R v Damaso

[2022] NSWDC 473

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Damaso [2022] NSWDC 473

Hearing dates:

19 August 2022

Date of orders:

19 August 2022

Decision date:

19 August 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Ex tempore remarks

See [29] –[31]

Catchwords:

SENTENCING - Record an intimate image without consent- Distribute intimate image without consent.

Legislation Cited:

Crimes Act 1900 (NSW)
Crime (Sentencing Procedure) Act 1999 (NSW)

Category:

Sentence

Parties:

Regina
Wayne Douglas Damaso

Representation:

Solicitors:
Mr Janke (Offender)
Mr Whitaker (ODPP)

File Number(s):

2020/00242659

Publication restriction:

Non-publication of any matter which may identify or lead to the identification of the complainant/victim (s578A Crimes Act).

Ex tempore Judgment

1. The offender appears to be sentenced in relation to two offences which were committed on 15 June 2020. He was arrested the same day. The first charge for sentence is under s 91P(1) of the Crimes Act, that is, record an intimate image without consent, it carries a maximum sentence of three years imprisonment and/or a fine of 100 penalty units. The second charge is under s 91Q(1) being distribute intimate image without consent, and that has a maximum sentence of three years imprisonment and/or a fine of 100 penalty units.

2. The offender offered to plead guilty to those charges when the matter was still in the Local Court, however, there was some confusion or misunderstanding that led to that not occurring. The offender was not the subject of conditional liberty at the time, however, was sentenced to an 18 months Community Correction Order for failing to comply with reporting obligations; it commenced 8 July 2020 and concluded 7 January 2022.

3. The Community Correction Order to which I have referred related to a disclosure breach of the protection register for not disclosing a certain matter to the police, which was discovered upon his arrest in respect of these offences.

Agreed facts

4. The facts have been summarised by the Crown and are not contentious; in fact, the solicitor for the offender agrees that his client should be sentenced based upon the facts set out in MFI 1, the Crown’s sentence submissions. In respect of count 10 while in the loungeroom of his own home the offender had put his penis into the victim’s mouth, and she placed her hand around the shaft of the penis. The offender used his mobile phone to take a photo of the penis in the victim’s mouth; the photograph was exhibit F in the trial in respect of other matters. The photograph was taken without the consent of the victim. The offender deleted the photograph but subsequently recovered it from his deleted files on his mobile phone.

5. The following facts relate to count 12. The offender uploaded the photograph to the website titled “My Naked Selfie” prior to his arrest. The offender did so for his own sexual gratification. The victim did not consent to the photograph being uploaded to any website.

6. The offender participated in two electronically recorded interviews which were exhibits L and M in the trial. During the first interview the offender told the police that:

1. he had taken a picture of the complainant sucking on his penis, that the complainant asked him to delete it but he had recovered it off his deleted files and uploaded it to the website previously referred to;

2. he did not have consent from the complainant to upload the photograph;

3. he uploaded the photo for sexual gratification; and

4. that his username was “markXXXXX [email protected]” and his password was “1loveXX”.

7. During the second interview the offender showed police the photograph on the “My Naked Selfie” website; he identified it as a photograph of the victim and himself. He stated that he had uploaded it around nine hours prior based upon when people started to like the photograph. The offender showed police five notifications that other persons had liked the photograph; the victim had not consented to the photograph being uploaded. His purpose for uploading the photograph was for a thrill and sexual gratification.

8. At trial the offender gave evidence consistent with his interviews and gave further evidence that he uploaded the photograph and permanently deleted it from his phone and he did not want to have it on his phone but also did not want to get rid of it (transcript 260 at 25). The offender stated that he did not initially intend to take a photo but when he tried to turn on the torch on his phone the camera came on and he decided to do so (transcript 276 at 5). The offender did not think about how the victim would react to having the photo taken or how she would feel about him recovering the deleted file as his sexual gratification was more important to him (transcript 278 line 44).

9. The state of the victim’s knowledge about the photograph being taken was in dispute at trial. The offender stated that when he took the photo the victim was alerted by the flash and said to him “delete it, you’ll get in trouble”. He then showed the victim that he had deleted it (transcript 257 at 43). The victim denied any knowledge of the photo being taken or telling the offender to delete it (transcript 61 at 24 and 127 at 38). It was conceded by the Crown that the accused’s version is supported by the fact of the deletion of the photograph and that accepting the victim’s version of events over the accused may be inconsistent with the findings of the jury; that is, that the jury found the offender not guilty in respect of other offences arising out of this incident and it may be inferred that the jury did not accept the complainant’s evidence.

10. The Crown made the following statement in MFI 1:

This evidence is relevant however in that it demonstrates it is highly unlikely that either of the offences would have been detected by police in the absence of the admissions by the offender, given the lack of complaint by the victim.

11. It is that submission which enlivens an application under s 23(2)(b) of the Crimes (Sentencing Procedure) Act.

Subjective Case

12. The offender has a criminal history of indecency, the first occurring on 25 August 2014, he was charged with wilful and obscene exposure for which he received a s 9 bond for 12 months. The facts relating to that are set out in exhibit A and I do not intend to refer to them in detail save to observe that it involved the offender on 22 August 2014 and 25 August 2014 masturbating in his work vehicle. I note that in the fact sheet for charge 761 the following appears: “The accused had previously been spoken to about this behaviour by his employer prior to these incidents.”

13. Charge number 704 related to offending that took place on 16 February 2016 when the offender, somewhat alarmingly, drove a vehicle so that it was adjacent to a bus carrying school students. A young girl 16 years of age saw the accused with his penis exposed in the act of masturbating. One of the witnesses stopped her younger sister, aged ten, from looking at the offender. Again, somewhat troubling and alarmingly, he was looking up at the students whilst masturbating.

14. The offender’s criminal history is such that it does not aggravate the offending, but it certainly disentitles him to a finding of good character and leniency which might otherwise flow from such a finding.

15. A Sentencing Assessment Report has been obtained; it is dated 15 August 2022. The offender told the author that what he did in terms of the photograph, et cetera, was done for his own sexual gratification and a thrill. The author suggested the offender had a sense of entitlement when it came to achieving sexual gratification. The offender admitted that he had an addiction to pornography.

16. The author of the report was informed that the offender had been diagnosed with a borderline personality disorder that may result in difficulty regulating his emotions and is associated with impulsive and risky behaviour; he takes medication to manage that condition. He was assessed as being at risk of re‑offending; he was also assessed as being suitable for community service work.

17. Attached to the sentence assessment report is a case note report by Michelle Small of Wyong Community Correction. Again, he was assessed as being above average relevant to other male sex offenders for re‑offending. It was suggested by the author of the case note report that in the event that he does not go into custody there are options within the community for treatment in relation to his perversion which hopefully will achieve a reduction in the risk of re‑offending.

Written Submissions

18. I am assisted by submissions on behalf of the Crown MFI 1. The Crown begins by setting out the offences and the maximum penalties. Of course, the maximum penalties are guideposts for sentencing judges indicating the seriousness with which the community through Parliament views the offending. I note there is a backup charge of assault occasioning actual bodily harm which remains on a s 166 certificate, that is sequence 9; that charge is withdrawn and dismissed.

19. The Crown has helpfully extracted part of the Second Reading Speech of the Attorney General upon the introduction of these offences to the Crimes Act 2017. I accept that this type of behaviour has the effect of causing victims shame, embarrassment and humiliation which may impact adversely a victim’s reputation, family, friends and employment.

20. I am also assisted by submissions prepared by the solicitor for the offender, MFI 2. It was submitted that the offences fall at the very lowest end of objective seriousness; I have already made findings contrary to that submission. It was submitted the offender is engaged in counselling, entered pleas of guilty at the earliest stage, made full admissions to police and has learnt his lesson such that the prospects of rehabilitation are positive.

Objective seriousness

21. The Crown submitted the following factors were relevant to the determination of objective seriousness:

1. the quantity of the material involved, in this case a single image;

2. the motive of the offender, in this case personal sexual gratification;

3. the degree of planning and I consider it to be relatively spontaneous although the subsequent conduct involved a deliberate act;

4. the offender acted alone;

5. the photo was distributed to a website designed for persons with like‑minded interest in such photographs;

6. the photograph was liked by five website users by the time of the police interview.

22. In my opinion the objective seriousness of count 10, that is intentionally record the intimate image, the s 91P offence, is just below the mid-range given that it involves just one image and having regard to the other factors to which I have just referred. I find the objective seriousness for count 12, that is the s 91Q offence, to be at the mid-range having regard to the circumstances in which that offence was created, namely, that the offender told the victim that the image was deleted, recovered the image from his deleted folder and uploaded the image to a public website.

Mitigating factors

23. The plea of guilty in the Local Court would ordinarily entitle the offender to a discount of 25%. For reasons which appear to have arisen by error the guilty pleas were not recorded in the Local Court; as a consequence the only discount available to the offender under s 25D in respect of the guilty plea is 10%.

24. The Crown concedes that the offender is entitled to what is referred to as an Ellis discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act. That permits me to impose a lesser sentence having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities. In respect of the subject offending, it is submitted by the Crown that had the offender not volunteered and shown the police the image on the website then it would not have been discovered by them. Plainly, having regard to the factors in subsection (2) that assistance was of significance to the authorities.

25. I find an additional discount of 15% ought to be allowed in respect of that assistance, resulting in a total discount of 25%. In making that finding I am satisfied that it will not result in a lesser sentence which is disproportionate to the nature and circumstances of the offending.

Sentence

26. I find the threshold under s 5 of the Crimes (Sentencing Procedure) Act is not met and that a sentence outcome other than one of imprisonment is available. It was submitted on behalf of the offender that a Community Correction Order would be appropriate; I accept that submission.

27. I intend to impose a Community Correction Order in respect of the two offences. I note that pursuant to s 8 of the Crimes (Sentencing Procedure) Act I can, having convicted a person, make a Community Correction Order in relation to the offender. Part 7 of the Act relates to Community Correction Orders. The maximum term is for three years, there are standard conditions and additional conditions which can be imposed.

28. Mr Damaso, you are convicted of the two offences in respect of which you pleaded guilty, that is, recording an intimate image without consent in breach of s 91P(1) of the Crimes Act and distributing an intimate image without consent in breach of s 91Q(1) of the Crimes Act.

29. In respect of the s 91P offence, that is, taking the image, I impose a Community Correction Order for a period of two years commencing today 19 August 2022 and expiring 18 August 2024. Attaching to that order are the standard conditions, namely, you must not commit any offence and you must appear before the Court if called on to do so at any time during the term of the Community Correction Order. Further, I impose a rehabilitation or treatment condition to be undertaken by way of supervision of Community Corrections. You are to participate in any program or course as required of you by Community Corrections.

30. In respect of the second offence, that is the distributing the intimate image offence, I impose a Community Corrections Order of three years commencing today 19 August 2022 and expiring 18 August 2025. That order is also subject to the standard conditions, that is, that you must not commit any offence and, two, you must appear before the Court if called upon to do so at any time during the term of the Community Corrections Order. In respect of this second order, I impose a community service work condition requiring the performance of community service work. Mr Damaso, that will require you to do 150 hours of community service work over a three-year period and you will be instructed about that matter by Community Corrections.

31. In respect of both orders I direct you to telephone Wyong Community Corrections within seven days to inform them of the orders made today.

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I certify that the previous 31 paragraphs are an adapted version of the Remarks on Sentence of his Honour Judge D Wilson SC given in Gosford District Court on 19 August 2022.

H Place

Associate

Amendments

14 October 2022 - Paragraph 13

21 November 2022 - details anonymised

Decision last updated: 21 November 2022