R v Craig Andrew Woodley
[2013] NSWDC 14
•26 February 2013
District Court
New South Wales
Medium Neutral Citation: R v Craig Andrew Woodley [2013] NSWDC 14 Hearing dates: 16-26 October 2012 Decision date: 26 February 2013 Before: Mahony SC DCJ Decision: See Orders at paragraph 86
Catchwords: Criminal Law. Act of Indecency; grooming a child under 16 years of age by exposing to indecent material and by providing an intoxicating substance. Legislation Cited: Crimes Act 1900
Criminal Code 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999Cases Cited: R v Asplund [2010] NSWCCA 316
R (Cth) v Poynder [2007] NSWCCA 157
Pearce v The Queen (1998) 194 CLR 610
Muldrock v The Queen (2011) 244 CLR 120Category: Sentence Parties: The Crown
Craig Andrew Woodley - OffenderRepresentation: Director of Public Prosecutions -
Mr R Cooley
A Williams - The Offender
File Number(s): 10/72635 Publication restriction: Complainant's Name Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute.
Judgment
On 26 October 2012 the jury delivered verdicts of guilty on the three counts with which the offender was charged, namely,
Count 1 - On 29 October 2009 at Claremont Meadows in the State of New South Wales committed an act of indecency towards EN, a person under the age of 16 years, namely 15 years, in circumstances of aggravation, namely that EN was at the time under the authority of Craig Andrew Woodley. - S 610(1) of the Crimes Act 1900
Count 2 - Between 27 October 2009 and 2 November 2009 at Claremont Meadows in the State of New South Wales did expose EN, a child then under the age of 16 years, to indecent material with the intention of making it easier to procure the child for unlawful sexual activity with himself - S 66EB(3) Crimes Act 1900
Count 3 - On or about 31 October 2009 at Claremont Meadows in the State of New South Wales did provide EN, a child then under the age of 16 years with an intoxicating substance, namely amphetamines, with the intention of making it easier to procure the child for unlawful sexual activity with himself - S 66EB(3) Crimes Act 1900
In respect of Count 1 the maximum penalty prescribed by s 610 (1) of the Crimes Act is five years. In respect of Counts 2 & 3 the maximum penalty prescribed by s 66 EB (3) of the Crimes Act is ten years in relation to each offence.
At the commencement of the trial I made an order pursuant to s 578A of the Crimes Act 1900 prohibiting the identification of EN ("the victim").
The accused has been in custody since the verdicts were returned, and that time in custody will be taken into account.
Circumstances of the Offending
Based on the evidence at trial, I make the following findings of fact. The evidence comprised the Crown case against the offender, who did not give evidence.
The offender first met the victim at a restaurant in Chinatown in July 2009. She was there with her mother and two friends of her mother, John Bennati and Rebecca Garbut. The offender was a cousin of Rebecca Garbut.
On meeting the victim who was at the time 15 years of age, the offender commented on his belief that her eyes were dilated and her lips had changed colour, thereby indicating that upon their meeting there was formed between them a "special connection". At the time the offender was 40 years of age. The offender said this in a way in which it was heard by all of those present at the table, including the victim's mother. He also presented the victim with an envelope which contained a card and notes. It became Exhibit A at the trial and comprised messages from a young woman purporting to be named "Samantha". The evidence in the trial established that "Samantha" was fictitious, a figment of the offender's imagination. The messages from "Samantha" included one message that referred in terms to "Sir", referring to the offender.
One of the matters discussed over dinner was that the victim had been to a singing audition that day, as part of a Government sponsored talented persons development program. She felt the audition did not go well as one of the women conducting the audition had not been supportive towards her. In response to being told this, the offender asked the victim whether she was having her period, and told those present that, in his view, often women who are not menstruating at the same time conflicted with each other.
Over dinner the offender told the victim and her mother that he had contacts in the music industry, that those contacts were responsible as either coaches or managers of well known artists including Nikki Webster and Gabrielle Cilmi, and that if they wished, he could assist the victim's career by arranging meetings with them.
The victim and her mother had flown from Ballina to Sydney for the audition. When they returned home, both received phone calls from the offender over the ensuing weeks and months. The evidence established that the offender obtained the victim's mobile phone number from his cousin, Rebecca Garbut.
A few days prior to 28 October 2009, the offender contacted the victim by mobile phone and told her that over the upcoming weekend, which was described as a halloween weekend, there were a number of parties happening in Sydney at which would be present important people he knew in the music industry or who were involved in NIDA or Brent Street (a musical academy), and that it was imperative that she come to Sydney to attend those parties with him so that she could meet these influential people. The offender also spoke to the victim's mother and notwithstanding that it was just before her end of year school exams, the offender persuaded the victim's mother to allow the victim to fly unaccompanied to Sydney at his expense.
The victim believed that she was to be met at the airport by John Bennati and Rebecca Garbut, but in fact when she arrived at approximately 6.30pm on Wednesday 28 October 2009, it was the offender who met her at Sydney Airport. He presented her with what was described as a "welcome bag" (Exhibit B). This comprised a gift bag, with a number of items in it. Those items included four condoms, a set of what are known as "nipple clamps" and postit notes which purported to be signed by a number of young women, including "Samantha". The notes included phrases such as:
"Hi! So hardcore. Love Samantha"
"Ask and he will tell ..." and
"Sir, Please give to E * you can trust her fully"
The welcome gift also included a $50 note with a pentagram inscribed on it.
The offender took the victim to his car in the car park and upon opening the front door, he removed a box containing, (and which was clearly visible to the victim), pornographic material involving naked men and women. He placed that material in the boot where there was other similar material in boxes containing other items such as masks. The offender then spent the evening driving the victim to a number of places around Sydney including a leather factory, the Dental Hospital and a hotel near Haymarket where the victim and her mother had stayed during their visit to Sydney in July that year. At the Dental Hospital the offender had left the car and had told the victim that he was to meet someone to purchase drugs, "so as to assist a young person who he believed to be taking drugs, by somehow having the drugs traced". How the drugs were to be traced was not explained by the evidence. In addition to stopping at McDonalds to have a meal, the evidence revealed that the offender drove around a number of other areas of Sydney, arriving at his place at Claremont Meadows, at 2am in the morning. The victim had fallen asleep in the car and after their arrival at the offender's home she went straight to sleep on a sofa bed set up in a living room in the house.
The victim woke at 10am the next day. When she awoke, the offender was standing nearby her dressed in a t-shirt only, so that his penis and buttocks were exposed. The victim averted her eyes and removed herself to the bathroom where she had a shower and dressed. This is the conduct that established the first count.
The victim thereafter observed the house to be full of items stored by the offender. In fact, the house was an absolute mess. This is shown in Exhibits C & D, photographs showing parts of the living areas in the house and also in Exhibit L, being the video taken by Police on 18 January 2010 when they conducted a search of the premises pursuant to a search warrant.
In the living area where the sofa bed had been set up for the victim to sleep on, there were stored a large number of pornographic DVDs and videos. Throughout the house was spread a large amount of clothing, including uniforms and female clothing made from PVC and leather of a revealing nature. There were also a number of dildos within the premises.
The evidence revealed that prior to the victim's arrival, Louise Halloran, who also lived at the premises, had spent some time over the previous two days cleaning the premises and covering up what was clearly offensive material which the jury ultimately found was indecent material.
On Thursday 29 October 2009 the offender took the victim to visit John Bennati and Rebecca Garbut at her parent's home, and then the four of them attended what was known as a safety show at Homebush. On Thursday night the offender took the victim to Westfield shopping mall at Parramatta where they shopped for clothing for the victim. During part of that shopping trip the offender recommended to the victim that she buy items which were somewhat revealing which he recommended would suit her stage presence.
On Thursday evening when they arrived back at the offender's home late in the evening, the victim tried to go to sleep, but was prevented from doing so by the offender playing music in the living area close to where she was to sleep. The offender then suggested the victim try on some shoes, and items of clothing. This led to the offender bringing boxes of clothing for the victim to try on. In the event, the victim did not get to sleep until the early hours of the morning.
On Friday 30 October 2009 the offender took the victim to see a friend of his, Gael Robinson, who is a music teacher. This was the only thing the offender did that was remotely connected with the victim's interest in furthering her singing career. Gael Robinson in fact was a music teacher, who had participated in the 2000-strong marching band at the 2000 Olympics in Sydney, and had not coached or managed Nikki Webster at all. In fact, Gael Robinson had been in an intimate relationship with the offender and had participated in what were known as BDSM practises with him during that relationship. This was something that the offender had discussed with the victim on her first night in Sydney whilst he drove around parts of Sydney.
The victim discussed some aspects of BDSM with Gael Robinson, however, once Gael Robinson found out that she was only 15 years of age, she ceased that conversation.
Following that visit, the offender took the victim to Warringah shopping mall where the victim again shopped for clothes, and for part of the time the offender assisted in that process. When they eventually arrived home very late that night, the offender introduced the victim to what was known as the "make-up room" where he showed her various items of make-up and documents.
The victim had arranged to meet the son of John Bennati the next day, and attend a Halloween party with him. Mr Bennati's son's name was James Bennati, and he was waiting to hear from the victim on Saturday as arranged between them. After she woke up on Saturday afternoon, the offender informed the victim that he had spoken to James Bennati who had informed him that there would be drugs at the party they were attend, and in fact, that James Bennati had already consumed some pills on that day. The offender therefore informed the victim that he would not permit her to attend the party, as "he knew what gays were like in Sydney".
During the afternoon the victim was again shown to the "make-up room". The offender said words to her that it was hot in the room and that she needed to drink something. He then left and came back with a crystal glass of coco-cola which she consumed. The victim began to feel her heart racing and noticed that she was speaking rapidly. Later that afternoon the offender took the victim to a place near Penrith called the Lennox Bridge, which the victim described in a text message to her mother as being a "magical place". It was clear that at the time of her attendance at Lennox Bridge, the victim was affected by drugs she had ingested.
Upon their return to the offender's home, throughout Saturday night, the offender provided the victim with two more glasses of coca-cola. On the last occasion, before handing the coca-cola to her, she observed him to stir it with a swizzle stick. She spent several hours that evening in the backyard of the premises with Louise Halloran who had an interest in astronomy.
Later, the offender showed the victim again to the "make-up room" where he showed supplies of make-up he had stored there, together with other documents and materials. At one stage the offender asked the victim to put lipstick on him, and told her that he trusted her enough to do so. She declined. The offender also informed the victim that she would learn things in that room which would confuse her, and which she must not discuss with her mother. Again, the victim responded by saying that she and her mother shared everything and that they were a team. She said there was nothing that she would not have told her mother.
The offender informed the victim of his interest in BDSM, of the fact that he was into nipple piercing which assisted in the control of one's sexual partner, that sex should involve pain, and that there was a sect in Germany which had been established for 450 years that was run by seven women who were replaced every 40 years, and that the victim would be one of the next seven women chosen.
In addition, the offender showed the victim various materials and documents, including Exhibit F, a document drawn on yellow note paper which contained various offensive entries which the Crown relied on as amounting to indecent material. It was this material, together with the items the offender showed the victim at the airport, in his car, and items in his house which established the conduct in count 2 of the Indictment.
The victim was not receptive to any of the material the offender either showed her or informed her about. Rather, she insisted that she was not interested on each occasion. At no time did the offender force her to do anything, nor did he touch or interfere with her.
It is clear that the victim was well affected by the ingestion of drugs during the Saturday evening and Sunday morning. It was the provision of amphetamines which established the conduct in count 3 of the indictment.
The victim did not sleep at all on Saturday night, and on Sunday morning was invited by the offender to pack up any of the clothing she had examined or tried on whilst she was in the house, and a suitcase was provided to her to take whatever she liked back home. She did pack the suitcase, and it contained numerous items which could be regarded as inappropriate for a 15 year old girl.
The offender then took the victim to the airport in the early afternoon of Sunday 1 November 2009 where they were met by John Bennati and Rebecca Garbut. Rebecca Garbut noticed that the victim was "highly wired" at the airport. Upon her arrival back at Ballina airport, her mother immediately observed the victim to be not herself, and wanted to take her straight to the hospital. The victim resisted and said that she just wanted to go home. Following her arrival home, the victim could not sleep and told her mother everything that had happened. She eventually fell asleep on her mother's bed. She woke early next morning and was persuaded to go to a Medical Clinic where a urine sample was taken for testing.
On 3 November 2009 they were advised of the results of that urine testing which showed traces of either methamphetamine or amphetamine in her blood. The victim's mother informed the Police who came to their home to interview the victim. She attended the next day, 5 November 2009, at the Medical Centre and was there examined by Dr Wetherall who gave evidence in the proceedings. His evidence was that the symptoms she exhibited were consistent with ingestion of amphetamines.
The investigating Police set up three phone calls between the victim and the offender, and the transcripts of those phone calls are Exhibits N, M and O in the proceedings. A search was conducted of the offender's premises on 18 January 2010 following which he underwent an ERISP interview with Detective Senior Constable Sheehan. The interview and transcript became Exhibits R and S in the proceedings.
The jury verdicts confirmed that the offender indecently exposed himself to the victim who was then aged 15 years, by waking her up on Thursday 29 October 2009 wearing no more than a t-shirt and exposing his penis and buttocks to her. The jury verdicts also confirmed that the offender exposed the victim to indecent material during the relevant period with the intention of procuring her for unlawful sexual activity. The jury verdict also confirmed that the offender provided her with an intoxicating substance, namely methamphetamines or amphetamines, with the intention of procuring her for unlawful sexual activity.
The Sentence Hearing
The Crown tendered a Victim Impact Statement which became exhibit A in the sentence hearing. The only other evidence were formal documents which disclosed that the offender had no prior convictions.
The offender tendered the report of Dr Emma Collins dated 30 November 2012 (Exhibit 1), a report of Dr Kay Wilhelm dated 31 May 2012 (exhibit 2), three testimonials of Mr Paul Camilleri, Jacquie Hajjar and Sylvia Shafton (exhibits 3, 4 and 5 respectively), together with a curriculum vitae of the offender outlining his employment history (exhibit 6).
I have carefully read the Victim Impact Statement which sets out the physical and emotional consequences of the course of conduct undertaken by the offender to the victim. She was, at the time of the offences, 15 years of age and about to complete year 10 at school. She resided in a small country town with her mother and two brothers and I have had regard to the impact on her and her family of these offences. They caused a considerable disruption to her schooling and importantly, to the socialization involved in important years of her personal development. Further, the victim has suffered through the investigation and court process, involving a number of delays until the trial commenced and then spent four days located in the remote witness room giving evidence. In summary, the victim stated:
"I came home a different person and it poisoned every ingredient of my life. I was robbed of normal teenage experiences and my innocence was stolen from me."
The report of Dr Wilhelm (exhibit 2) was written prior to trial, but following the admission of the offender to St Vincent's Hospital on 27 May 2012 following an attempted suicide. That attempt followed a previous attempt one week earlier and an even earlier attempt in 2010, following which, he was admitted to the Cummings Unit at Royal North Shore Hospital. These events led to delay of his eventual trial. As at the date of the report, Dr Wilhelm was of the opinion that the offender remained a chronic suicide risk.
The report of Dr Emma Collins (exhibit 1) sets out her findings following psychological assessment of the offender on 26 November 2012. The offender reported to Dr Collins that his hospitalisation at St Vincent's Hospital following his last suicide attempt had allowed him to develop appropriate mechanisms to avoid any further such attempt. Significantly, Dr Collins reported that the offender continued to attest to his innocence relating to the charges on which he has been found guilty. Whilst he acknowledged that the victim stayed at his home, he denied "any further offending behaviour". Following clinical assessment and psychometric testing, Dr Collins was of the opinion that ongoing assessment for personality dysfunction was advisable given that she had only interviewed the offender on one occasion. However, there were no overt clinical problem apparent from his assessment.
Dr Collins was of the opinion that the offender posed a moderate risk of reoffending by way of sexual recidivism. The major risk factors were his sexual history (both what is known and what is not known about him), his denial of the offences and the general nature of the offences. Dr Collins recommended that the offender should be eligible for custodial treatment as part of any gaol term, namely, the Custody-Based Intensive Treatment Program (CUBIT), together with ongoing treatment following his return to the community to be facilitated through Community Offender Services.
The testimonials tendered on behalf of the offender attest to the offender being previously of good character, of being a good neighbour and well respected in his workplace.
The offender has been in almost constant employment for the whole of his adult life. After spending three years in the Army after leaving school, between 1990 and 2011 he worked for a number of corporations developing skills as an operations manager, which led him to employment in February 2007 with Thales Australia Limited (formerly Australian Defence Industries) where he worked until June 2011. This employment required him to have a high level security clearance.
The Nature of the Offending - Count 1
The offence pursuant to s 61O(1) of the Crimes Act involved exposure of the offender's penis and buttocks to the victim on Thursday morning 29 October 2009. Whilst the offence carries a maximum of five years imprisonment, the Crown submitted that objectively it was not within the more serious range of conduct for such an offence, and was incidental to the two more serious offences pursuant to s 66 EB of the Crimes Act and was therefore subsumed by those two offences.
With respect to the first offence, counsel for the offender submitted that the conduct was at the lower end of the spectrum and was not an overtly sexual act directed to the victim, and involved no attempt to engage the victim directly. Counsel also submitted that the age of the victim, namely, 15 years and 10 months, was a relevant matter in assessing the objective seriousness of the conduct. It was an event in isolation and constituted the first offence in time by the offender. Standing alone, it would not require a custodial sentence and it could be subsumed in the criminality of the two other offences.
I accept that the offence in count one of the indictment was at the lower range of offending, however, I find that it was part of the course of conduct of the offender which was predatory towards the victim. In that way, it was subsumed by counts 2 and 3 in the Indictment.
Counts 2 and 3
In respect of the offences pursuant to s 66 EB of the Crimes Act, the Crown submitted that the conduct involved in those offences extended over a period of five days up until 1 November 2009. The second count on the indictment involved the offender exposing the victim to indecent material which included the items referred to above, namely, the welcome bag (exhibit B), the pornographic material in the front seat of his motor vehicle which he moved to place next to other pornographic material in the boot of the vehicle within the sight of the victim, the pornographic DVD's, books and items such as dildos located within the offender's house at Claremont Meadows and the material that he exposed the victim to in those premises including exhibit F, which clearly contained offensive material.
The Crown submitted that the conduct involved in Count 2 was not as serious as that in Count 3, which involved providing the victim with an intoxicating substance, namely, amphetamines. This was submitted to be conduct which objectively viewed was mid-range on the objective range of seriousness of such offences.
The Crown submitted that the offender had entered a plea of not guilty and had shown no remorse or contrition following the jury's verdict. The Crown further submitted that general deterrence was particularly important in sentencing offences involving children and sexual activity. The Crown referred to two Appellate decisions involving offences under the Criminal Code 1995 (Cth) ("the Criminal Code"), which, whilst not dealing with identical offences, informed the appropriate principles applicable in sentencing for such offences. In R v Asplund [2010] NSWCCA 316, the Court of Criminal Appeal, dealt with offences pursuant to s 474.27 of the Criminal Code which involved the respondent grooming a young person over the internet. McClelland CJ at CL (with whom Latham and Price JJ agreed), approved remarks made by the Trial Judge which he expressed in summary form as follows:
"(a) referred to the respondent's conduct as bombardment of CF with "indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child's best interests at heart;
(b) noted that the criminality in this conduct was 'the interference with the child's privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasises with a long-term view of having her submit to sexual activity with him;
(c) referred to there being an abuse of power and the formulation of destructive relationship;
(d) held that the respondent showered CF with money, bombarded her with communications and toyed and manipulated her in the internet exchanges;
(e) held that the transference of intimate person photographs was 'designed to break down conventional social barriers to an acceptance by her of his penis for her';
(f) held that the abuse of power in grooming CF must have had 'some corrosive impact on her, so that she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestion;
(g) held that CF was a victim in the sense that her 'psycho sexual development and emotions attached to them [were] traumatised'."
The Crown also referred to R (Cth) v Poynder [2007] NSWCCA 157 which involved an appeal from a conviction pursuant to s 474.26 of the Criminal Code 1995 (Cth). That appeal also concerned offences involving grooming over the internet and the respondent had entered a plea of guilty. The Court set out the applicable principles in respect of Crown appeals against sentences. The relevant offence carried a maximum of 15 years imprisonment. At [84] James J stated:
"The maximum penalty for an offence is a yardstick and an important yardstick but nevertheless remains "a yardstick ... (to be) taken and balanced with all of the other relevant factors."
On the question of acting out on a fantasy or fantasies on which the offender was indulging, Rothman J stated as follows:
"95. The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in the abuse of children. The fact, if it be the fact, that the perpetrator is not intending to act on her/his statements because she/he is indulging in a fantasy, may be relevant to sentence, but is not the most relevant feature.
96. The legislature, with this provision, is seeking to implement society's abhorrence of the practise of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the "grooming" of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging, the conduct has a significant deleterious impact upon any child participating in it."
The Crown, on the basis of that authority, submitted that the fact that there was no actual sexual activity here did not diminish the seriousness of the offence.
Having regard to the contents of Dr Collins' report, the Crown submitted that the offender constituted a moderate risk of re-offending. In all of the circumstances, the Crown submitted that the offender should be sentenced on each of the three charges concurrently, but that a nonparole period of not less than two years was appropriate in all of the circumstances.
Counsel for the offender submitted that the two offences pursuant to s 66 EB (3) of the Crimes Act were closely connected, the common element in both being the finding by the jury that the conduct involved an intention of making it easier to procure the child for unlawful sexual activity with the offender.
In respect of count two, the offender submitted that the extent of the exposure to indecent material was subliminal rather than overt, and that whilst there was a great deal of it in the offender's house, there was a limited extent to which the offender foisted it on the victim. For example, he did not play any of the DVD's or videos. In other words, much of the indecent material was there in the background. Counsel acknowledged that exhibit F constituted written material which was "a graphic and disturbing piece of evidence" which the offender did expose the victim to.
Counsel distinguished the cases the Crown had referred to involving offences under the Criminal Code. In respect of the offences under s 66 EB, counsel submitted that the age of the victim was relevant in that the maximum sentence for such an offence involving a child under the age of 14 increased from 10 years to 12 years imprisonment.
Without trivialising the effect of the conduct on the victim, counsel described her as a level-headed, sensible person, who was able to stand up for herself and resisted the offender's ideas and attempts to "inveigle her into his world". At no time did the offender force the issue and no overt attempt was made by him to initiate any unlawful sexual activity.
Counsel submitted that I should be cautious in applying principles set out in cases such as Poynder where different offences were involved which involved the use of technology and conduct specifically targeting young people. The issue of general deterrence was different in the present circumstances. Here, whilst the offender had targeted the victim, he had done so with full knowledge of her age, namely, 15 years, but "despite her age" he had acted inappropriately.
Counsel submitted that the offender's perception of a special bond between him and the victim was both misguided and misconceived, and relevant to the objective seriousness of the offences pursuant to s 66 EB. Despite the conduct of the offender which desensitised the victim to his world, and in particular, his interest in sexual practices known as "BDSM", there was otherwise no specific conduct which the offender had in mind. For example, there was no evidence that he was interested in children per se and in fact, the only evidence at trial was to the contrary, for example, the evidence of both Gael Robinson and Louise Halloran to the effect that his sexual interest was confined to sexual activity involving consenting adults, and that none of the pornographic material located at his home or on his computer involved children.
Counsel conceded that the third count involving the provision of an intoxicating substance was the more serious offence. He, however, submitted that it was an unusual choice of substance, the evidence being that it did not have a sedative effect like other drugs used in sexual offences such as date rape, for example, Rohypnol or Ketamine. Whilst it was conceded that the ingestion of the intoxicating substance had a significant effect on the victim, it was submitted that that effect was not to the point of her being unable to look after herself. The victim impact statement outlined her subjective beliefs in respect of the effect of the drugs on her and her withdrawal from it, but did not amount to expert evidence of any kind and could not be used presumptively as evidence of the dosage involved.
Counsel for the offender acknowledged that the offender had pleaded not guilty and that he had, since the jury's verdict, maintained his innocence in respect of the charges. There was therefore no mitigation of the objective seriousness of the charges and he was not entitled to any utilitarian discount.
I accept that the present offences may be distinguished from those in R v Asplund and R (Cth) v Poynder by the absence of any use of electronic facilities such as the internet being used as the modus of the grooming. However, I find that the course of conduct engaged in by the offender here in exposing the victim to indecent material of a highly sexual nature, and providing her with an intoxicating drug, amounts to conduct with a high level of criminality. It was carefully planned by him, and involved predatory and exploitative conduct on his part.
Counsel for the offender referred to the Court's sentencing discretion being subject to established principles including the totality principle, parity, proportionality and the avoidance of double punishment (Pearce v The Queen (1998) 194 CLR 610). He conceded that counts two and three, being the offences pursuant to s 66 EB of the Crimes Act were objectively serious and that the only appropriate sentence was full time custody. It was submitted that the sentence must reflect the need to punish the offender, general deterrence to others in the community and the need to protect the community whilst also focussing on the rehabilitation needs of the offender.
The Offender's Subjective Case
It was submitted that the offender, who is now aged 43 years, had worked hard all of his life, that he was well regarded by neighbours and friends, and that his character references, and particularly that of Mr Camilleri, were positive evidence of him otherwise being a person of good character who had lived a stable and lawful life. These offences were therefore out of character and he had paid a high price for them, having lost his employment as a consultant to the Department of Defence, having suffered a large financial cost, and having suffered a large emotional cost (as demonstrated by three suicide attempts).
Counsel further submitted that the offences occurred more than three years ago and that the offender had not committed any offences since. Further, until remanded in custody following his trial, the offender had suffered conditional liberty for a period of three years involving reporting to police three times per week and being unable to travel during the whole of that time, which had caused him to leave his employment.
Counsel submitted the offences amounted to a temporary aberration and were out of character for the offender. Despite his lack of insight, demonstrated by his lack of remorse and contrition, he was a person who had good prospects of rehabilitation and had expressed a willingness to engage in treatment whilst in custody.
Finally, counsel for the offender accepted the Crown's submission that, in respect of counts two and three in the Indictment, full time custody was the appropriate penalty, and that an appropriate period of full time custody was not less than two years non-parole period. Counsel for the Offender further submitted that this was an appropriate case for a finding of special circumstances for the purpose of s 44 (2) of the Crimes (Sentencing Procedure) Act 1999. It was submitted that the special circumstances arise given the need to promote the offender's rehabilitation to enable him to retake his place in the community.
Determination
In respect of the first offence under s 61O of the Crimes Act 1900, I accept that, notwithstanding the offence carries a maximum of five years imprisonment, the conduct of the offender was far from the worst category of case. It was however, part of the course of conduct undertaken by the offender involving predatory conduct towards the victim.
With respect to counts two and three in the indictment being the convictions pursuant to s 66 EB(3), I note that both the Crown and offender agree, having regard to the seriousness of the offences, that the offender is to be sentenced to a period of full time imprisonment. I am satisfied, pursuant to s 5(1) of the Crimes (Sentencing Procedure) Act 1999, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in the circumstances, having regard to the high level of criminality involved in the offender's conduct.
I also note that both the Crown and the offender agree that any sentences in respect of all three offences are to be served concurrently, given they stem from the same course of conduct.
I am mindful of the subjective factors put on behalf of the offender. The evidence demonstrated that he was a man of good character with no prior convictions. However, I am satisfied that those matters were of assistance to the offender in the commission of the offences and therefore pursuant to s 5A Crimes (Sentencing Procedure) Act, I have not taken them into account as mitigating factors pursuant to s 21A of the Act.
The offender was born on 5 June 1969 and therefore was aged 40 years at the time of the offences and is now aged 43 years. The charges and his subsequent conviction have had a significant financial and psychological impact on his life and will continue to do so.
I am also mindful of the totality principle involved in sentencing, and the need to recognise the principles set out in Pearce v The Queen supra by the majority at [45]. The maximum penalty of 10 years for each of the offences in counts two and three of the Indictment is an indication of the seriousness of the criminal conduct involved. As outlined above, it remains a yardstick to be balanced with other relevant factors. The first of those factors is the need for deterrence to deter him, and others, from committing offences of this kind in the future. There is a paramount public interest in protecting children from sexual abuse and in this case, the offender embarked on a course of conduct which was both predatory and exploitative as the Crown has submitted, in which he specifically targeted the victim, persuading her mother to allow her to travel from a small country town to Sydney on an entirely false premise and when she arrived in Sydney to involve her in conduct which the Crown correctly described as desensitising her to what could only be described as indecent and offensive material and finally, providing her with an intoxicating substance, namely, amphetamines, on three occasions during her visit with the intention of making it easier for him to procure her for unlawful sexual activity with himself.
That conduct took place at the offender's home where he had secreted her away from those who cared for her and had her best interests at heart, namely, her mother and family.
Like the respondent in R v Asplund, the criminality of the conduct was "the interference with the child's privacy, the right to a healthy psychosexual development, by requiring her to feed into and gratify his sexual titillation and fantasies with a long-term view of having her submit to sexual activity with him". Again, similarly, there was an abuse of power in that he was in a position of authority over her and the exposure of indecent material was designed to desensitise her to his belief system.
I have had regard to s 21A of the Crimes (Sentencing Procedure) Act 1999 and factors relevant to this matter which may constitute either aggravating factors pursuant to s 21A (2) or mitigating factors pursuant to s 21A (3) that I should take into account in determining the appropriate sentence for the offences. I have taken into account the following aggravating factors pursuant to s 21A (2):
"(cb) The offence the offender causing the victim to take, inhale, or be effected by a narcotic drug ... or any other intoxicating substance,
(g) The injury, emotional harm, loss or damage caused by the offence was substantial.
(k) The offender abused a position of trust or authority in relation to the victim.
(l) The victim was vulnerable, for example, because the victim was very young ...
(m) The offence was part of a plan or organised criminal activity."
I further note that the section provides that "the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". I have therefore disregarded the aggravating factors set out in ss 21A (2), (cb) and (k) to the extent that those are matters which form elements of the various offences.
I have also had regard to the following mitigating factors pursuant to s 21A (3), namely:
"(e) The offender does not have any record (or any significant record) of previous convictions.
(f) The offender was a person of good character.
As outlined above, I have had regard to s 21A (5A) and that I have disregarded the offender's good character or lack of previous convictions as mitigating factors on the basis that I am satisfied that those factors were of assistance to the offender in the commission of each of the offences.
I have had regard to the Victim's Impact Statement and the impact that this has had on her physical and emotional development. I note there is no medical evidence against which to assess the Victim Impact Statement. However, despite the lack of any expert psychiatric evidence, it is a matter of commonsense that these events had a substantial emotional impact on the victim. I have therefore taken the Victim's Impact Statement into account, but I make it clear that I have done so not to aggravate the offender's culpability.
The conduct involved in the two offences under s 66 EB involved a high level of criminality to which the offender has pleaded not guilty and for which he does not accept responsibility. He has expressed no remorse or contrition and still proclaims his innocence.
I find the conduct involved in count 2 in the Indictment, namely, exposing the victim to indecent material with the intention of making it easier to procure her for unlawful sexual activity, within the lower range of seriousness of the offence, particularly having regard to the offender not forcing himself on the victim and given her resistance to the material to which she was exposed.
That offence is, however, closely connected with the third count in the Indictment and I find that the conduct of the offender providing the victim with an intoxicating substance, namely, amphetamines, with the intention of making it easier to procure her for unlawful sexual activity with himself, more serious.
I acknowledge the need for the offender to undergo suitable rehabilitative treatment when released from custody and that such need is capable of amounting to special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act - see Muldrock v The Queen (2011) 244 CLR 120 at [58]. Also, the offender will need an extended period to receive counselling and/or direction to adjust to community living. To reflect the totality of the criminality by partial accumulation of sentences that is required in this matter is a further special circumstance requiring adjustment of the relationship of the non-parole period to the balance of sentence in the sentence to be imposed in respect of count 3. As the offender has stated a willingness to undergo rehabilitative treatment whilst in custody, I find that he will require additional supervision to find his way in the community following his release. For those reasons I find special circumstances so as to warrant a departure from the proportions set out in s 44 (2) of the Crimes (Sentencing Procedures) Act 1999.
Orders
I make the following orders:
(1) Count 1 in the Indictment. Convicted.
For the offence of committing an act of indecency towards EN, pursuant to s 61O(1) of the Crimes Act, I sentence the offender to a term of imprisonment of 6 months commencing on 26 October 2012 and expiring on 25 April 2013.
(2) Count 2 in the Indictment. Convicted.
In respect of the offence that the offender did expose EN to indecent material with the intention of making it easier to procure her for unlawful sexual activity with himself pursuant to s 66 EB (3) of the Crimes Act, I sentence the offender to a term of imprisonment of 2 years commencing on 26 October 2012 and expiring on 25 October 2014.
(3) Count 3 in the Indictment. Convicted.
In respect to the offence that the offender did provide EN with an intoxicating substance, namely, amphetamines, with the intention of making it easier to procure her for unlawful sexual activity with himself pursuant to s 66 EB (3) of the Crimes Act, I sentence the offender to a term of imprisonment by way of a non-parole period for a period of 2 years commencing on 26 April 2013 and expiring on 25 April 2015. I fix a balance of sentence of imprisonment of 1 year and 4 months expiring on 25 August 2016. The total sentence of imprisonment is 3 years and 4 months.
(4) I recommend the offender be placed in a Custody Based Intensive Treatment Program for sexual offenders whilst serving his sentence.
Decision last updated: 05 March 2013
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