R v Bussey

[2021] NSWDC 832

District Court

New South Wales

Medium Neutral Citation:

R v Bussey [2021] NSWDC 832

Hearing dates:

Monday 29 March 2021

Date of orders:

Monday 29 March 2021

Decision date:

29 March 2021

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

(1) Offender convicted of both offences.

(2) Commonwealth Offence: Sentenced to a term of imprisonment of 18 months.

(3) NSW State Offence: Sentenced to a non-parole period of 3 years and 3 months with parole thereafter of 2 years giving rise to an overall term of imprisonment of 5 years.

(4) Form 1 offence taken into account on the state offence.

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service to transmit child pornography material — Procuring or grooming child for unlawful sexual activity — Two substantive offences — One Form 1 offence — Commonwealth Offence with maximum penalty of 15 years¬ — NSW State offence with maximum penalty of 15 years — Early Plea of guilty — More charges before the District Court than necessary due to EAPG Scheme — Offender was about 57 at time of offending — Offending discovered during covert online police investigation — Police used fictitious identity of a mother and child to engage the offender online — Offender believed mother and child were real people — Offender believed the fictitious child was 8 years old — Offender expressed explicit intentions to engage in sex acts with 8-year-old child — offender travelled to Sydney by train to meet the fictitious woman and child to engage in sexual contact with the child — Offender was in possession of over 4000 child pornography images — Objective seriousness of offending is around middle of the range — Offender has psychiatric issues — Static 99R assessment provides average risk of re-offending — Small criminal record — No history of similar offending — Good prospects of rehabilitation if he accepts counselling and treatment.

Legislation Cited:

Crimes Act 1900 (NSW): ss 66(E)(B)(2), 91(H)(2);

Criminal Code Act 1995 (Cth): s 474.19(1).

Category:

Sentence

Parties:

Regina (The Crown)
Cyril Bussey (The Offender)

Representation:

Counsel:
Mr. B. Queenan (The Crown)
Ms. R. Suters (The Offender)

Solicitors:
Ms. T. Ehsman (The Crown)
Mr. I. Morrison (The Offender)

File Number(s):

2019/00201037

Judgment

1. HER HONOUR: This is the sentence matter of Bussey. The offender is before the Court for sentence for two substantive offences as follows:

   Sequence 3: A charge contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) that between 3 June and 28 June 2019 at Taree he used a carriage service to transmit child pornography material. This Commonwealth offence carries a maximum penalty of 15 years imprisonment.

   Sequence 4: A charge contrary to s 66(E)(B)(2) of the Crimes Act 1900 (NSW) that between 3 June and 28 June 2019 at Taree he intentionally procured a fictitious child, then under the age of 14, namely 8, for unlawful sexual activity. This NSW State offence carries a maximum penalty of 15 years imprisonment with a standard non-parole period of 6 years. I take into account a further offence, namely sequence 2, which is a charge contrary to s 91(H)(2) of the Crimes Act 1900 that on 28 June 2019 at Westmead, New South Wales, he possessed child abuse material. If sentenced separately, this offence would carry a maximum penalty of 10 years imprisonment.
    

The Facts

2. The relevant facts are before the Court by way of agreed facts. I accept that the offender is a 59-year-old man who was 57 or so at the time of the offending. The offending came to light when members of the Child Exploitation Internet Unit were conducting covert online investigations within a social networking website which I am informed was the website known as “Chat IW.” It would appear to be a free online site which allows text and video conversations between users which are promoted as being secure and private. Police used an assumed online identity of a 36-year-old woman who had an 8-year-old daughter and also assumed the identity of that child. For ease of reference during this sentence, I will refer to these assumed online identities as “the woman,” or “mother,” and “the child.” I note that they were in fact assumed identities and not real people.
    

3. On 3 June 2019 via that website, the offender contacted the woman, clearly not knowing she was an assumed identity and initiated conversation with her. He immediately started to have a conversation which introduced the possibility of sexual contact between himself and both the mother and the child. He was informed by her as long ago as 3 June 2019, that the child was 8. There then follows, from paragraphs 4 to 23 of the facts, the details of that online conversation and a further series of conversations on nine additional dates between him and the woman between 3 June and 28 June 2019.
    

4. During one of those online conversations, he also engaged with the assumed child online identity who, I accept, he believed was the 8-year-old daughter of the woman. The content of that particular conversation between him and the child appears at paragraphs 15 and 16 of the agreed facts.
    

5. As is my own practice, and has been for many years, I do not propose to read onto the record the details of those online conversations between the offender and the assumed identities who he believed was the woman and her 8-year-old child. Sentence judgments of this Court are published, and it is proper that this publication should occur. There can be no role for general deterrence as a principle of sentencing if the outcome of serious charges such as these is not known to the general public. However, these sentence judgments should never be the cause of secondary gain for those who would behave in the way that this offender has. Setting out the explicit details of these conversations runs the risk that this Court allows its processes to become the source of secondary gain and I do not propose to allow that to occur in any judgment that I publish.
    

6. I accept that over a period between 3 June and 28 June 2019, from those paragraphs of these agreed facts, that the offender, via these online chats, did the following:
    

1. He encouraged the woman to make her daughter available for sexual contact with him knowing or believing that the child was 8;
    

2. He encouraged the woman to engage her own child in sexual activity with a view to grooming and desensitising her to actual sexual contact with him, including encouraging the woman to buy a vibrator and to show the child how to use it;
    

3. He intended that he would actually visit and carry his expressed plans into effect;
    

4. He had actual online contact with the person who he believed to be the 8-year-old child on 5 June 2019 during which he gave her explicit encouragement and instructions in masturbation. He also told her what he intended to do to her when he visited in person in a way which I accept amounted to an attempt to desensitise and to normalise sexual behaviour both with herself, her mother, and him;
    

5. The sexual activity he was suggesting included various forms of sexual intercourse with the child including the implicit suggestion of penile vaginal intercourse with suggestions to the mother about how to prepare the child to make that more possible and less painful when he visited in person;
    

6. Encouraging the mother to use implements on herself and her daughter to enable the planned sexual activity to occur;
    

7. Recognised that there would be pain experienced by the child, but expressed a view that it would only hurt once, therefore minimising to an extent the impact of his offending;
    

8. On 25 June he informed the mother that he would be travelling down to Sydney by train to meet and, explicitly set out in paragraph 21, what he had planned to occur which included penile vaginal intercourse with the child;
    

9. On 26 June he sent the mother a photo of the train ticket he had bought to travel down and a number of photographs of vibrators stating that they would visit a sex shop when he was there to obtain the vibrator to use on the child;
    

10. That contact between him and the mother occurred on at least ten different days and on some days there would appear to be more than one contact.
     

7. It seems to me that it is unnecessary either for this Court or for that matter, any Court on appeal or otherwise, to set out the facts in any greater detail than that, in circumstances where the material is before the Court by way of agreed facts.
    

8. I accept in terms of assessing the objective criminality that this child was said to be only 8 and the offender was frequently reminded of that. He responded to such reminders on at least one occasion by stating that this was, in his view, “A horny age”. I accept that he did not appear to try to hide his actual identity. He used his own mobile phone and mobile phone number as the device with which he accessed this website and contacted the mother and child. He also apparently used his own identity to buy the train ticket and said that to the mother. That is a relevant consideration in assessing the objective criminality. He would also appear to have accessed the website from a site which was capable of being traced to him.
    

9. I further accept from the agreed facts at about 7.15 in the morning of 28 June 2019 the offender went to an address in Westmead believing that to be where the woman and her daughter lived, planning to spend the weekend with them. He was arrested and placed under arrest by police. He was found to be in possession of the mobile phone he had used to access the website and at least one other item which indicated that he intended to engage in the sexual activity to which he had referred. Also in his possession was a USB portable storage device with cash wrapped around it which was found in the pocket of a spare pair of jeans in his luggage. On that, police located 4,048 images and 354 videos. A number of those fell within the definition of child abuse material including 42 Category 1 images which depict a real prepubescent child, or children, either involved in or witnessing sex acts, or focussing on the anal or genital region of the child. These I accept from the categorisation are images involving real children and are not fantasies, drawings or cartoons. There were also 20 images classified as Category 2 which amounts to another category of illegal child abuse material not otherwise described. These 62 images, as I understand it, form the subject matter of the Form 1 offence which is sequence 2.
    

Objective Criminality

10. Turning then to an assessment of the objective criminality, each of the substantive offences is clearly serious and especially so sequence 4. Sequence 2 itself, the Form 1 offence, is a relatively serious offence and in the circumstances of this case, it seems to me at least arguably, a more serious offence than sequence 3, the first substantive offence for sentence. It is hard to understand how that is to be dealt with as a Form 1 offence and the sequence 3 offence, which is completely subsumed within its own facts in the criminality of sequence 4, is to be dealt with as a substantive offence.
     

11. It is a further example of unnecessary charging and certification of charges coming to this Court from the Local Court under the Early Appropriate Guilty Plea Scheme (“EAGP Scheme”). As I will make clear in due course, it seems to me that the facts relevant for the first substantive offence are almost entirely subsumed within the more serious facts relevant for sequence 4. There is no reason for both of those matters to come to this Court. Sequence 3 could easily have been simply discontinued in the Local Court and it would, with respect, have made much more sense for sequence 2 to be dealt with as a separate substantive offence, given that it is an offence also involving child abuse material involving real children and circumstances separate from the facts for sequences 3 and 4. This Court however has no control over what occurs in the Local Court under the auspices of that scheme. There are however far too many inconsistent charges being certified and sent to this Court, and far too many charges, from time to time. It is unfortunate that this has occurred. The EAGP Scheme was meant to streamline pleas to this Court, encourage pleas of guilty to appropriate charges sooner rather than later and it is the experience of this Court, particularly more recently, that more often than not, what this Court is left with is a much more complicated system of sentencing than ought be necessary.
     

12. In terms of assessing the objective seriousness of sequence 4, it is not relevant in terms of assessing the objective seriousness that the mother and child were in fact assumed identities and not real. The offender himself believed them to be real, as is evidenced by the fact that he travelled down to Sydney to meet them with the expectation, I infer, that he would engage in the very behaviour that he had foreshadowed.
     

13. This offending is disgraceful and disgusting. It could easily have been a real child with whom he was engaging on this website. Clearly only full-time custody will suffice to deal with the objective criminality. His contacts in procuring the child for unlawful sexual activity occurred on more than one occasion over a period of approximately three weeks, with about ten separate contacts between himself and the child’s mother, or the person who he believed to be the child’s mother, and on one occasion even with an identity who he believed to be the child.
     

14. He actually intended to carry out this behaviour. This was not just a fantasy. The child was only 8, at least that is what he believed. The age of the child is a relevant factor in terms of the objective seriousness. The nature of the proposed sexual contact was broad, including various forms of actual sexual intercourse. This offending is perhaps a little below, but approaching, the mid-range in terms of objective seriousness for this offence. The standard non-parole period does not apply strictly, at the very least because this is a plea of guilty, however must be taken into account by the Court as a guideline when approaching the relevant sentence as also must be the maximum penalty of 15 years imposed by the legislature.
     

15. The criminality of the first count it seems to me is slightly less. As I have already said, the facts are almost exactly the same as the relevant facts to establish the criminality for sequence 4. It is possible that there was actually no child pornography transmitted on the first call, but otherwise, it appears to me, that for every other contact, it involved the transmitting of what amounts to child pornography or child abuse material. As I have already said, there is no logical reason why these two offences were certified separately. It follows therefore that whatever the relevant sentences are, they ought to be served concurrently with each other.
     

16. The Form 1 offence needs to be taken into account in a meaningful way and as I have already said, it seems to me to be of itself a relatively serious offence, albeit nowhere near the top of the range for offences capable of being charged under this section. The number of images was relatively small, however some of them at least were of the explicit nature that would increase the criminality. However that is a matter to consider when determining the way in which this Form 1 offence is to be taken into account, that the offender had the USB containing these images in his possession in circumstances where he was about to meet what he assumed to be an 8-year-old child and engage with her in some of the sexual activities which I infer more probably than not were displayed on at least 42 of the images on that USB. That itself is a chilling realisation. It is serious and should be taken into account in a meaningful way. The only meaningful way that that can occur, consistent with the authorities as to Form 1 offences, is to impose a sentence for the substantive matter, sequence 4, that is slightly higher than it might otherwise be.
     

Subjective Case of the Offender

17. I now turn to the subjective case put forward on behalf of the offender. As I have said, he is now 59. He pleaded guilty to these offences at the first available opportunity. For sequence 4, I accept there will be a 25% discount to reflect the utilitarian value as a result of the timing of that plea. I accept, for the Commonwealth offence, sequence 3, that the pleas of guilty indicate both a willingness to assist the interests of justice and a utilitarian value. As to the former, I accept that that is nonetheless in the face of what was a very strong case.
     

18. The offender, I accept, suffers from depression and has done for some time, but there is no evidence that this psychiatric condition played any part in the commission of the offence, except for possibly to the extent that his depression had meant that he spent more and more time alone and thus was more and more likely to be using online chat websites and the like to engage in this behaviour. There is no other connection, however. His moral culpability is not in any real sense reduced by this psychiatric condition and that is not argued on his behalf. The existence of his depression does not in this case operate to make him a less likely vehicle for general deterrence.
     

19. He has had some education. He has supports in the community and has been involved in relationships in the past which have produced five children who as I understand it are now adults and who continue to support him. He suffered an injury in the past which leaves him with pain in his wrist from arthritis, having had orthopaedic surgery on his wrist. In the community he was taking Endone for this condition, but that is not available to him in custody, more probably than not because it is a highly addictive drug which is not made available in custodial settings. He will continue to suffer this ongoing pain in his wrist because he is receiving fairly basis pain relief in prison and that, as I understand it, is not likely to change in the immediate future.
     

20. He apparently had a significant cannabis addiction over the years which, to an extent, has amounted to self-medication to deal with his arthritic pain but there is no suggestion that this played a part in his offending. His prospects of rehabilitation of course would be greatly increased if he is able to overcome that use of cannabis on his eventual release to the community.
     

21. There is a psychological report from Chris North which is useful in terms of understanding his background and also his risks. She administered the Static 99R tests and has assessed him as a Level 3 average risk for re-offending in this way. I accept this assessment which, I note, is an actuarial assessment. The fact that he has no history of similar offending is another matter to take into account. It forms not only part of the actuarial assessment of risk, but the Court must also take it into account as a dynamic factor in terms of assessing the real risk of re-offending.
     

22. The offender has a criminal record, but it is relatively small for a man of nearly 60. In large part the more serious offending was in the Children’s Court for break and enter offences. There are drug possession offences as an adult and his last entry would appear to have been in 2011. As I have said, he has support in the community largely as I understand it, his children, who have kept in touch with him. He has expressed remorse and contrition to Ms North which I accept is genuine. He has expressed a motivation to engage in treatment and therefore, insight that he needs help. He does need assistance in the community including treatment. It is probably the case that he will receive some treatment as a sex offender in custody once he is a sentenced prisoner, but that will need to be continued in the community to ensure that he does not relapse into this sort of behaviour. He will also need psychological counselling to deal with his depression and those other factors that surround him that made him more inclined to be a loner, which almost certainly played some part in his commission of these offences.
     

17. His prospects of rehabilitation it seems to me are relatively good provided he is given and accepts some counselling and other treatment and particularly if he is able to take advantage of some programs that will see him engage more with the community. He will of course on his release from custody be subject to various conditions that will mean he has limited if any access to the sorts of devices on which he committed this offending and he will be monitored. That is amongst the reasons why I accept that his prospects of rehabilitation are relatively good. In particular, the fact that as a 59-year-old he has never been to prison before and has no sexual offences on his record assists me to that assessment.
     

The Sentences

24. For the Commonwealth offence, I have concluded that the starting point is 2 years imprisonment. There is a 6-month discount which I identify as being the appropriate discount, that is 25%, taking into account all factors relevant for pleas of guilty for Commonwealth offences.
     

25. For the State offence, taking into account the Form 1 offence in a meaningful way, I have concluded that the starting point is 7 years imprisonment giving rise to an overall term of 5 years and 3 months. There are special circumstances including that this is his first time in prison, there is a need for a longer than normal period of supervision in the community to deal with depression and counselling to enable proper community involvement, also the fact that he is likely to experience increasing pain levels from his wrist injury because of the lack of access to strong painkillers so that he will experience his period of imprisonment in a slightly more onerous way than might others.
     

26. On that finding of special circumstances I will be imposing a non-parole period of 3 years 3 months and I will order that the Commonwealth offence be served completely concurrently with the State offence for the reasons that I have already stated.
     

27. For those reasons then I make the following formal orders:
     

1. The offender is convicted of both substantive offences.
    

2. For sequence 3: He is sentenced to a term of imprisonment of 18 months commencing 28 June 2019 and expiring 27 December 2020.

   NB: I decline to make a recognisance release order because of the nature of the offending, the fact that it is entirely accumulated with the longer State non-parole period and the fact that it has already expired.
    

3. For sequence 4: He is sentenced to a non-parole period of 3 years and 3 months commencing 28 June 2019 and expiring 27 September 2022, with parole thereafter of 2 years commencing 28 September 2022 and expiring 27 September 2024, giving rise to an overall term of imprisonment of 5 years and 3 months commencing 28 June 2019 and expiring 27 September 2024.
    

4. I have taken into account Form 1 offence, sequence 2, when sentencing for sequence 4.
    

**********

Decision last updated: 18 November 2022