R v Cowley
[2017] ACTSC 213
•26 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cowley |
Citation: | [2017] ACTSC 213 |
Hearing Date: | 25 July 2017 |
DecisionDate: | 26 July 2017 |
Before: | Mossop J |
Decision: | The offender is convicted. The offender is required to enter into an undertaking to be of good behaviour for a period of 2 years with a Community Service condition requiring a period of Community Service work of 75 hours within 12 months. See [53]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – using a carriage service to transmit indecent communications to a person under the age of 16 years – Facebook messages – offender 35 years old at time of offending – 12 year old victim – offender related to victim – victim a real person under the age of 16 – offending not highest level of indecency – offending took place over a limited number of days – no admissions to police – early plea of guilty – delay in prosecution – offender otherwise of good character – offender diagnosed with adjustment disorder and depressed mood, suffering from depression, anxiety and issues with self-esteem during the period leading up to the offending conduct – good rehabilitation prospects – offender sought psychological help on own initiative and implemented measures to reduce the risk of a further depressive episode – general deterrence – Good Behaviour Order with a Community Service work condition |
Legislation Cited: | Crimes Act 1914 (Cth), ss 16A(2), 17A(1), 20AB Crimes (Child Sex Offenders) Act 2005 (ACT), ss 9(1)(b), 10 and sch 2 pt 2.2 item 33 Criminal Code Act 1995 (Cth), ss, 474.27, 474.27A |
Cases Cited: | R v Aniezue [2015] ACTSC 82 R v Harris (Unreported, District Court of Queensland, Farr DCJ, 20 August 2014) R v Linardon [2014] NSWCCA 247 |
Parties: | The Queen (Crown) Alexander Luis Cowley (Offender) |
Representation: | Counsel T Ellison (Crown) A Fraser (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Numbers: | SCC 85 of 2017 SCC 86 of 2017 |
MOSSOP J:
Charge
The offender is charged with using a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old. The offence is alleged to have occurred between 15 December 2013 and 6 January 2014. The conduct is alleged to be a breach of s 474.27A of the Criminal Code Act 1995 (Cth).
Maximum penalty
The maximum penalty for a contravention of s 474.27A is a period of imprisonment for seven years.
Facts
Statement of facts
The victim is the daughter of a relative of the offender. At the time of the offences she was 12 years old and lived in the United Kingdom with her family.
At the time of the offending conduct the offender was 35 years old.
The offender had never met the victim. Prior to the offending conduct he had not had contact with her.
A Facebook conversation commenced on 15 December 2013. In that conversation the offender commented on a photo that she had posted, complemented her on her looks and asked her to send him a picture of “all of you”.
The conversation continued on 26 December 2013. The victim disclosed what she had received for Christmas and the offender asked her to send her pictures of her parading in a fashion show. He then asked her to “entertain me”. He subsequently said “wish we lived closer” “we’d get up to some ‘fun’ together if we were” “Hehe xoxo naughty fun”.
On 28 December 2013 he said: “soaking up some sun gorgeous.. bit burnt.. can u rub cream all over me [:-)] xx”
On 30 December 2013 there was a conversation in which the offender suggested that she stay on Facebook and chat with him in her room and that she should lock herself in. She said she did not want to, he said “[c]hat to me? Tell me something that you wouldn’t tell anyone else ”.
The most significant conversation occurred on 4 January 2014. The offender complimented her before asking “[w]ant me to play with you?” He asked how excited she wants to be and what she likes to do with herself. He asked her to send him pictures of herself again. When she was unable to he gave her his email address and asked her to email him pictures. She described what she was wearing and he said “you have me excited”. After some further conversation he said he was “thinking of you in your pj’s laying in bed smiling”, “[w]ant to be excited”, “God I wish I cud c u right now” “U can always talk to me”, “[a]nd send pics too”. When she told him that she would send a picture he said “Yaaay xxx sexy one I hope xxx” and “[o]ne of u slipping out of ur pjs? Hehe” he continued with similar comments asking her to send him the picture “so I can get to c that sexy pic of u”. He said “Im delirious and horny…so horny…lol I should be im bed but haven’t made it that far yet”, “[w]anted…needed…u…hehe”. They then exchanged Snapchat usernames. In response to a picture sent on Snapchat the offender asked the victim to send another one a “sexy one of u” and that he wanted “to see more of u”.
A further conversation took place on 6 January 2014. The offender sent the victim two photographs of himself with no shirt on, taken in front of a mirror. This was observed by the victim’s sister who showed her mother who then communicated with the offender on Facebook, captured screenshots of the Facebook messages and reported the matter to UK police.
On 8 January 2014 the offender contacted the victim’s grandmother and pleaded his innocence to her.
On 7 November 2014 police executed a search warrant at the offender’s house. During the course of the execution of that search warrant the offender made no significant admissions in relation to the Facebook chat log that had been captured by the victim’s mother.
On 8 August 2016 police were advised that the Attorney-General’s Department had received an evidence-in-chief interview from the victim and statements from her family.
Police subsequently contacted the offender and gave him the opportunity to participate in an interview. He did not participate in an interview. The information was sworn on 25 January 2017.
The offender was first before the Court on 15 March 2017. A plea of guilty was entered on the second occasion the matter was before the Court, namely 5 April 2017.
Assessment of objective seriousness
A feature of the section is that it covers a relatively narrow range of conduct. Therefore the circumstances in which the maximum penalty may be applicable are less different from the least serious examples of a contravention of the section than is the case in relation to many other statutory provisions.
I assess the present circumstances as being in the mid range of objective seriousness for this offence. Some of the factors relevant to assessing the seriousness of the offence are set out in R v Aniezue [2015] ACTSC 82 at [33]. The aggravating features are the very significant age difference and hence power imbalance between sender and recipient, the fact that there was to a degree an exploitation of a family relationship in maintaining the contact and that the communications were with a person actually under the age of 16 as opposed to being with a police officer or other person who the offender believed was under the age of 16. However the material was not at the very highest level of indecency and took place on a limited number of days over as far as the facts disclose, a limited time.
Subjective circumstances
Criminal history
As an adult the offender has had two convictions for drink-driving. The offences occurred in 1997 and 2000 respectively.
Pre-Sentence Report
The Pre-Sentence Report discloses that the offender had a stable and supportive childhood and maintains ongoing contact with his parents and his sister. He has been in a relationship with his wife for 16 years. He and his wife have three children aged 11, nine and six years old. He is involved in a variety of social and sporting activities with his children. He has “pro social” friends and performs in a band.
He has maintained consistent employment since leaving school at the age of 15. He has been employed in communication and graphic design positions in the public service since 2010. He has had past problems with alcohol consumption specifically at the time the offence occurred. His alcohol consumption has increased during periods where his mental health has deteriorated. At times when he consumes alcohol his wife reported that he became disconnected and disengaged from his family. He has reduced his alcohol consumption and it is no longer problematic. He does not use any illicit substances.
In 2012 he was prescribed medication for his mental health, the details of which are not disclosed in the evidence, but which he ceased after about six months.
The offender said that he did not remember committing the offences but he accepted that they occurred. A preliminary risk assessment (the Static 99 assessment) indicated that he was a low risk of further sexual offending.
He was assessed as being suitable for a Community Service work condition upon a Good Behaviour Order.
Psychological report
The offender tendered a psychological report of Dr Jeffrey Ward. He obtained psychological treatment at his own initiative very shortly after the offending conduct. On 9 January 2014 the offender saw his general practitioner and obtained a referral to a psychologist under a mental health plan. That plan recorded the diagnosis as being “[d]epression and anxiety”. The plan records “[y]oung man with no previous history of depression has over several months become depressed and now affect is blunted towards all relationships [sic]. Supportive partner and friends.” The offender had one session with a psychologist before being referred to Dr Geoffrey Ward, a clinical psychologist, who prepared a report which was tendered by the offender. Dr Ward saw the offender for seven sessions of psychological therapy commencing on 17 January 2014 with the last session of occurring on 28 February 2014. The report is useful in that it discloses what was disclosed to the psychologist during that post‑incident treatment. The offender made disclosures to the psychologist about the conduct that he had engaged in as it had been reported to him. He said that he could not remember doing what he was told he had done. Dr Ward’s report discloses that the offender had separated from his wife for a period of six months during 2012. The offender was aware that his cousin had reported the matter to police but that the outcome at that stage was uncertain. The offender reported that he had been staying out late, had been drinking more and had often chatted online. He was at that point distressed by the fact that the incident conflicted with his values saying to Dr Ward “she is just a baby”. The report discloses the various matters which were discussed with the psychologist, none of which clearly explains the conduct in question although the psychologist expressed the view that personal insecurity and hence a desire for what is referred to in the report as “positive mirroring” may have played a role in his tendency to flirt with women.
References
Three references were tendered by the offender, references from:
(a)the offender’s wife;
(b)the offender’s sister; and
(c)the offender’s father-in-law.
Each of these was written with knowledge of the offending conduct.
The reference from his sister records his strong work ethic, strong commitment to family and family activities. It records that he has a large extended family in which he is a respected member. It records that he has a history of suffering from depression and anxiety and that he suffered from a break down prior to the offending conduct where his physical and mental state changed dramatically and he moved in with his sister. Her letter describes that he was unable to cope with everyday requirements for taking care of his children, cooking and cleaning or going to work or even exercising. She describes him as becoming distant, crying a lot, not eating and having no energy. This period of residence with his sister appears to have come to an end prior to the offending conduct.
The letter records that he has identified strategies to help to maintain his mental health including exercise, rest and mindfulness.
The letter from his wife indicates that during the period of their marriage he has suffered from severe cases of depression, anxiety and has had self-esteem issues. She records this being worse during 2013, close to but not necessarily overlapping with the period of the offences that period he was acting out of character, he did not want to do things with this family, he was constantly worried about how he looked and appeared to others, he would stay up very late watching TV or using his phone and would get up early. She described him as being “in a very dark place”. She explains that he is no longer in that “dark place” and has put in place measures to maintain his mental health. She records that she understands the seriousness of the case but “would not support my husband during this time if I did not believe that he acted in a way that was not him and he was not himself and was unwell during this time”.
The reference from his father-in-law records the offender’s level of dedication to his family and in particular to supporting the activities of his children. It records that he went through a period of financial stress as a result of debt owing on his house including being required to work two jobs. He records conduct, which I take to be at around the time of the offending conduct, which was consistent with mental health difficulties requiring expert assistance.
The offender also tendered a letter of apology which he has recently written to the family of the victim.
Delay in prosecution
The offender was aware that his conduct had been referred to police shortly after it occurred. His house was searched 11 months after the offences occurred. The information was sworn three years after the offence. During the whole of this period the offender would have been well aware of the prospect that he may be charged as a result of his conduct. While at least a significant portion of that delay is explicable by the fact that the police were required to gather evidence from United Kingdom in order to support a charge, I nevertheless take into account the delay and the knowledge of the offender of the potential for a charge hanging over him as a factor relevant to the sentence that should be imposed.
Consideration
In order to impose a sentence that is of the severity which is appropriate in all circumstances of the offence it is necessary to have regard to the various matters set out in s 16A(2) of the Crimes Act 1914 (Cth).
The nature and circumstances of the offence are outlined above. There is little information about the personal circumstances of the victim or any injury to her resulting from the offence: sub-ss (d)-(e). However the nature of the conduct engaged in by the offender is conduct which may have long-term effects upon a child and that is one of the reasons why the legislature takes conduct of this nature so seriously.
The offender has shown contrition for the offence: sub-s (f). That contrition is evidenced by the steps which he immediately took of his own initiative to address his offending conduct. It is also demonstrated by the letter of apology which he wrote, albeit recently, to the family of the victim.
I take into account the early plea of guilty to the charge: sub-s (g). However admissions to police were not made at the earliest possible stage: sub-s (h). As a consequence it was necessary for the UK police to go through the evidence-gathering process and conduct an evidence-in-chief interview with the victim. That process itself may have had the effect of increasing or prolonging the effect of the original incident.
Clearly it is necessary to have regard to the deterrent effect of any sentence or order under consideration. In the present case, in the light of the evidence and the particular circumstances surrounding the offending conduct, I consider that the requirement for specific deterrence is low.
There is clearly a need to ensure that the offender is adequately punished for the offence: sub-s (k). Related to the need for adequate punishment is the need to impose a punishment which has a significant general deterrent effect. Because of the nature of the offending conduct, the ubiquity of the internet and social media and the difficulty of detecting offences of this nature, general deterrence must be a very significant issue: see R v Linardon [2014] NSWCCA 247 at [100].
The character, antecedents, age, means and physical and mental condition of the offender are all matters which favour leniency in the present case. The offender has a very minor criminal history. The only relevance of the criminal history is that it is consistent with the abuse of alcohol at times of the offender’s life. He is otherwise a person of good character who is clearly very devoted to and plays a significant role in his family. It is those circumstances which make his offending conduct difficult to understand. The material before the Court does not provide a completely clear picture of his mental state at the time of the offences. However the report of Dr Ward indicates a diagnosis of adjustment disorder with depressed mood. The letter from his wife is consistent with him suffering the worst case of depression, anxiety and issues with self‑esteem during the period leading up to the offending conduct.
The prospects of rehabilitation of the offender (sub-s (n)) are good. He has had the benefit of psychological counselling, obtained at his own initiative, and gave evidence that he has put in place measures within his life to reduce the risk of a further depressive episode involving alcohol.
It is necessary to take into account the probable effect that any sentence or order under consideration would have on the person’s family or dependents. In relation to this issue the only significant matter of to be taken into account is whether or not the offender becomes registered under the Crimes (Child Sex Offenders) Act 2005 (ACT). That would follow from the imposition of a sentence of imprisonment: see ss 9(1)(b) and 10 and sch 2 pt 2.2 item 33. Although there was no evidence about this there is at least a real prospect that inclusion on the register would affect the offender’s capacity to fully participate in the extracurricular activities of his children to the extent that he does at present.
It is also relevant to take into account the delay in bringing the proceedings. While that was contributed to by the failure of the offender to make full admissions at the point of first contact with the police, it is relevant that he has had the potential of these proceedings hanging over him for three years and that he has been of good behaviour during that period. The likelihood of proceedings would have been apparent from no later than November 2014 and that this would have been a greater burden for the offender than had he not been a person who had a predisposition to suffer from anxiety and depression.
Counsel for the Commonwealth Director of Public Prosecutions (‘CDPP’) helpfully provided a number of single judge decisions relating to s 474.27A. In each case a sentence of imprisonment was imposed but was suspended pursuant to a recognizance release order. The range of sentences was from nine months through to 15 months. R v Aniezue, a decision of this court, involved a communication that was between a 22-year-old and a 12-year-old. The conversation involved overt and explicit sexual conversation. The conversation was taken over by a police officer and ultimately lead to the offender attending what he thought was going to be a meeting with the child. The offender had had his student visa cancelled and had been taken into immigration detention. He was to be deported. The other case in which circumstances are comparable to this case is R v Harris (Unreported, District Court of Queensland, Farr DCJ, 20 August 2014). That involved a 20-year old sending a photo of his erect penis to a 15-year-old girl he had met online. The offender made full admissions. A sentence of imprisonment of nine months and was fully suspended under a recognizance release order to be of good behaviour and accept supervision for 18 months.
R v Hutton (Unreported, Supreme Court of the Northern Territory, Barr J, 19 June 2014) involved a 29-year-old offender engaging in a sexual discussion and sending a photo of his erect penis to a 12-year-old girl. He was given a suspended sentence of 12 months imprisonment under a recognizance release order to be of good behaviour and accept supervision for two years.
Counsel for the offender pointed to the statistics available on the ACT sentencing database. He emphasised the fact that those statistics indicated that 15 percent of cases involved the imposition of a Good Behaviour Order. Counsel for the CDPP drew attention to the ambiguity in the statistics because they referred to s 474.27 rather than s 474.27A. Having looked at the entry on the database it appears that both the grooming offence under s 474.27 and the indecent communication offence under s 474.27A are both dealt with under the section heading for s 474.27. However the subheadings make it clear that the indecent communication offence is dealt with separately and as a consequence I am satisfied that the information provided relates to the relevant offence. I note however, that in common with many other entries in the database the sample size is relatively small.
Section 17A(1) of Crimes Act preclude the court imposing a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. I accept that generally speaking, because of the narrowness of the range of circumstances covered by the offence and the legislative specification of a maximum penalty of seven years and the very strong need for general deterrence of this type of conduct, it will usually be the case that no other sentence apart from imprisonment will be appropriate. That will be particularly so where there is an aggravating feature such as a substantial age difference between the offender and victim or other power imbalance. If leniency is to be accorded that may be done by the suspension of the period of imprisonment under a recognizance release order.
However in the present case I am not satisfied that no other sentence apart from one of imprisonment is appropriate. In the light of the evidence I consider that the need for specific deterrence is minimal. The circumstances in which the offending conduct took place were out of the ordinary for the the offender associated with a decline in his mental health and an increase in his alcohol consumption. Apart from that aberrant period and notwithstanding that the offender has a predisposition to some fragility of his mental health he is otherwise a fully functioning member of the community and fully functioning within his family. The social connections that exist very significantly reduce the prospect of further offending of this nature.
It is open to the Court to impose a Good Behaviour Order including a community service work condition: see Crimes Act s 20AB; Crimes Regulations 1990 (Cth) s 6 item 7. Where that occurs breaches of the requirements of a Good Behaviour Order may result in resentencing of the offender in a similar manner to that which would occur if the sentence was one imposed directly under territory law: see s 20AB(3). The Pre‑Sentence Report has assessed the offender as being suitable for Community Service work.
In a case such as the present the burden of a Good Behaviour Order with a community service work requirement is likely to be greater than the burden of a suspended sentence of imprisonment even if the headline sentence appears more lenient. That is because the offender is required to carry out the community service work and remains exposed to the prospect of resentencing, including to a sentence of imprisonment, if there is a breach of the Good Behaviour Order, see the provisions of ss 109 and 110 of the Crimes (Sentence Administration) Act 2005 (ACT).
In the circumstances of this case I consider it appropriate to convict the offender and require him to enter into a Good Behaviour Order for a period of two years with a community service work condition requiring him to perform 75 hours of community service work within a period of 12 months.
Sentence
The sentence imposed is as follows:
1. The offender is convicted.
2. He is required to enter into an undertaking to be of good behaviour for a period of two years with a community service condition requiring a period of community service work of 75 hours within 12 months.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 14 August 2017 |
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