R v Cameron Cameron

[2018] NSWDC 389

District Court

New South Wales

Medium Neutral Citation:	R v Cameron Cameron [2018] NSWDC 389
Hearing dates:	11 December 2018
Decision date:	13 December 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [34]
Catchwords:	Attempt act as client with child in prostitution
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Cameron Cameron (Offender)
Representation:	Counsel: C Feiner (Offender)   Solicitors: K Stanley (Crown)
File Number(s):	18/27903
Publication restriction:	Order made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, suppressing disclosure of information tending to reveal the identity of the complainant

REMARKS ON SENTENCE

1. The offender who was born on 15 November 1976 is to be sentenced for an offence of attempt act as client with child in prostitution pursuant to s 91D (1)(b) of the Crimes Act 1900.

2. The maximum penalty for the offence is 10 years imprisonment and there is no Standard Non-Parole Period.

3. The offending occurred between 30 November 2017 and 23 January 2018. The offender was arrested on 26 January 2018. At the time of the offending the offender was subject to two Community Service Orders imposed on 12 July 2017. Those orders were revoked and he was sentenced to serve an aggregate sentence of 15 months from 26 January 2018 until 25 April 2019, with a non-parole period of eight months commencing on 26 January 2018 and terminating on 25 September 2018.

The sentence hearing

4. The sentence hearing occurred on 11 December 2018 at Nowra. The Crown Sentence Summary became Ex A and contained an Agreed Statement of Facts which may be summarised as follows.

5. The victim KJ was born on 27 August 2001 and was aged 16 years at the time of the offending. She was in the care of a government agency, CareSouth, and lived in a group home in the Nowra area. When the victim was 14 or 15 years old, she met the accused who was then aged 39 years. On 25 January 2018 the victim complained to the police and made allegations against the offender. He was arrested on 26 January 2018 and participated in an electronically recorded interview where he admitted a friendship with the victim over the past two and half years. He was aware that the victim was under 18 years of age and he admitted to communicating regularly with her via Facebook Messenger. The accused admitted to having oral sex with the victim in the past couple of months and said that the victim was consenting to the sexual activity. He denied providing her with money or drugs in exchange for the sexual activity.

6. A forensic examination of the offender’s mobile phone extracted messages between the offender and the victim between 20 December 2017 and 26 January 2018. Those messages were reproduced in the Statement of Agreed Facts and I do not intend to repeat them here. It is clear from them that the offender had a sexual attraction towards the victim and was on numerous occasions attempting to engage the victim in sexual services in exchange for drugs and/or cash. The messages comprised some 22 messages sent by the offender to the victim, to which she replied on 10 occasions. Those messages were all of a sexual nature and many contained offers by the offender to provide the victim with money and/or drugs for sexual favours.

7. Exhibit A also contained the offender’s criminal antecedents. They included offences for which he had been sentenced since 1999 of resist officer in execution of duty, behave in offensive manner, drive with high range PCA, assault occasioning actual bodily harm, a number of common assault offences, destroy or damage property, drive with mid-range PCA, contravene AVO, numerous dishonestly obtain financial advantage by deception, and drive vehicle with illicit drugs present in his blood (several offences).

8. Exhibit B was a Sentencing Assessment Report under the hand of Ms C McMillen dated 19 November 2018. The author noted that the offender was educated to year 11 and had been in receipt of a Disability Support Pension for six years, having been previously diagnosed with Attention Deficit Disorder and Borderline Personality Disorder. Under the heading of “Attitudes”, the offender confirmed his involvement in the offence, however, denied it was his intent to instigate prostitution. He reported feeling bad about his offending behaviour. At the time of the offending he was using ice on a weekly basis for a period of two years prior to his arrest. He had a history of residential rehabilitation treatment and was currently completing the RUSH program in custody. He was assessed as being an average risk of sexual recidivism but demonstrated insight into how his offending had impacted on the victim, recognising that the victim was vulnerable and may have ongoing trust issues.

9. The offender was assessed as a medium risk of re-offending and the author recommended the following supervision plan:

• “Referral to CSNSW senior psychologist for Sex Offender Suitability Assessment.

• Referral for the EQUIPS Foundation and Addictions Programs.

• Referral for a drug related assessment and then counselling/treatment as required.

• Monitoring of compliance with Child Protection Register.

• Monitoring of Mr Cameron’s compliance with prescribed medication.

• Regular and random drug testing.

• Third party enquiries will be conducted to verify the offender’s circumstances and adherence to interventions identified in his case plan.

• Practise guide intervention exercises related to dealing with stress and anger, managing environment, managing cravings, interpersonal relationships, communication and self-awareness.”

10. Finally, the offender was assessed as unsuitable to undertake Community Service work because of his history of drug dependency.

The offender’s evidence

11. The offender tendered a report of Dr E Collins, clinical and forensic psychologist, dated 12 November 2018. The report set out the offender’s background history and his difficulties with schooling, which gave rise to a diagnosis of Attention Deficit Disorder, which was treated with dexamphetamine. It also set out his history of employment, however, he had received a Disability Support Pension for the last six years due to a diagnosis of Borderline Personality Disorder.

12. The author noted that the offender denied a sexual interest in children. He reported an onset of substance abuse, including drugs and alcohol, from the age of 17 years. He developed an addiction to crystal methamphetamine in 2015, but had been abstinent since his time in custody and expressed a belief that he would not return to drug use upon his release. He had completed the William Booth Residential program on two occasions. The author opined that the offender needed a broader intervention to help manage the general triggers for his use of prohibited drugs. Whilst in custody he had completed a Remand Addiction course and was currently participating in the EQUIPS program. He was being treated with Seroquel for major depression and Bipolar Disorder.

13. In respect of the current offence, the offender described maintaining a friendship with the victim over a couple of years. He described embarrassment as a result of the offences, stating that the conduct was out of character for him. He expressed a concern regarding the likely impact of his behaviour upon the victim. Upon dynamic risk assessment, the offender’s risk of sexual recidivism was assessed for within the moderate range, mostly by virtue of general offending risk factors.

14. The author opined that monitoring the offender’s adjustment back into the community would be most important in terms of intervention in respect of his mental health and substance abuse.

15. The offender also tendered a document entitled “Application for revocation of Community Service Order”, which set out the history of the sentence on 12 July 2017, by which the offender was sentenced to a 300 hour Community Service Order at Port Kembla Local Court. The report set out numerous breaches of the offender failing to attend, however, on almost every occasion, a medical certificate was provided for his absence. He had completed 81.05 hours of the 300 Community Service hours ordered, and his completion of the order had been hindered by his ongoing medical issues.

The offender’s submissions

16. Counsel for the offender provided a thorough outline of written submissions on sentence. It noted that his plea of guilty was entered at the earliest opportunity and he was entitled to a discount of 25% for the plea.

17. The offender submitted that the offending fell at the lower end of the scale of objective seriousness, as it involved an attempt only, there was no physical contact between the victim and the offender, and the victim was aged 16 years during the relevant timeframe.

18. The following were submitted to be mitigating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

1. The injury, emotional harm, loss or damage caused by the offence was not substantial – (3)(a);

2. The plea of guilty by the offender – (3)(k);

3. The remorse shown by the offender – (3)(i).

19. The offender also relied on the following subjective factors outlined in the report of Dr Collins (Ex 1):

1. The offender’s learning difficulties and diagnosis of Attention Deficit Disorder.

2. The offender’s work history and receipt of a Disability Support Pension over the last six years, due to a diagnosis of Borderline Personality Disorder.

3. The offender’s history of substance abuse since age of 17, leading to weekly use of ice for two years prior to his arrest.

4. The offender’s mental health issues, including his diagnosis of Borderline Personality Disorder. He had also reported a history of depression and self-harm and suicidal ideation. He was currently prescribed 100mg of Seroquel, which was typically used to treat major depression and Bipolar Disorder.

5. The offender’s prospects of rehabilitation. The offender was participating in the EQUIPS program and had expressed remorse for his conduct and concern regarding the likely impact of his behaviour upon the victim as recorded by the psychologist. It was submitted that the offender had good prospects of rehabilitation if he was given an appropriate level of support in the community.

6. The offender submitted that a finding of special circumstances should be made pursuant to s 44 of the CSPA, given his need for an extended period of supervision and assistance in relation to substance abuse and mental health issues, and having regard to the time spent in custody since his arrest, it being his first time in custody.

20. Counsel for the offender submitted that any sentence of imprisonment should be backdated to take into account his pre-sentence custody. It was submitted that the principle of totality was a relevant consideration in relation to the start date of the sentence.

21. In her oral submissions, Counsel for the offender advocated the imposition of a Community Corrections Order, given the low level of objective seriousness of the offending here. It was submitted that the offender’s criminal history was not serious, however, it was conceded that it would not entitle him to any leniency. It was noted that he had no prior sexual offences on his record.

22. Finally, it was submitted that any sentence should be backdated prior to 25 September 2018 to allow a level of concurrency between the sentences.

The Crown submissions

23. The Crown submitted that a full time custodial sentence was warranted here. It was noted that the victim was vulnerable, she being 14 or 15 years of age when she first met the offender, and was living in a group house under the aegis of a government agency. There was a 25 year age gap between her and the offender and the text messages referred to the offender providing her with money and drugs for sexual favours.

24. The Crown submitted that general deterrence was important in the sentencing process, however, it was conceded that the offender had mental health issues.

25. In respect of the date for the commencement of any sentence, it was conceded by the Crown that, given the significant sentence imposed following revocation of the Community Service Order, there should be some concurrency in the sentences.

26. Further, the Crown conceded that a finding of special circumstances was warranted, given the offender’s drug and mental health issues.

Determination

27. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

28. The objective seriousness of the offending here involves an assessment of the conduct of the offender, which may be characterised as an attempt to offend pursuant to s 91D(1)(b). None of the activity actually took place, but as s 91D(1)(b) covers a wide range of criminal activity concerning participation as a client with a child in an act of child prostitution, given there was no physical contact involved and the victim was aged 16 years at the relevant time, I find that the objective seriousness of the conduct fell towards the lower end of the range for an offence pursuant to s 91D(1)(b). It still constituted serious offending.

29. I accept the submission made on behalf of the offender that he is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty. I do not accept that it is a mitigating factor that the injury, emotional harm, loss or damage caused by the offence was not substantial, pursuant to s 21A(3)(a). The courts have long recognised the long-term emotional harm caused to children from sexual offences perpetrated on them by adults. In this case, the age difference between the victim and the offender was some 25 years. Notwithstanding the absence of a Victim Impact Statement, pursuant to s 29 of the CSPA, the absence of such a statement does not give rise to an inference that an offence had little or no impact on the victim (see s 29(3)). Further, whilst the offender’s plea of guilty demonstrates some remorse, expressions of remorse expressed to a clinical psychologist, unsupported by sworn evidence from the offender, must be approached with some caution by the court.

30. I accept that there are subjective factors to be taken into account here. The offender had been diagnosed as a child with Attention Deficit Disorder and as an adult with a Borderline Personality Disorder. He is therefore an inappropriate vehicle for general deterrence, given his mental health issues – see DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1.

31. The maximum penalty of 10 years proscribed for the offence pursuant to s 91D(1)(b) of the Crimes Act 1900 is a guidepost to be taken into account in the sentencing process. I have also had regard to the Judicial Commission statistics provided for sentencing for offences piursuant to s 91D(1) as a guide.

32. The criminal antecedents of this offender disentitle him to any leniency in the sentencing process. At the time of the offending, he was on conditional liberty in respect of two Community Service Orders imposed on 12 July 2017. I note, however, that upon revocation of those orders, he was sentenced to an aggregate sentence of 15 months imprisonment, with a non-parole period of 8 months to commence on 26 January 2018 and to terminate on 25 September 2018. I note that he had completed 81 hours of the 300 hours involved in the CSO, and that his various breaches had been due to medical reasons, for which certificates had been supplied. The principles of totality mean that this sentence must be taken into account in imposing an appropriate sentence here.

33. I am satisfied that the s 5 threshold has been crossed, and that there is no other alternative to a full time custodial sentence being imposed here. However, I find pursuant to s 44(2) of the CSPA that there are special circumstances based on the offender’s mental health and drug and alcohol issues, and I therefore intend to vary the ratio between head sentence and the non-parole period. Applying principles of totality and proportionality in accordance with the principle in Pearce v R [1998] HCA 57; (1998) 194 CLR 610, I intend to backdate the sentence to be imposed by a period of 2 months. I intend to sentence the offender to a period of imprisonment of 18 months, with a non‑parole period of 9 months to commence on 25 July 2018.

Orders

34. I therefore make the following orders:

1. You are convicted of the offence of attempt act as client with child in prostitution pursuant to s 91D(1)(b) of the Crimes Act 1900.

2. I sentence you to a non-parole period of 9 months to commence on 25 July 2018 and to expire on 24 April 2019.

3. The balance of term of 9 months will commence on 25 April 2019 and expire on 24 January 2020.

4. Your parole eligibility date will be 24 April 2019.

5. I further recommend that upon release to parole, Community Corrections implement the supervision plan recommended in the Sentencing Assessment Report (referred to in [9] above), and a copy of that report be forwarded to the Department of Corrective Services.

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Decision last updated: 13 December 2018