that it does not. The same applies to a related offence, which I must deal with after sentencing. There is another offence contrary to s 17 of failing to comply with reporting conditions occurring on 30 May 2014 by failing to report the email address [email protected]. There was a plea of guilty to this in the Local Court. He was charged with this offence after the initial visit of the police on 30 May 2014.
The facts were tendered and it was put over for sentence, but in the meantime all the other material was discovered and so for reasons best known to everybody who appears in this Court apart from me, it has been sent up to this Court pursuant to s 166 of the Criminal Procedure Act, 1986 to be dealt with as a related offence. It ought to have been added to the first Form 1. Whilst it is a separate offence, in the overall context of what will be lengthy sentences for the more serious matters covered by this indictment, the relevant sentence for this related matter could never lead to any longer overall period of imprisonment and in fact had it been for sentence alone it may not have even been necessary to impose a term of imprisonment for this related offence at all, given the surrounding circumstances.
The only appropriate way of dealing with this matter in due course is pursuant to 10A of the Crimes (Sentencing Procedure) Act, 1999, that is conviction but no further penalty necessary. Of course, this is a complete waste of the Court’s time, the registry’s time and everybody else’s time in this matter. It ought to have been discontinued in the Local Court or dealt with to finality in that Court. Nonetheless I have no control over that and must deal with it.
As summarised then, these three offences arose when the police visited the offender at his house on 30 May 2014 to check his compliance with the reporting conditions. He was not at home but a friend was there. That friend called the offender who came back to his unit. At police request he gave them a phone which was in his possession. Contact information and internet history had been deleted. Police looked for previously purchased apps which had been deleted and also saw that a number of social media applications had been previously downloaded and there were a number of dating applications. The email address being used as the Apple ID was [email protected]. Police seized the phone and interviewed the offender. He admitted that it was his phone that he had had since February 2014 and that no one else used it. He admitted that he used that email address as his Apple ID but that it belonged to a friend and he only used it because his own email would not work.
He gave police the password for the Apple account which, as it transpired, was correct. He was charged with failing to disclose his use of that email address, which, as I have said, is the related offence for which I must sentence him in due course. He pleaded guilty to that charge in the Local Court.
Police then forensically examined this phone and found that there had been 322 text messages deleted which had been used in social networking applications linked to two phone numbers. Most of these messages were of a sexual nature including requests for erotic photos and requests for sex. Police then obtained a search warrant for the offender’s premises and executed it on 24 June 2014. When they arrived they found the offender leaving the premises carrying an esky.
There was a phone inside that esky which had a SIM card in it which was one of the phone numbers linked to the 322 deleted text messages found on the phone seized earlier. The offender was questioned about that phone and told police he found it three weeks earlier and was planning to sell it. Items located on that phone indicated that this was not true. The offender had been using this phone over a longer period and further had used it with the SIM card for the other phone number connected with the 322 text messages previously found. That other phone number, ending in 291, was registered to a person and address which was fictitious, namely Paul Meade.
The offender’s failure to disclose his use of that particular number is the subject matter of count 1. Both of these phone numbers had been used on various social media sites including Skype and Viber. Examination of the phone found that the offender had used social networking accounts in false names including Alf Duncan, used in connection with Skype and also a Viber account. Another profile, Al Love, had been used for a Facebook account using one of those two telephone numbers.
The offender used a profile picture for some of his fake profiles to suggest that he was a young male, probably about mid-teens. In fact he was a 40 or 41 year old male whose genuine profile pictures, including those with a parrot sitting on his shoulder, looked nothing like the attractive young teenage boy wearing trendy sunglasses and clothes in the fake profiles. The offender’s failure to disclose his use of these social networking accounts is the subject matter of the first Form 1 offence.
The offender was on parole at the time he committed these offences of failing to comply with reporting conditions, making this offending more serious. This is, however, a relatively minor substantive offence compared to the very many serious offences covered in this indictment.
I have concluded that a fixed term of 6 months, taking into account the Form 1 offence is appropriate and as I have said, will be dealing with the related offence pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999.
Count 2 is an offence contrary to s 92H(2) of the Crimes Act, 1900 of possessing child abuse material at Hornsby on 30 May 2014, which carries a maximum penalty of 10 years imprisonment.
Police conducted a forensic examination of the phone which had been found in the esky and discovered 9,490 images and 302 videos on it. The computer program which would automatically categorise the images and videos according to the CETS scale could not be used on the phone so police were required to look at them. The majority depicted female children and adolescents. The majority of those fell within categories 1 and 2 of the CETS scale. A copy of the CETS scale is tendered as part of the Crown bundle on sentence. I will not read it onto the record.
The summary of these images and videos is also tendered as annexure E and includes a large group of category 2 images in fact depicting the complainant in counts 22 to 25 inclusive engaged in sexual activity, but alone and not involving an adult. There are also similar images involving the complainant in counts 37 and 38. In due course I will deal with these specific offences but I accept that these complainants had been manipulated and groomed by the offender so that they ultimately created these images and videos and forwarded them to him to possess. He was therefore not just in possession of child abuse material that he had downloaded from some website or anonymous source, but in fact was the instigator and the creator of most of it.
This offence, count 2, was also committed whilst he was on parole for an identical offence of possessing child abuse material, but involving far fewer images. There is no suggestion in Judge Arnott’s sentence judgment that the 42 images which were the subject of the s 91H charge before him, was of any known person. Here, a very large number of the images and videos are of a known child, who I accept was groomed so that she was prepared to create those images and provide them to the offender. That renders this offence more serious as does the fact that he was on parole for exactly the same offence and had in fact been instrumental in the creation of this material between April and July of 2014, even after police had arrested him for the other offence in May 2014.
In my view this offence therefore is at about the middle of the range in terms of objective seriousness. I am conscious that the s 91H(2) offence dealt with by Arnott J was agreed by all parties and assessed to be at the bottom of the range for these offences, but the facts surrounding this possession charge before me are different and more serious. For that reason I am of the view that it is about the middle of the range. A starting point for this offence should be two years with a 25% discount, therefore 18 months imprisonment.
Count 3 is a charge of persistent child sexual abuse contrary to s66EA(1) of the Crimes Act, 1900. Specifically the charge is that between 26 January and 20 March 2012 at Greenacre, the offender had sexual intercourse with the named complainant RW on seven separate occasions in circumstances of aggravation, namely that she was 14 years of age. This is by far and away the most serious offence charged in this indictment.
The maximum penalty for this offence at the time was 25 years imprisonment. It did not come to light until after the offender had been released to parole for offences committed around the same time in 2012, nor until after he had been charged with the failure to report charges and his phones had been seized and examined.
After discovering the material the subject matter of count 2 on the phone found in the esky, police then decided to re-examine the forensic report from the two phones which had been found in the offender’s possession when he was arrested in May 2012. They located sexually explicit images and videos of the complainants RW, who is the relevant complainant for counts 3 to 7 inclusive, JW, who is the complainant for counts 8 to 17 inclusive, and KM, who is the complainant for counts 18 to 20 inclusive. There were also at least 20 photographs of penises.
The videos involving the complainant RW were of a serious nature and it depicted her and the offender himself actually engaging in various forms of sexual contact which fall within category 4 of the COPINE scale. Annexure F summarises these videos. They were all created in the early part of 2012 before he was arrested, sentenced and imprisoned and the offender’s creation of this child abuse material forms part of count 4 in this indictment.
After re-examining the reports from these phones police contacted a number of people who the offender had been in contact with on line or by phone and a picture then emerged that the offender had been contacting several young girls in early 2012, at the time he was engaging with the police officer, posing as a young girl online and continued to do so after his release from prison in December 2013.
At around the same time as the police were discovering this material in 2014, the complainant RW contacted police in Queensland, made a complaint about the offender and then spoke to New South Wales Police, who were now investigating the offender. These statements made by her to police form the subject matter of this persistent child sexual abuse charge.
I accept that in 2011 the offender set up a fake Facebook profile in the name of Paul Harris. He used the photos of a young male in his mid-teens, to which I have already referred, apparently attractive, dark haired, well-toned, wearing trendy clothes and sunglasses. The complainant RW was 13 in 2011 and turned 14 in early 2012. She accepted a friend request from Paul Harris, who she thought was a young male of about her age and they started to chat daily, initially about school. They exchanged telephone numbers and after a while the offender started to sexualise the conversations and to ask her for explicit pictures of herself.
These requests became increasingly frequent. The offender on one occasion sent her a picture of a penis. At all times she thought she was communicating with a teenage boy. They started to talk about sex and towards the end of January 2012, after the complainant had turned 14 they agreed to meet in a park near her house in the Blue Mountains on 24 January 2012. The offender did not turn up but told the complainant that this was because he thought she would not turn up. This in my view was just one of the many forms of manipulation engaged in by the offender.
They arranged to meet again on 26 January in the park and that meeting in fact did occur. The offender lived in Greenacre at the time and on this and six other separate occasions between 26 January and 20 March 2014 he drove up and collected RW and then took her back to his unit in Greenacre where he engaged in sexual intercourse and other sexual conduct with her.
She had just turned 14 and he was 41 for at least half of this period.
It is these sexual acts on these seven occasions that constitute the subject matter of count 3. The gravamen of this offence is that an accused engages in conduct which amounts to a sexual offence on at least three occasions over a period of time. As I have said, there were seven separate occasions over a two month period and according to the agreed facts the accused, by pleading guilty to this offence, admits that he committed 32 acts amounting to sexual offences comprising 25 acts of sexual intercourse and seven indecent assaults.
The statutory circumstance of aggravation is that the complainant was under 16, namely 14 at the time. Each of the acts of sexual intercourse with a child between 14 and 16 could have been charged separately as offences contrary to s 66C(3) and as such each would have carried a maximum penalty of 10 years imprisonment. Each of the acts of indecent assault with a child between 14 and 16 could also have been charged separately contrary to s 61M(2) where there would have been a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

It is both necessary and appropriate to have regard to the nature of each of the sexual offences comprising this overall offence and the maximum penalties which would have been available for each had they been charged separately. The High Court in Chiro v the Queen [2017] HCA 37 makes that clear.
The agreed facts in this sentence overall are extremely lengthy, comprising 71 pages. For this offence of persistent child sexual abuse the specific facts are found in paras 22 to 88 inclusive. They are thus extremely lengthy and set out considerable detail of the 32 sexual acts between the offender and the complainant over this two month period.
I will summarise them as succinctly as possible for this judgment and with as little salacious detail as possible, but indicate I have read the detail for each and every one of them. This judgment will be available for publication in due course and for distribution, which is appropriate especially where denunciation and general deterrence are important considerations, as they are here. The complainants of course will not be identified, but there is a need to provide at least some detail of the offences in order to make findings about the objective criminality and moral culpability of the offender and to do so in an open and transparent manner.
However, the offender himself is obviously a paedophile and diagnosed as suffering from paraphilia, and the Court is only too aware that there are others in the community with similar tendencies. I will not permit people such as this offender to obtain secondary gratification out of the necessary publication of details of offences in a sentence judgment such as this, and thereby perpetuate the child exploitation inherent in all of these offences. Some detail cannot be avoided, but as much as possible in this sentence I will approach the facts in a general way.

What I am about to do now is to embark on a summary of the facts for the seven occasions that constitute this offence. I will adjourn until tomorrow
to continue this Judgment because it is now 4pm and the offender will need to
be returned to prison custody overnight and not be forced to remain in the
cells.

HER HONOUR: This is a continuation of the sentence judgment commenced yesterday, 16 April.
As referred to earlier in this judgment, the first occasion covered by the charge which is count 3, was on 26 January 2012. The offender met with the complainant at a park near her home in the Blue Mountains. She got into a car with him, initially thinking it was this young man with whom she had been conversing online but soon realised that it was a much older man, although at the time she did not realise how much older. The offender was well aware that she was only 14 because of their texts and other conversations leading up to this first meeting.
She agreed to travel down to Sydney with him and they drove to his address in Greenacre. Similarly to all later occasions, the offender’s planning to commit this offence went beyond the prior grooming of the complainant because he pulled up at the side of the road near his apartment and told her to get out and walk to the unit, so that she could not be seen by the neighbours. She did so and he left the door open for her to come in. During this first incident he told her his true age and gave her some alcohol. He put on a pornographic movie and started to touch her in a way which amounted to indecent assault. The details of three aggravated indecent assaults can be found in paragraph 33 of the agreed facts. He then stood up and told her to fellate him. She did not initially agree, so he put his hand behind her head, moved her towards him and she did so. This is an episode of sexual intercourse with a person between 14 and 16 and the offender filmed it. The details of this conduct are to be found in para 34 of the agreed facts.
The offender then engaged in penile vaginal sexual intercourse with the complainant without using a condom. The complainant experienced pain, and complained of that, but he continued, withdrawing his penis before ejaculating onto her stomach. He filmed this episode of sexual intercourse which is dealt with in para 35 of the Agreed Facts. The complainant had a shower and then went back into the lounge room with the offender and drank more alcohol. He continued to groom and manipulate her by telling her she was good at kissing and sex.
There was then a further episode of fellatio which he filmed. That sexual intercourse is dealt with in para 37 of the Agreed Facts. He then suggested anal intercourse. The complainant was reluctant, but agreed. That occurred as described in para 38 of the Facts and he filmed it. He did not use a condom and he ejaculated into her anus. The complainant experienced pain as a result of this sexual intercourse.
After this event they returned to the lounge room and the offender gave the complainant gifts of a small hip flask, a necklace and a Samsung Galaxy mobile phone, which he told her to use to contact him. He told her to leave the unit separately from him and meet him where he had dropped her previously and then drove her back to the Blue Mountains. He used this method of distancing the complainant from his premises on subsequent occasions, being further planning in the commission of this offence.
The offender contacted RW frequently during the following week, continuing to groom and manipulate her by complementing her saying she was good in bed and similar comments. The complainant experienced pain on urination and other lower back pain during the week after this first encounter. The offender also tried to convince her to see him again. She initially refused but he threatened that if she did not he would send the videos he had made to her friends and family. He humiliated her by calling her a slut. He told her that he had contacts and could get police to charge her with prostitution because she had taken gifts for sex. She was scared at these threats, but she was only 14 and was also flattered by the attention, compliments about her skills in bed and similar, so she agreed to meet him again.
The second occasion was on 11 February 2012. Again he picked her up in the Blue Mountains and drove to Greenacre where there were further episodes of sexual intercourse and indecent assaults, similar to those which had occurred on 26 January. The details appear in paras 44 to 49 inclusive of the Agreed Facts. On this occasion he gave her some alcohol to drink but also gave her alcohol to take home as a gift. He filmed an episode of cunnilingus ignoring her request not to show her face. There were also two episodes of penile/vaginal sexual intercourse on this second occasion, after which the offender drove her back to her home. In the days following this episode he continued to send Facebook messages to her, complimenting her and continuing to groom her for further sexual activity.
The third occasion occurred just before the offender turned 41 on 23 February 2012. He made arrangements for the complainant to stay over at his house on a weekend. The complainant became aware that one of her friends, one of the other complainants, JW, had been added as a friend to the offender’s fake Facebook profile of Paul Harris. JW was a friend of RW and it became clear to RW that JW thought she was in a relationship with the offender in the guise of Paul Harris.
On the way to his house the offender started to talk about JW and his interest in her sexually. The offender drove the complainant on this occasion back to his unit in Greenacre as had previously occurred. There were episodes of indecent assault and penile/vaginal intercourse which are described in para 53 of the agreed facts.
They then sat on the couch and he gave her some alcohol, also gave her two small gifts and took her out for lunch at McDonald’s. Subsequently they started to engage in sexualised conversations, he started to flatter her again and told her that he wanted to marry her and that he would give her a ring. There was then an indecent assault as set out in para 55 and an act of penile/vaginal intercourse which the offender recorded on his phone.
Afterwards they played cards and drank alcohol. The complainant drank almost a whole bottle of Baileys over that evening, also some wine and several beers. She woke up naked the next day and there then ensued an act of forced fellatio which is described in para 56. The offender filmed one act of penile/vaginal intercourse on the bed and two episodes of fellatio on this third occasion, and he then drove her home.
Over the following weeks the complainant sold the Samsung phone that she had been given, which led to arguments with the offender. As a result the complainant blocked him as a Facebook contact. During the arguments that ensued, apparently on the telephone, the offender told her that he would show people the videos he had made of her and as a result of these threats she unblocked him.
The fourth occasion occurred in the days immediately leading up to the offender’s birthday and he continued to pressure her to meet him. She was reluctant but in any event said she would not do so unless he gave her an iPhone 4. Eventually on 21 February 2012 she agreed to visit again and he picked her up from her home as usual. He drove her to his house in Greenacre but on the way stopped at a small shopping centre and came back to the car with a white leather ring box. There was one episode of penile/vaginal intercourse at his home as described in para 63 after which he gave her the ring and asked her to marry him. It must be recalled that at that stage she was 14 and he was 41. He then drove her home.
The fifth occasion occurred on a Saturday afternoon in March 2012 when he again picked her up from her home and drove her to Greenacre. After they got to his house he gave her a number of items including a second‑hand iPhone 3 and other items and set the phone up for her to use. There then ensued an episode of penile/vaginal intercourse during which he used a condom, being the only occasion on which that had occurred. This is described in para 66 of the agreed facts.
The offender then produced some sex toys as described in para 68 and there were episodes of sexual intercourse as described in that paragraph in the agreed facts. After this the offender smoked some cannabis and offered some to the complainant but she declined. There was then an indecent assault as described in para 69.
They went out for a while and then returned to the unit. After doing so the offender wanted to have sexual intercourse with her again but she said she was too tired. He ignored her wishes, got on top of her and there was penile/vaginal intercourse as described in para 72. During this act he put one of his hands on her throat and applied pressure and held her down her right arm. She was having difficulty breathing and tried to push his hand away but could not. He then released his grip on her throat but held her down during the act of intercourse until it came to an end. She asked why he was choking her and he apologised. Not surprisingly the complainant was scared as a result of this episode. He then apparently drove her home again.
The sixth occasion occurred after they had remained in contact for the following two weeks. The offender kept asking RW for nude photographs, which she refused. Again he threatened to send the videos he had taken of them engaged in sexual intercourse and other sexual behaviour unless she agreed to continue seeing him. She made an excuse again that she would only see him if she got an iPhone 4. He told her that he had one so she agreed to see him again. This was the sixth occasion in late February, early March 2012. The details of the sexual conduct appear in paras 75 to 80 inclusive of the agreed facts and involve three acts of penile/vaginal intercourse and one of forcible fellatio. He drove her home the next day in the usual manner.
The seventh occasion occurred overnight on 17 and 18 March 2012. The offender collected her as usual from her home and drove her to Greenacre and gave her alcohol to drink. There was then an act of indecent assault and three acts of sexual intercourse during that day and overnight. He gave her a bottle of Baileys to take home and some other small gifts. The details of this sexual contact are described in paras 82 to 86 of the agreed facts.
These seven separate instances then are the occasions during the stated period during which the offender committed sexual offences on the complainant who at the time was 14. They are the subject matter of count 3. There are 32 separate sexual offences constituting 25 events of sexual intercourse with a child between 14 and 16 and seven aggravated indecent assaults of a child between 14 and 16.
This offence is clearly enough very serious. The maximum penalty of 25 years makes that clear. In its own terms it is also objectively serious because, as I have said, there were 32 separate sexual offences committed on the complainant by the offender over a two month period on seven different occasions. Further there was a significant age difference between the complainant who was only 14 and the offender who was 41. They came about as a result of his grooming her from the beginning, using a false identity, making it seem that he was a young male of at least an appropriate age to be in touch with 14 year old girl.
The sexual offences themselves cover the whole range of sexual intercourse activities including penile/vaginal sexual intercourse, anal intercourse, fellatio, cunnilingus and also the use of sex toys for vaginal penetration. He only ever used a condom once, but on other occasions withdrew his penis before ejaculating. That of course does not eliminate the risk of sexually transmitted diseases nor entirely eliminate the risk of pregnancy. The indecent assaults also covered a wide range of physical activity.
He engaged in planning additional to the grooming by insisting that the complainant arrive and leave his premises separately from him so she would not be seen. He would always lock the door whilst inside. Sometimes he would give her alcohol. The penetrative sexual intercourse was usually vigorous. He was persistent both in seeking further contact but also insistent on sexual intercourse when he wanted it even though she did not always agree. On at least one occasion he choked her or at least started to choke her which caused her fear.
The grooming included giving her gifts but then telling her that because he had given her gifts she was obliged to agree to continue having sex with him. Further he filmed many of the events and threatened to send them to her family unless she continued to agree to have sex with him.
The law provides that the age of consent for sexual activity is 16 and that is because young people, albeit that they may be beginning to explore their sexuality and to do so by contact with other young people, are not emotionally mature enough to understand fully the nature of such sexual contact and certainly are not mature enough to withstand the grooming behaviour of adult paedophiles like this offender, nor to make considered choices about sexual contact with people so much older.
The Court of Criminal Appeal in the decision R v Nahlous [2013] NSWCCA 90 said the following:

“There is a public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill equipped to protect themselves or respond either appropriately or in their own interest.”

Equally apposite are the dicta of the Court of Criminal Appeal in R v Fuller [210] NSWCCA 195 dealing specifically with the inherent criminality of those who would engage children in online or internet sexualised behaviour. It is clearly the law that even such online communication can lead to significant harm even if sexual activity does not ultimately occur, but as stated in that decision the potential for harm is greater if sexual activity does take place.
All of these matters before me, both State and Commonwealth, with the exception of count 21 being a blackmail offence involving an adult, arise where the law seeks to protect children from adult sexual predators and to recognise that this is increasingly likely through the use of online facilities.
This is in my view a very serious offence for all of these reasons objectively at the very least at the middle of the range of offences capable of being charged under this section and possibly into the top of the range. It does not fall at the very top of the range for offences capable of being charged under this section largely because of the age of the complainant, however there is a very large number of offences covered by this one charge, which is a factual matter to be taken into account in determining the objective criminality.
I have ultimately concluded that there should be an overall sentence of 15 years for this offence, having taken into account the early plea of guilty and considering the subjective matters to which I referred yesterday. There are some special circumstances, especially the need for a lengthy period of supervision in the community in due course and that there will be a degree of partial accumulation. That finding of special circumstances would apply to all sentences nonetheless nothing less than a 10 year non‑parole period for this offence is appropriate in my view.
Count 4 is a charge that between 26 January and 20 March 2012 at Hornsby the offender produced child abuse material. That is an offence contrary to s 91A(2) of the Crimes Act, 1900 which carries a maximum penalty of 10 years imprisonment. The material, the subject matter of this charge, are the videos the offender took of his sexual contact with the complainant RW on 25 January 2012 and in February 2012 as described, being the first and third occasions, as part of count 3. This is a separate charge, and I will deal with it as a separate charge, but I have already referred to the relevant facts when dealing with those first and third occasions that are part of count 3.
When sentencing for this offence, the offender asks that I take into account one offence on a schedule to a second Form 1 document, namely a charge of being in possession of the very same child abuse material which is the subject matter of that count. It seems to me that this is a very odd and completely unnecessary situation. He produced the videos of his interaction with RW in large part for his own use, albeit he used some intimidatory methods in his subsequent use of them with RW and later in showing them to JW.
He was in possession of that child abuse material when he was arrested on 24 May 2012, which is the subject matter of the Form 1 offence. He had not attempted to disseminate it in any way and that was not the purpose for producing it. He was in possession of it for his own use, but it left his possession on 2 May 2012 when he was arrested and the phone was seized. Even though that phone was subject to forensic examination, police at the time did not even notice this material, until the officer involved in the investigation of the offences before me, went back after July 2014 and re-examined the telephone reports taken from that phone back in May 2012 and found all of this child abuse material and was able then to identify the complainants, which led to these much more serious offences of actual sexual assault in relation to two of the complainants.
Why it was necessary to pursue this Form 1 offence of possessing that which he had produced in those circumstances is hard to fathom. It does not and cannot in my view in any way increase the criminality of the substantive offence, count 4, albeit that I am obliged to take it into account. All it has done is to make this whole sentencing procedure more cumbersome and difficult to finalise. It is unfortunate that greater thought was not given when this was all negotiated.

The fact that he videoed some of the acts constituting the persistent child sexual abuse offence is part of the factual matrix for that offence, count 3. It elevates the objective seriousness of the offence in that, not only was the offender engaging in acts of sexual intercourse with the complainant, but he was at the same time in relation to at least two episodes, filming or videoing them, at the very least for his own sexual gratification on future occasions and as the facts will indicate, also used them as part of his intimidation of the complainant to encourage and persuade her to continue sexual contact with him.
The prosecution has elected to bring count 4 as a separate offence and indeed it is a separate criminal offence. In its own terms count 4 is about the midrange in terms of objective seriousness. The complainant was only 14. The offender produced the child abuse material for the reasons I have just articulated. There is no suggestion however that he did so at the time for wider dissemination, although he did threaten to disseminate some of the images as a form of threat to encourage ongoing contact and did on one occasion show JW the videos involving RW to create jealousy and humiliate RW. This offence then, possessing child abuse material, in those circumstances, is serious, at about the middle of the range of offences capable of being charged under this section.
Taking all of that into account, including the discount for the plea of guilty and all of the subjective material, I have concluded for this offence on that finding there should be a term of imprisonment of 18 months. I am conscious that there should not be any double counting by any form of accumulation of this sentence onto the sentence of count 3 because I have taken it into account as part of the factual matrix in determining the objective criminality of count 3. Therefore the sentence for count 4 should be served concurrently with the sentence for count 3 to ensure there is no double dipping.
A similar situation exists in relation to count 5, which is the charge that between 25 January and 21 March 2012 the offender exposed RW, who was under 16 years, to indecent material and intoxicating liquor with the intention of making it easier to procure her for unlawful sexual activity. This is an offence contrary to s 66EB(3) of the Crimes Act, 1900 which carries a maximum penalty of 10 years.
This is an entirely unnecessary charge again, just making more complicated the whole of this sentencing process. It is a grooming offence, expressly stated as such. Just as in relation to the filming, I have taken into account the fact that the offender groomed the complainant in order to persuade her to engage in sexual activity with him and that this grooming included all of the initial Facebook contact, praising her for her apparent expertise in sexual matters and also providing her with alcohol, access to pornographic material and for that matter also gifts. This offence is just a restating of that finding, which increases the objective criminality of the s 66EA persistent child abuse charge. So whatever the proper sentence is for this offence, it would always have to be ordered to be served concurrently with that more serious offence in order to avoid double dipping.
This particular offence, count 5, is not towards the top of the range. There was, on the facts, only limited exposure to indecent material and alcohol was only made available on some of the occasions. After taking into account the discount again it seems to me that a term of 2 years is appropriate but to be served concurrently with the s 66EA sentence.
Count 6 is a charge of intimidation contrary to s 13(1) of the Crimes(Domestic and Personal Violence) Act 2007, which carries a maximum penalty of 5 years imprisonment and is able to be dealt with summarily and usually is. Again, with respect, this was not a necessary charge to be pursued in this indictment. It refers to the fact that in order to persuade the complainant to continue having sexual contact with him the offender threatened to circulate the explicit videos and images that he had made of their contact with each other and also threatened on one occasion to have her charged by the police for prostitution. This is of course very low behaviour and was part of the ongoing manipulation of this young 14 year old girl.
However, yet again I have taken this fact of intimidation on at least three occasions into account for the purpose of persuading her to continue to have sexual contact with him, as part of the factual matrix in determining the objective criminality of the persistent sex abuse charge. It makes it more serious and is part of the ongoing grooming and manipulation.
This offence is a summary offence and should have been dealt with in the Local Court, if at all, or perhaps added to a Form 1. A fixed term of 6 months is appropriate, but for the same reason should be concurrent with count 3 to avoid the prospect of double dipping.
Count 7 is a Commonwealth offence contrary to s 494.27(1) of the Commonwealth Criminal CodeAct, 1995 of using a carriage service to transmit communications to RW, who at that stage was 15, with the intention of making it easier to procure her to engage in sexual activity. This offence occurred between 14 January and 20 January 2014 just before the complainant turned 16.
Just as for all the Commonwealth offences charged under this particular provision, the maximum penalty is 12 years imprisonment. Sentencing for this and all of the Commonwealth offences is to be done taking into account the provisions of Part 1B of the Crimes Act 1914 and in particular bearing in mind all of those matters set out in s 16A of that Part.
The facts are that the offender received a prison term for the earlier offences and was released to parole on 29 December 2013. He obtained the phone which was found and seized by police in May 2014. Before that occurred, however, on 14 January he sent a text to RW posing as someone else. He started to press her to help him engage the complainant JW for sex. There were text conversations in which he raised questions about who had alerted police to him back in 2012.
The complainant RW initially said it was JW’s father but then said it was her. Neither of these was true. Both posing as another person, and then after he had disclosed to RW his true identity, he started to sexualise the conversation again, trying to persuade her to have sex with him again. He specifically asked her age and knew that she was just under 16. It is not necessary to recite the detail of all of these conversations. They appear in paras 90 to 96 of the agreed facts.
On the day she turned 16 he sent her a birthday message acknowledging that he knew she was under age in relation to all of the other contacts. He continued to ask her to send sexual pictures of herself. Just after she turned 16 RW told her mother the whole history with the offender and they visited police in Queensland to make a statement, something about which I have already made reference.
This Commonwealth offence occurred in the second period of offending covered by all of the matters before me. It is serious. The offender knew that she was under 16, although close to 16. He pretended to be someone else initially to engage her in conversations, to in fact test the waters about her desire to have ongoing contact with him. Like all of the offences committed in the second period, he was on parole for offences of a similar nature. Perhaps most seriously, the first contact with RW occurred on 14 January 2014, only just more over two weeks after he was released to parole for those earlier similar offences.
With those matters in mind and in particular because of the lengthy history he had with RW, it seems to me that this is objectively an offence at about the middle of the range and a sentence of 2 years is called for.
I now move on to a consideration of counts 8 to 17. These counts relate specifically to the complainant JW who was an acquaintance of the complainant RW and nine months older than her. JW was 14 in early 2012 and turned 15 in April of that year. As referred to earlier, RW became aware during her encounters with the offender, that he had also become a Facebook friend with JW, who had accepted a friend request from him in January 2012 when he was using the fake profile of Paul Harris. She thought he was a 17 year old boy. Her age, 14 at the time, was clear on her Facebook profile.
The offender and JW sent messages to each other and then after a week he asked her for her phone number which she gave him. They started then to send text messages to each other. The messages soon turned to talking about having sex. The complainant clearly thought she was talking to a 17 year old boy and the offender continued to groom her. It is clear from the messages that the complainant was reluctant to have sexual intercourse until she turned 15 and during the texts between them, the offender continued to try to persuade her to change her mind. He asked her to send photographs of herself naked in various positions and engaging in sexual touching of herself, which she did. These images were subsequently found on his phone. There were 69 images in category 1 of the CETS scale and 15 videos including eleven category 2, one category 3, and three category 4. He also sent her photographs of his erect penis and videos of himself masturbating and ejaculating. He did not show his face in these videos.
He used his phone in this way between 1 January 2012 and 2 June 2012 with the intention of trying to persuade her to engage in sexual activity with him. They constitute the facts for count 8 which is an offence contrary to s 474.27 of the Criminal Code Act, 1995 which carries a maximum penalty of 12 years imprisonment. Most of the images and videos JW sent him amounted to child pornography. He solicited this from her over a period between 1 January and 1 May 2012, which is the subject matter of count 9, an offence contrary to s 474.19 of the Criminal Code Act, 1995 which carries a maximum penalty of 15 years imprisonment. By sending her the photographs of himself which I have described, he exposed her to this indecent material with the intention of making it easier to procure her for unlawful sexual activity. This occurred over a period from 1 January to 1 May 2012 and is the subject matter of count 10 in the indictment, an offence contrary to s 66EB(3) which carries a maximum penalty of 10 years imprisonment.
During February 2012, the offender sent JW a text asking her to meet him. They arranged to meet in the park in Katoomba on a Saturday and he picked her up from Katoomba railway station. When she arrived and saw him, she realised that he was not the person in the profile picture, but by that stage the offender had so successfully groomed the complainant that she stayed with him. Travelling to meet a groomed child for sexual activity is in fact an offence, contrary to s 66EB(2A) of the Crimes Act,1900 and is the first of the three offences in the Form 1 #3 connected to count 10. It is entirely unnecessary. It does not in any way elevate the seriousness of exposing JW to indecent material with the intention of making it easier to procure her for sexual activity. The fact that the offender was prepared to travel from Greenacre to Katoomba to meet the child who he had groomed might arguably elevate the objective seriousness of the substantive offence, but otherwise this Form 1 offence is yet another entirely unnecessary offence pursued in this overall sentence, and yet again, makes this sentence much more complicated than it should be. It should have been withdrawn along with many other charges which were.
In any event, JW met him at Katoomba and got into his car. This was sometime in February 2012. She was 14. He had his phone on the dash of the car, pointing at the complainant. He reached over and put his hand in her underwear and there was digital penetration. That is count 11, the charge of sexual intercourse with a child aged 14. She tried to remove his hand but was unsuccessful. He also touched and licked her breasts in a way described in para 107 of the Agreed Facts which is the offence of aggravated indecent assault which is count 13. The offences of sexual intercourse with a child between 14 and 16 pursuant to s 66C(3) carry a maximum penalty of 10 years. The offence of aggravated indecent assault pursuant to s 61M(2) also carries a maximum penalty of 10 years with a standard non-parole period of 8 years. The offender filmed these acts through the camera on the dashboard. The fact that he did that is the subject matter of count 12, being a charge that between 1 January and 1 May 2012 at Katoomba he produced child abuse material in relation to JW, that is an offence contrary to 91H(2) of the Crimes Act, 1900 which carries a maximum penalty of 10 years. Again, I comment that this offence count 12 was completely unnecessary to pursue. The fact that he filmed the activity and created this child abuse material renders each of the sexual intercourse and indecent assault offences objectively more serious. Whatever the appropriate sentence is for this offence of producing child abuse material, in the circumstances, the sentence would always have been ordered to be served concurrently with counts 11 and 13. All of these three offences are part of the one criminal episode.
The offender then got out of the car and asked JW to do the same. She did not want to do so but he persuaded her and they walked to bushland a few meters from where the car was parked. They lay on the ground and he kept trying to expose her breasts, which she resisted. This is the first of the offences on Form 1 #4. Again it is entirely unnecessary and should have been discontinued. It is part of the factual matrix of what occurred next and just makes this whole sentence a great deal more complicated than it ought to have been. He then committed three acts of sexual intercourse including digital penetration, penetration with a vibrator and cunnilingus. This is described in paragraph 109 of the Agreed Facts. Again, for reasons very difficult to understand, two of these are to be sentenced as substantive offences, counts 14 and 15, and one is the second offence of sexual intercourse on Form 1 #4. According to the sentence table produced by the Crown, this Form 1 offence is the digital penetration, how it was that this ever occurred, does not bear logical examination. That Form 1 attaches to count 11, the sexual intercourse which occurred in the car. Just why this is so is not easy to fathom either. The two substantive counts of sexual intercourse which occurred outside the car involved cunnilingus and penetration with a vibrator it seems. The offender filmed all of this activity on his phone, producing a two minute 25 second video. The offender then drove her back to the station but on the way they visited the Mount Victoria lookout. There is a selfie photo taken of them there. The complainant is clearly a young girl, if anything looking a little younger than her 14 or 15 years and the offender is obviously a much older man. As I said, he then took her back to the station and she went home.
At the same time that the offender was committing these offences with JW, he was also engaging in the persistent child sexual abuse of RW as referred to earlier. Both complainants became aware of this. There were many phone messages between the offender and JW between 30 March and 24 May 2012. They were sexually explicit and he continued to ask to meet her for sex. The content of these messages and surrounding circumstances is set out in paragraphs 112 to 114 of the Agreed Facts. He continued to be manipulative. He compared her favourably with the complainant RW because by then, both girls had realised that they were in contact with the same person and that he was a much older man, not the young boy they had originally thought. He also became angry with JW, as can be seen during the course of these texts when she was unable to obtain the password to the phone the offender had originally given RW but which had been retrieved. He criticised JW for wasting his time and became increasingly insistent about wanting to have sex with her. He also allowed her to think that he was her boyfriend and talked about them getting married. By this stage JW was so successfully groomed by the offender that she did not realise the absurdity of such a suggestion.
In the same time period that this was occurring, the offender was also engaging in similar online conversations with another complainant, the subject of counts 18 and 19 in this indictment. Towards the end of this period the offender told JW that he wanted to spend more time with her and she agreed that he could visit her home on a day when her mother was at work. This was clearly, from the content of the texts, for the purpose of his having sex with her. This visit in fact occurred on a Sunday in May when the offender went to JW’s house in Katoomba at about 10.30am. They first talked and then sat on her bed. He showed her a series of videos he had taken of him having sexual intercourse with RW. This offence of disseminating child sex material is the second offence in Form 1 #3. It has nothing to do with count 10 which is the substantive offence connected to that Form 1. He told JW why he was showing her this and said that if she had sex with him he would buy her an iPhone. There was then an act of sexual intercourse with JW involving digital penetration which is the third offence in Form 1 #4. There was then a further episode of sexual intercourse involving penetration of JW with a vibrator, which is count 16. He filmed both of these episodes of sexual intercourse which is the offence of producing child abuse material, the third offence in Form 1 #3. Again, I make the comment that this Form 1 offence, although clearly a part of the activities occurring on the second occasion that the offender and JW had physical sexual contact, is actually attached on a Form 1 to count 10 and has nothing at all to do with that event, which was a charge of grooming.
The events between the offender and JW then occurred as described in para 117 of the Agreed Facts on the bed involving two acts of aggravated indecent assault which are offences 4 and 5 in Form 1 #4, during which he licked and kissed her breasts and also placed her hand on his erect penis and moved her hand up and down. He ejaculated and this was filmed. Count 17, the final count involving JW, occurred shortly afterwards. The details are as they appear in para 117 but in summary involved the offender’s digitally penetrating the complainant’s anus. This too was filmed. The offender then left and told JW to delete her texts so that her mother would not see them.
For a period after that, the offender continued to text JW in an attempt to have further sexual contact with her. In particular he was insisting on penile/vaginal sexual intercourse in the future, although she was somewhat resistant to adopt that course.
So in summary, the charges involving JW cover two Commonwealth offences of using a carriage service to groom a person aged 14, and using a carriage service to solicit child pornography from that person, one charge of exposing that person to indecent material with the intention of making it easier to procure her for sexual activity, and two separate instances on which he had physical sexual contact with her. One was in the car and bushes at Katoomba and one was at her home in Katoomba. They involved four acts of sexual intercourse on the first occasion and two acts of indecent assault, and three acts of sexual intercourse on the second occasion and two acts of indecent assault. Sexual intercourse as a whole included digital penetration, penetration with a vibrator, cunnilingus and anal digital penetration. Of all of this, only four are substantive offences arising from the first occasion, counts 11, 13, 14, and 15, and only two offences of sexual intercourse arising from the second occasion, namely counts 16 and 17. The other offences of indecent assault and sexual intercourse occurring on the first occasion are on a Form 1. Similarly one act of sexual intercourse involving digital penetration and two of indecent assault on the second occasion are Form 1 offences, but somehow or other inexplicably linked to the offence which occurred on the first occasion. It is impossible to attempt to unravel this situation.

He was particularly manipulative, taking advantage of her distress at a family break up which he then immediately turned into sexually explicit contact. The number of videos, the subject matter of count 23 is large over a relatively short period of time.
Count 25 is not so serious. The maximum penalty is 7 years, and as I understand it, the only evidence might be in the schedule of images which is part of annexure E.
On those findings, though, I have concluded that for the Commonwealth offences, 22 and 23, there should be a term of imprisonment of 18 months. For count 25 there should be a term of imprisonment of 12 months. Count 24, the State Offence, is again entirely unnecessary and again makes the whole sentence far too complicated, not the least because it is a State offence and cannot be sentenced in any aggregated way with the Commonwealth offences.
The facts for count 24 involve the offender’s procuring HP for the production of child abuse material and those facts are completely subsumed within the two Commonwealth offences of using a carriage service to groom her for sexual activity and using that carriage service to solicit child pornography. The sentence, however, must be set. It seems to me to be worthy of a sentence of about 12 months but it needs to be dealt with as completely concurrent with some of the other sentences to avoid double dipping.
Counts 26, 27 and 28 involve the complainant NR. They are three Commonwealth offences, contrary to s 474, occurring between 1 February 14 and 1 June 14. The first is yet another offence contrary to s 474.27 of using a carriage service with the intention of making it easier to procure NR to engage in sexual activity, she being a 13 year old girl at the time.
The second is a charge of soliciting child pornography from NR contrary to s 474.19 and the third is a charge contrary to s 474.27A of using a carriage service to transmit indecent material to NR. NR was born in January 2001 and so was 13 in 2014. When examining the phones in 2014 police found naked photographs of her on one of the offender’s phones. She lived in Queensland. The offender had contacted her via Facebook using the fake profile Al Love, a teenage male.
He was well aware she was young because of the nature of the photographs on her Facebook page. He pretended to know mutual friends and that he was 16. He initially said that they should date but she refused. He started to ask her to send photographs of her naked body but she refused. He then sent her a photograph of a naked male showing a penis. He kept asking her to send naked photographs of herself and when she refused and he persisted she turned off her phone and asked him to leave her alone.
He then threatened to tell her mother that they had been in touch and threatened that she could go to gaol. In response she sent a full length photograph of herself naked which she took in the mirror. He persisted for more of the same type and she tried to block him but unsuccessfully and he continued to contact her. She ultimately sent him about 14 or 16 photos in all, which were either full body nude photos or of the top half of her body naked. She sent these because she was too scared to tell her mother what had happened and he persisted in contacting her.
He told her that he knew where she lived because her location had been displayed on Facebook. He became more threatening when she did not contact him on Viber as requested and said that he was going to punch her and send her to gaol. This contact lasted for about three to four months in the first half of 2014, just after he had been released to parole for similar offences.
All of these three offences are below the midrange in terms of objective seriousness on the basis of these facts but not at the very bottom because he was persistent and when she made it clear she was not interested in what he wanted he threatened to tell her mother. The soliciting was thus accompanied by threats and bullying, that she could be referred to the police. For each of these offences in my view a term of imprisonment of 12 months is appropriate.
Counts 29 and 30 are both Commonwealth offences of the same type, 29 being an offence contrary to s 474.27 of the Criminal Code Act, 1995 and 30 being an offence contrary to 474.19 of that Code both involving the complainant MWL. They occurred between 1 January and 14 February 2012 so in the earlier period of offending. This complainant was born in 1997 and so was 14 at the time of the offences, even though the facts seem to say she was 15. The offender sent her a friend request in the fake identity of Paul Harris some time during 2012. He appeared to be a young male and she accepted his friend request.
They started to send Facebook messages to each other and exchanged phone numbers and then started to send SMS messages. The complainant said she was 15, although it would appear she did not turn 15 until June 2012. There was a text between them on 14 February 2012 which appears in para 162 of the agreed facts. In it the offender asks her for photographs of herself and starts to turn the conversation to requesting sexual communications from her which he called sexting, and makes explicit sexual references. He also suggested that they should meet and she declined. That was the last communication between them.
Whilst it is serious to try to groom underage children for sex, which is the nature of both of these offences, they are on their facts towards the bottom of the range for offences of this type. The appropriate sentence for each is six months.
Counts 31 and 32 are also contrary to s 474 of the Criminal Code Act, 1995, again the first being s 474.27, the second being s 474.19, both involving the complainant CBJ, who was 12 or 13 at the time. CBJ turned 13 in December 2013. Police interviewed her in August 2014 because they found a photograph of her in her school uniform on the offender’s phone when they were conducting the investigations between May to July 2014.
This is how the offences involving CBJ came to light. The offender made a friend request of her in late 2013 or early 2014. Again, this must have been almost immediately after he was released to parole for similar offences on 29 December 2013. He used the false identity of Alf Duncan and it is clear that initially he said, and she thought he was 12, which according to the facts was her age when she first met him but that does not accord with other facts, that she was born in December 2000. Not a lot turns on that. They continued to be in contact and he asked for photographs. She sent photographs of herself including one in a school uniform.
After about two months he started to talk about her in a sexual way and also called her on the phone. She hung up on him when the conversation became sexual. He asked that they meet up and she declined. He continued to send the same photograph of himself and she became suspicious that it was a fake photograph. They argued and she ended the conversation. Following that he became abusive and sexually explicit in his abuse during this argument because she would not comply with his requests.
The specifics of some of these texts occur at para 166 of the agreed facts. The request for child pornography on the evidence seems to be limited to requesting photographs of her in her bra. I can find no other evidence than that. The significant factual feature of these two charges is that the offender descended into nasty sexual threats and comments when the complainant, who he knew was only 12 or 13, was not complying with his request. That elevates the objective gravity a little, but overall these were at the bottom of the range of offences capable of being dealt with under the sections. In each case a six month term of imprisonment is appropriate.
Counts 33 and 34 are also charges contrary to s 474.27 and 474.19 of the Criminal Code Act, 1995, involving the complainant KB, who was a 13 year old girl. The first of them, as I have said, is characterised as a grooming offence. These two offences occurred in the earlier period, that is between 9 and 30 April 2012. The complainant used her real name and date of birth as July 1990 on her Facebook profile, so in November 2011 she was only 11.
In November 2011 she received a Facebook request from the offender using the false profile Alex Harvey and pretending to be a young male. The profile also listed a number of mutual friends and so she accepted his friend request. Initially there was general conversation between them. They exchanged telephone numbers and then started to communicate via SMS and Viber messages on their phones. As soon as this happened the offender immediately requested a photograph of her. She only ever sent clothed photos but he continued to press her for naked photos or suggestive photos. He started to talk about sex and she responded saying that she was not interested as she was only 13.
He sent her one of the profile pictures already tendered of a well-toned torso of a young male. He continued to send these sorts of messages to her up until April of 2012. The agreed facts say 2014, but that is clearly a typo and these two offences were committed in the earlier period of 2012. There also appears in the facts to be some confusion about her age, but not to the extent that it makes any difference in my view.
She was not interested in the sort of contact he wanted, but he persisted. Whilst this is serious, because he was clearly trying to engage her in sexualised behaviour, knowing or thinking that she was only 13 and pretending that he was a young boy, the texts, which appear at para 171, are not particularly sexually explicit and whilst he tried to solicit child pornography from her she did not agree. Both of these two, in my view, are toward the lower end in terms of objective seriousness for these sorts of offences and the appropriate penalty for each is six months imprisonment.
I note and take into account that this is the term of imprisonment found to have been appropriate by Arnott J when he sentenced this offender for an almost identical offence at almost exactly the same time period.
Counts 35 and 36 are two charges again contrary to s 474.27 and 474.19 of the Criminal Code Act, 1995, involving the complainant KD, who was 12 at the time of the offences and lived in Queensland. The facts say 13 but she was only 12, turning 13 in December 2014. The offender contacted her via a social media site in about May 2014 using the false name Alf Duncan and told her he was 12. They started texting. He said he wanted to date her and asked for a naked picture. She sent him a picture she had downloaded from the internet. They continued to send texts to each other.
KD discovered that he was not 12 but thought he was between 15 and 17, but at the suggestion of the offender, agreed to let her mother continue to think he was only 12 so they could stay in touch. Examples of the texting appear at para 174 of the agreed facts. I do not propose to read them onto the record but I accept that during this period he used sexually explicit language and suggestions to her, knowing that she was only 12.
On one occasion when she was at a party with an eight year old girl he asked her to send a naked picture of the eight year old, because he had in his words “never seen an eight year old vagina.” He sent her a picture of himself masturbating and she told him to stop. He encouraged her to take sexually explicit videos of herself. When she did not do what he wanted he became angry, threatened to put the sexually explicit photos on the internet and call the police and called her demeaning names including slut. This contact went on for about three months and eventually she blocked him, probably after her mother found the phone and sent a message to the offender asking if he knew he was talking to a 12 year old girl. He replied that he did and that he was only 12. This is a continuation of his manipulation and exploitation.
Both of these offences in my view are relatively serious. This child was only 12 and he was pretending to be a 12 year old himself, although later admitted to being 15 to 17. He was persistent and sometimes threatening. He sought to engage her in subterfuge by telling her mother that he was only 12, no doubt to permit continued contact. These offences were continuing, as for all other offences, whilst he was on parole for the same sort of offence, and what is more, after the police had discovered his failure to report in May 2014 and confiscated his phone. Police found images on his phone in August 2014 after he went into custody and interviewed this complainant. He was doing this blatantly with this complainant even at this late stage just up to the time he was arrested. Each of these is in about the midrange in terms of objective seriousness and the appropriate sentence for each of them in my view is 18 months imprisonment.
The last two charges are counts 37 and 38. Again, two offences contrary to s474.27 and s474.19 of the Criminal Code Act, 1995 involving the complainant PM. The second one is a State offence of intimidating PM with the intention of causing her to fear mental harm contrary to s 13(1) of the Crimes(Domestic and Personal Violence) Act, 2007 usually dealt with in the Local Court.
PM was 16 in early 2014 and turned 17 in May. The offender contacted her on Viber using the false identity of Duncan pretending to be an 18 year old male from Hornsby and pretending that they had a mutual friend. They started chatting on line. She told him she was 16. Very early the offender started to pressure her to send photographs, initially clothed, but then in underwear. She believed he was 18 and that they had a number of mutual friends so she sent three photographs, one of her naked. She also sent a number of sexually explicit videos. He sent her a video of him masturbating and pictures of his penis. She deleted them when she received them and said she did not want him to send that material.
After that the offender started messaging her daily, bombarding her with requests for explicit sexual images and photos. The details of some of these conversations are in para 181 of the agreed facts. She refused and said that she wanted to wait until they had met. He continued to pressure her and asked her to meet him. She refused and the following day woke to find a large number of messages on her phone including the threat to post the photos she had sent on Google and Facebook unless she sent him more photos and videos.
She was scared that he would make that threat good and so did send some videos but refused some of his requests. He tried to persuade her by offering to buy credit for her phone if she would send sexualised photos. They stopped communicating on 30 May 2014, being the date on which police visited his home on the first of the offences of failing to comply with reporting conditions. Police found the images she had sent him on his phone but as she was not a child, his possession of them does not constitute an offence.
Count 37 however is not an offence contrary to 474.27 as I originally said, but s474.19. Whilst the possession of these images does not amount to a State offence, because she is not a child, that provision of the Criminal Code Act, 1995 on the other hand defines child pornography material as relating to children who are or appear to be under 18. PM was 16, which was known to the offender. So his soliciting of these sexual implicit images and videos from her comprises this offence, which is count 37,
The use of the carriage service is serious in this way, but not a serious example of an offence under this section, nor is it however at the very bottom. It is a little below the middle of the range. This is because he was pretending to be a much younger person, only 18, and that they had a mutual friend. It is rendered factually more serious because when she did not want to comply with what he wanted he threatened and intimidated her, knowing that he, a 43 year old man, was in fact intimidating a 16 year old girl.
With respect, yet again, the fact that he intimidated her during the course of committing the offence of using a carriage service to solicit child pornography material should have been just treated as part of the factual matrix for that Commonwealth offence. Viewed in that way this particular Commonwealth offence is a little below the midrange in terms of objective seriousness.
The s 13 State offence of intimidation is entirely unnecessary and runs the risk of a sentencing judge double-counting. I will not do so. The s 13 offence in its own terms is not trivial but, if sentenced alone, may not have given rise to a term of imprisonment. However, threatening to publish sexually explicit picture is serious and, unfortunately, prevalent and, as I said previously, doing so on social media runs the risk of it remaining available for all to see forever. There should be, in determining the objective seriousness of this offence or the extent to which doing so increases the objective criminality of the Commonwealth offence, a consideration of general deterrence.
General deterrence plays a part in all of these Commonwealth offences as it does in all of the offences before me. There should be and will be a strong message sent to the community that engaging children for sexual purposes is entirely inappropriate, even if that be internet engagement and no actual physical contact. As I said, the authorities make it clear that going one step further after grooming, and engaging in sexual contact, renders both the grooming and the offending even more serious. All of these sentences must and will contain an element of general deterrence and condemnation of the offender for doing as he did.
For count 37, there will be an 18 month period of imprisonment and for count 38, 12 months but concurrent with the Commonwealth sentence.
So these then are each of the individual sentences for the individual counts. I indicate that I have read or had read to me, and considered, three victim impact statements from RW, JW and KB. Each of these complainants, I accept, has been adversely impacted as a result of their sexualised conduct with this offender. Even though there are no victim impact statements for the remaining seven victims of the sexual offences, I nonetheless accept that it is more likely than not that each of them has been adversely affected.
There is no specific separate evidence as such for any of the complainants of particular impacts on them, but I accept in the case of the three from whom there were victim impact statements read, that this offender has adversely affected their lives in many ways. Even without such statements, I accept that every one of these complainants of the sexual offences to a greater or lesser extent is likely to have some psychological scars as a result.
Clearly, that is the case for RW and JW. They were seriously abused by this offender who manipulated and exploited them, and the same applies to those others with whom he did not have direct contact but who ultimately came to understand exactly who they were dealing with and that is especially so for those who had been persuaded to send explicit photographs of themselves.
It is likely, in the experience of the Court, that all of them will to some extent or another engage in a form of self-blame, looking at events with the benefit of hindsight, and querying how this could have occurred. Hopefully, they will come to understand that they are in fact the victims of these offences and they should not blame themselves.
It is this offender who is to blame and their involvement was because of his skilled levels of manipulation. Hopefully, in the near future, each of them will come to terms with what has happened and move on to being survivors of child sexual abuse, laying the lame where it belongs, ensuring that their lives are in fact successful and have not been ruined by this offender.

The next, and perhaps the most difficult task, is to determine how to structure this sentence, taking into account those findings. The easy part is the commencement date. It will commence on 24 July 2014. If each of these individual sentences that I have announced was entirely accumulated on the other, there would be a total period of in excess of 70 years. That, of course, is manifestly and grossly excessive and does not take into account the fact that many of them, as I have already indicated, should be concurrent with others and a group of them will be giving rise to an aggregate sentence. It is a very difficult task to decide, however, how to structure this sentence.
The first step I must undertake is to decide the overall term of imprisonment or total term of imprisonment which is necessary to reflect the total criminality involved in all of this offending. Even this has an added twist because it must also take into account that, at the same time covered by this offending, that this offender has spent 12 months in custody for exactly the same offences committed in exactly the same time period. That is part of the total criminality involved to take into account.
Doing the best I can in this ridiculously complicated sentence, I note the Commonwealth offences 7, 8, 9, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 are 20 charges, all contrary to s 474. The sentences which I have indicated for them would all add up to more than 25 years if fully accumulated but, again, this would be grossly excessive to represent the total criminality involved and particularly as I have already indicated, many of them should be concurrent with each other or perhaps even concurrent with other offences.
I have decided that there can be and should be an aggregate sentence imposed for this group of 20 Commonwealth offences. There was some doubt at earlier times whether or not an aggregate sentence could be imposed for Commonwealth offences, however, I accept from the decision of DPP (Cth) v Beattie [2017] NSWCCA 301 that that is an available option. I have concluded that there should be an aggregate sentence of 5 years. Regrettably, in those circumstances, I am obliged to fix an aggregate non-parole period. I will be setting an aggregate non-parole period of 3 years for each of those offences.
That being the case, there are then three groups of large sentences that being count 3 and the offences that also largely deal with the complainant, W, they being counts 4, 5, and 6 where I have indicated there should be an overall sentence of 15 years with an overall non-parole period of 10 years.
I have stated what I believe to be the appropriate sentences for counts 4, 18 months; 5, two years and 6, six months. For the reasons that I have stated they will be concurrent with the sentence for count 3. In other words then there is one block of time representing counts 3, 4, 5 and 6 of the 15 years with a 10 year non-parole period.
There is then another block of sentences involving the complainant, JW, representing the State offences, counts 10 to 17 inclusive, for which I have indicated there will be an aggregate sentence of 6 years with an aggregate non-parole period of 4 years and there is another block of sentences that comprises the 20 Commonwealth offences for which I have indicated there will be an aggregate sentence of 5 years with an aggregate non-parole period of 3 years.
There is then another group of offences that do not fall within those three groups, namely counts 1 and 2, count 20, count 21, count 24 and count 38. I have already set out the appropriate sentences for each of those and for all of them have indicated that either they form part of the factual matrix for more serious offences or for other reasons ought not give rise to an increase in the penalty. In some mechanical way, I will fix those sentences so that they are concurrent with one or other of the three blocks of sentences.
Those three blocks add up to 26 years’ imprisonment. It seems to me that that is a little too high to reflect the total criminality involved, but I have concluded that total criminality should give rise to an overall sentence of 20 years and there should be a total non-parole period of 15 years.
Whilst there are some special circumstances, they are limited. There is a need for a longer than normal period of supervision and some partial accumulation. Nothing less than a total non-parole period of 15 years would in fact reflect the total criminality involved and 5 years on parole is more than sufficient to deal with the matters that need to be dealt with by way of supervision on his release to parole.
This is the only bit that I have not done yet - what is 20 years from July 2014, that is July 2034, isn’t it - okay. I will attempt to give effect to what I have just indicated as follows:
For counts 7, 8, 9, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 - Commonwealth offences - there will be an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act of 5 years commencing 23/7/2019 with an aggregate non-parole period of three years commencing 24/7/14 expiring 23/7/17.
The indicative sentences are as follows:

count 7 two years;

count 8 18 months;

count 9 18 months;

count 18 two years;

count 19 two years;

count 22 18 months;

count 23 18 months;

count 25 12 months;

count 26 12 months;

count 27 12 months;

count 28 12 months;

count 29 six months;

count 30 six months;

count 31 six months;

count 32 six months;

count 33 six months;

count 34 six months;

count 35 18 months;

count 36 18 months;

count 37 18 months.

I note the offender will not be eligible for release to parole at the expiration of the non‑parole period as it will be part of a longer overall non‑parole period.
For counts 10 to 17 inclusive an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act of 6 years imprisonment commencing 24 July 2016 and expiring 23 July 2022 comprising an overall non‑parole period of 4 years commencing 24 July 2016 expiring 23 July 2020 with parole thereafter of 2 years commencing 24 July 2020 expiring 23 July 2022. I note that he will not be eligible for release to parole because this is part of an overall non‑parole period. I also note that I would have applied a fixed term but that is not available because one of the offences has a standard non‑parole period.
The indicative sentences for each of those are:

count 10 two years;

count 11 four years;

count 12 two years;

count 13 three years with an indicative non‑parole period of 2 years;

count 14 four years;

count 15 four years;

count 16 four years, count 17 four years.

For count 3 there will be an overall sentence of 15 years commencing 24 July 2019 expiring 23 July 2034 comprising a non‑parole of 10 years commencing 24 July 2017 expiring 23 July 2029 with parole thereafter of 5 years commencing 24 July 2029 and expiring 23 July 2034.
For count 1 a sentence of six months commencing 24 July 2014 expiring 23 January 2015.
For count 2 a fixed term of 18 months commencing 24 July 2014 expiring 23 January 2016.
For count 4 a fixed term of 18 months commencing 24 July 2019 expiring 23 January 2021.
For count 5 a fixed terms of two years commencing 24 July 2019 expiring 23 July 2021.
For Count 6 a fixed term of six months commencing 24 July 2019 expiring 23 January 2020.
For count 20 a fixed term of two years commencing 24 July 2014 expiring 23 July 2016.
For count 21 a fixed term of 12 months commencing 24 July 2014 expiring 23 July 2015.
For count 24 a fixed term of 12 months commencing 24 July 2014 expiring 23 July 2015.
For count 38 a fixed term of 12 months commencing 24 July 2014 and expiring 23 July 2015.
I indicate that I have taken into account one offence on Form 1 (1) for count 1, one offence on Form 1 (2) for count 4, three offences on Form 1 (3) for count 10 and five offences on Form 1 (4) for count 1.
Re s 166 certificate related offence contrary to s 17 of the Child Protection (Offenders Registration) Act convicted, no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999.
I believe that that is everything except I am required to issue a warning to the offender pursuant to Crimes (High Risk Offenders) Act 2006. The warning is this, I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act,2006 which applies to serious sex offences including - is it only the 66EA offence it applies to, I imagine it is.

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Amendments

21 February 2019 - Corrected paragraph numbering.

Decision last updated: 21 February 2019

Medium Neutral Citation:	R v Barbros Ocek [2018] NSWDC 349
Hearing dates:	16 April 2018- 17 April 2018
Date of orders:	17 April 2018
Decision date:	17 April 2018
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Overall term of 20 years, overall NPP 15 years Re Counts 7, 8, 9, 18, 19, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 – Aggregate term of 5 years, NPP of 3 years Re Counts 10-17 –Aggregate term of 6 years, NPP of 4 years Re Count 1 – Fixed term 6 months imprisonment Re Count 2 – Fixed term 18 months imprisonment Re Count 3 – Overall term of imprisonment 15 years, NPP of 10 years, parole thereafter of 5 years. Re Count 4 – Fixed term 18 months imprisonment Re Count 5 – Fixed term of 2 years imprisonment Re Count 6 – Fixed term of 6 months imprisonment Re Count 20 – Fixed term of 2 years imprisonment Re Count 21 – Fixed term of 12 months imprisonment Re Count 24 – Fixed term of 13 months imprisonment Re Count 32 – Fixed term of 12 months imprisonment
Catchwords:	CRIMINAL LAW – Committal for Sentence following Pleas of Guilty in Local Court – 25% discount – 38 Commonwealth and State Offences plus 10 Form 1 Offences – NSW OFFENCES – Persistent Child Sexual Abuse involving 32 separate sexual acts with a 14 year old on 7 occasions – Numerous separate charges of child sexual intercourse with other children between 14 and 16 – Meet/Travel to meet child for groomed sexual activity – Produce/disseminate child abuse material – Possess child abuse material multiple images on several devices – Making demand with menaces to obtain indecent images – Procuring child under 14 for production of child abuse material – Possess child abuse material evidence of grooming with alcohol, cannabis and pornography – COMMONWEALTH offences – 20 of using carriage service to procure child for sexual activity or engage child in sexual activity – Use of fake profiles – Significant planning – OFFENDER diagnosed high risk of recidivism – Paedophilia and paraphilia – Prior similar offences – Some offences committed on parole, some committed whilst a registered sex offender – Manipulative and dangerous – Risk to community – Poor prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 (NSW), ss 578A, 91H(2), 98H(2), 66EA(1), 66EB(3), 66EB(2A), 66C(3), 61M(2), 249K(1), 91G(1)(b). Courts (Suppression and Non-Publication) Orders Act, 2010, ss 7, 8(1)(c), 8(1)(d). Child Protection (Offenders Registration) Act 2009, ss 17, 12C. Crimes (Domestic and Personal Violence) Act 2007, ss 13(1). Criminal Code 1995, ss 474. Crimes (Sentencing Procedure) Act 1999, ss 10A, 53A. Crimes (High Risk Offenders) Act 2006.
Cases Cited:	R v Thomson & Houlton(2000) 49 NSWLR 383 Chiro v The Queen [2017] HCA 37 R v Nahlous [2013] NSWCCA 90 R v Fuller [210] NSWCCA 195 DPP (Cth) v Beattie [2017] NSWCCA 301
Category:	Sentence
Parties:	Barbros Ocek The Crown
Representation:	Counsel:F/W Mr V. Pawar Cr: Ms J Smith Solicitors:F/W: Mr Lipert Cr: Ms Tierney
File Number(s):	2014/301260; 2014/218371; 2014/301260
Publication restriction:	NON-PUBLICATION ORDER PREVENTING THE PUBLICATION OF THE IDENTITY OR ANYTHING THAT MIGHT IDENTIFY ANY OF THE NAMED COMPLAINANTS OR VICTIMS PURSUANT TO S 8(1)(d) OF THE COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT