R v BH

[2019] NSWDC 924

District Court

New South Wales

Medium Neutral Citation:

R v BH [2019] NSWDC 924

Decision date:

22 November 2019

Jurisdiction:

Criminal

Before:

Payne DCJ

Decision:

Section 474.19(1)(a)(iv) offence

Sentenced to imprisonment for two years six months. Pursuant to section 20(1)(b) Crimes Act 1914, released forthwith, upon entering into a recognizance, self in the amount of $500, on the following conditions:

1. Attend upon Community Corrections at Grafton on or before Tuesday 26 November 2019 and accept their supervision for a period of two years as directed, including in relation to psychological counselling and treatment and in particular, undertaking the mental health care plan outlined in the reports of Mr Jenkins;

2. To be of good behaviour for a period of five years.

Section 91H(2) offence

Two year community correction order with the following conditions:

1. Must not commit any offence;

2. Must appear before the Court if called upon to do so at any time during the term of the order;

3. 300 hours community service work;

4. Rehabilitation / treatment as directed by Community Corrections;

5. Submit to supervision by a Community Corrections officer.

Catchwords:

SENTENCING – child sex offences – using carriage service to solicit child pornography material – possession of child abuse material

SENTENCING – Commonwealth and State offences

Legislation Cited:

Crimes Act 1900 (NSW), s 91H(2)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code 1995 (Cth), s474.19(1)(a)(iv)

Cases Cited:

R v Borkowski (2009) 195 A Crim R 1

R v Thomson and Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Regina (Crown)
BH (Offender)

Representation:

Counsel:
C Hurley (Crown)
G Kumarasinhe (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Clarence Valley Legal (Offender)

File Number(s):

2016/232027

Judgment

1. In relation to this matter, BH comes before the Court in respect of two offences. The first offence is count 1, s 474.19(1)(a)(iv) Criminal Code 1995 (Cth), using a carriage service to solicit child pornography material, maximum penalty 15 years imprisonment. Count 2, s 91H(2) Crimes Act 1900 (NSW), possession of child abuse material, maximum penalty ten years imprisonment. I convict him of both of these offences.

2. He was committed for trial on 5 September 2017 at Grafton Local Court. The date of the offence was between about 27 October 2015 and 4 November 2015 in relation to the Commonwealth offence and 1 December 2015 in relation to the State offence. His plea of guilty was not at the earliest opportunity. Indeed, the plea of guilty was entered indeed the second time the trial was listed.

3. He had been arrested on 28 July 2016 but the police investigation actually commenced on 1 December 2015. There was a telephone callover after that on 4 October 2017 and then a series of telephone callovers until the matter was listed for trial on 19 November 2018. Then it was finally listed again for trial on 12 August 2019 at which time pleas of guilty were entered. It was then adjourned to this sitting, commencing 4 November 2019, for sentence.

4. At the time of the listing in November 2018, it was adjourned to 19 November 2018 due to outstanding material; 19 November 2018, Grafton District Court, Payne DCJ, parties not ready to enter plea, defence application for adjournment. It was then, on 30 January 2019, listed for trial on 12 August 19.

5. In my view, the utilitarian value of the plea assessed in terms of a percentage is one of 10 percent, consistent with the cases of R v Thomson and Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1.

Factual Circumstances of the Offending

6. The factual circumstances of the offence are found in agreed facts document and are as follows:

Background

On 31 November 2015, Grafton Detectives applied for and were granted Commonwealth Search Warrant 53/2015 by the Grafton Local Court, to search the premises of [address omitted], Woombah, in relation to child pornography offences.

Search Warrant: [address omitted], Woombah, NSW

On 1 December 2015, members of the New South Wales Police Force (NSWPF) attended the address at Woombah, at which time there was no person home. Police obtained information that the offender was at the Maclean Bowling Club with his mother so attended this address, where the offender was subsequently located. The offender was cautioned and informed of the allegation, following which he provided his mobile phone to police. He then accompanied police back to the address at Woombah where the Search Warrant was executed.

A number of devices (computers and mobile phone) were located and seized by police.

Interview

At the completion of the Search Warrant, the offender was questioned in relation to his activity on the internet. He made the following statements and admissions:

He had viewed a website called “Goal Bail” which contained imaged of young females;

He denied downloading child pornography but said that it pops up on some websites;

He was sent some child abuse material but did not request it;

He denied sending any photos to anyone else;

He denied a sexual interest in children.

On 17 June 2017, the offender attended Grafton Police Station where he participated in an electronically recorded hand-held interview. The offender made admissions in relation to the email conversation with another user and to sending a photograph.

Review of Seized Devices

A review of the seized devices indicated relevant material present on the offender’s HTC mobile phone.

In conversation with a user on 27 October 2015 regarding “yng girls nude”, the offender states:

Hi thanks, I have none not sure where to find them only just starting out in this area, sorry wish I could trade with u but have nothing to give back, would u b able to send pictures to me please and tell me where to find other then I might be able to send u some

Present also on this device was a conversation via email (Gmail) between the offender and an Assumed Online Identity (AOI). The following exchanges occurred:

In a discussion regarding girls aged “0-15”, with the email subject line “Re: hot young pussy!”:

(i) On 2 November 2015, in response to a question from the AOI asking “so what got you interested in kids then? did you have an experience with one that gave you a stiffy?”, the offender replied: “Yeah I did my niece did she’s 4” and “I like there bums especially 9 to 15”.

(ii) On 2 November 2015, in response to a question from the AOI asking “Tell me exactly what pics you want, but describe in detail what you fantasise about doing to the young 9, 10, 11 year old sluts”, to which the offender responded “bums and penetration”.

On the following occasions, the offender made the following requests of the AOI:

(i) 2 November 2015: Would be able to send me any pics? Wish I could trade with u

(ii) 2 November 2015: Hey nah I don’t sorry, wish I did but not sure where to find the hc or sc stuff, I’ve only got pics of myself lol, do u have any or would be able to help me and tell where I can find sum stuff, would much appreciate it :)

(iii) 3 November 2015: I will get it to u asap, would I be push it if I ask for one more so I can see it in her pussy

On 3 November 2015, as requested by the AOI, the offender sent a picture of a framed photograph depicting a clothed prepubescent girl known to the offender, with an erect adult penis hanging over the frame with what appeared to be ejaculate on the glass covering the image. Neither ejaculating on the photograph nor the transmission of the picture by the offender is a child pornography offence. It is part of the narrative in the conversation with the AOI. It shows the sexual interest in children by the offender and the reason he was engaging with the AOI to solicit images.

The offender did not receive any images from the AOI.

State Electronic Evidence Branch Review

The NSWPF’s State Electronic Evidence Branch (SEEB) triaged the offender’s HP Pavilion laptop computer. The examination discovered two images of a prepubescent female child, wearing a t-shirt and underwear, lying on the ground posing with her legs spread. These two images have been categorised as CETS 1 images (depictions of children with no sexual activity). The images are at the low end of objective seriousness for the type of offending.

Antecedents

The offender is currently 38 years old, and was aged 34 years old at the time of offending.

7. The Crown accepted, and it must be so, that the more serious offence is the one contrary to the Commonwealth legislation, reflected in the maximum penalty of 15 years imprisonment. In relation to the possession of child abuse material, as is clear from the facts, there were two images of a young girl clothed and they were assessed to be Category 1, as noted in the agreed facts, CETS 1 images (depictions of children with no sexual activity). There was one child, but two images of that child.

8. In relation to the using a carriage service, the Crown noted there was just not the soliciting of the undercover operative but also an earlier request on 27 October 2015, so that cannot be seen in isolation. Also, I remind myself that the sending of a picture of a photograph depicting a clothed prepubescent girl known to the offender and as noted above in the facts was not an offence but relied upon as part of the narrative in the conversation with the Assumed Online Identity and it shows the sexual interest in children by the offender and the reason he was engaging with the Assumed Online Identity to solicit images.

Subjective Features

9. In relation to subjective circumstances, he was 34 at the time of the offending. He is now aged 38. He has no criminal record in New South Wales, only the present matters of course but prior to that nothing and he has a traffic record in Queensland. In relation to that, in my view he is not disentitled to leniency from that record.

10. As I have noted, the investigation began in December 2015 but there was a delay in his arrest. What is of concern to the Court is that he in that whole period of time from October, November 2015 - when he must have known in his own mind that he was offending - until when he saw the psychologist on 28 October 2019, he did not seek any treatment.

11. It was accepted that the only time he went to the psychologist was to get a report for court. Because of the short period of time involved he has not undertaken any treatment but there is a plan. There was very careful cross examination by the Crown in relation to the report. I do have concerns about the validity of the diagnoses but on balance I accept them, on the balance of probabilities. Having said that, I am still of the view that those matters do not significantly reduce the objective seriousness in terms of his moral culpability. There is still a requirement for general deterrence in this case and that must be reflected in the sentence imposed. It is not a case where general deterrence can be completely put to one side. There is also a requirement for specific deterrence.

12. In terms of the objective seriousness, in my view the possession of the child abuse material is at the lower end of the range. In relation to the other offence, it is just below the middle range.

13. He has been working of recent times and he is in a new relationship. The Court had the benefit of a Sentencing Assessment Report. He was not working at the time. He has a close relationship with his parents and gets support from them.

14. The general principles are noted in the Crown's submissions at para 8.

15. I will consider contrition and the plea of guilty which is one of the subparagraphs in s 16A Crimes Act 1914 (Cth), ss16A(2)(f) and (g).

16. Prospects of rehabilitation, s 16A(2)(n) Crimes Act (Cth). In my view, his prospects for rehabilitation are only fair. They must be guarded. It depends significantly on his preparedness to engage in a mental health plan and engage in treatment. In relation to whether he will or will not re-offend, I am neutral in relation to that matter. It is very hard to anticipate whether a person will or will not re-offend and I make no finding one way or the other.

17. In relation to contrition and remorse, this is a feature under s 16A Crimes Act (Cth). It is also a provision within s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). After being encouraged or a word similar to that effect, he did accept responsibility for his offending behaviour and focused on those who are inevitably the victims of this sort of offence rather than himself and his family. On the balance of probabilities, I give him the benefit of relevant contrition and the relevant finding under s 21A.

18. I have addressed prospects of rehabilitation, s 16A(2)(n).

19. Cooperation with law enforcement authorities, s 16A(2)(h) Crimes Act (Cth). There was nothing specifically or even generally put by his barrister.

20. General and specific deterrence must be a significant feature of this sentencing exercise.

21. As the Crown said at para 65, “There is currently no evidence before the Court regarding any substantial changes to the offender's circumstances or attempts to treat the nominated cause of his offending.”

22. His psychologist said his mental condition contributed towards the commission of the offence but as I have said, in my view, even accepting this is so, it does not significantly reduce his moral culpability nor decrease significantly or even other than indeed modestly only the requirement for general deterrence.

23. What is plain is there must be an individual sentence imposed for the State offence and one for the Commonwealth offence because what will become apparent from a difficulty with the recording the Court was faced with the prospect of either waiting to get what I had said transcribed then adding to it or proceeding again. I want to make it clear that the remarks on sentence in this case and the reasons of course in those remarks are the ones that have been given after that matter came to attention. It is most important that justice continue and that there be resolution of cases.

24. I have given careful consideration to the case, bearing in mind that I had overnight to think about it, and I impose the following dispositions.

Sentence

25. You are convicted. The term of imprisonment I would have imposed is one of two years and ten months, reduced by 10 percent is 30.6 months, rounded to two and a half years. That will date from today. In accordance with s 20(1)(b) of the Crimes Act (Cth), you are released forthwith, upon entering into a recognizance, self in the amount of $500 with the following conditions:

(1) That he attend upon Community Corrections before Tuesday of next week and accept their supervision for a period of two years as directed, including in relation to psychological counselling and treatment and in particular, undertaking the mental health care plan outlined in the reports of your psychologist, Mr Jenkins.

(2) To be of good behaviour for a period of five years from today, expiring on 21 November 2024.

26. In relation to the State offence, pursuant to s 8(1) of the Crimes Sentencing Procedure Act, instead of imposing a sentence of imprisonment, you are ordered to comply with a community correction order for a period of two years. The standard conditions of the order apply:

(1) You must not commit any offence;

(2) You must appear before the Court if called upon to do so at any time during the term of the order.

The following additional conditions apply:

(3) There is a community service work condition requiring the performance of community service work for 300 hours;

(4) I also make a rehabilitation and treatment condition requiring you to participate in a rehabilitation program or to receive treatment as directed; and

(5) A supervision condition requiring you to submit to supervision by a Community Corrections officer.

27. I also make the forfeiture order. The Court orders that pursuant to s 23ZD of the Crimes Act (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth:

(1) HP Pavilion Laptop Computer (NSW Police Exhibit Number: X0002768332); and

(2) HTC Mobile Phone (NSW Police Exhibit Number: X0002768331; IMEI: 352228050576629).

28. I direct a copy of the psychological report be sent to Community Corrections.

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Decision last updated: 06 July 2020