R v Daniel William Peckham

[2009] NSWDC 368

CITATION:	R v Daniel William PECKHAM [2009] NSWDC 368
HEARING DATE(S):	29 October 2009 30 October 2009 20 November 2009
JUDGMENT DATE:	4 December 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [66], [67] & [68]
CATCHWORDS:	CRIMINAL LAW - Sentence - Using a carriage service to have child pornography material transmitted - Using a carriage service to procure a person under sixteen years of age, - Using a carriage service to menace, harass or offend - Attempting to pervert the course of justice - Aggravated sexual intercourse without consent - Sexual manipulation - Grooming
LEGISLATION CITED:	Crimes Act Crimes Legislation Amendment (Telecommunications Offences And Other Measures) Bill 2004. Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Veen (No 2) v The Queen (1988) 164 CLR 365
PARTIES:	The Crown Daniel william Peckham
FILE NUMBER(S):	DC 09/11/1106 (Cth); DC 09/11/0444 (NSW)
COUNSEL:	E Ozen - Offender
SOLICITORS:	Director of Public Prosecutions Director of Public Prosecutions (Cth) Legal Aid Commission - Offender

SENTENCE

1 HIS HONOUR: Daniel Peckham is to be sentenced for a significant number of offences relating to his abuse and manipulation of young girls, including the sexual assault of one of them. The offences all arise out of the offender’s use of the internet, a medium which attracted him because of difficulties he has with more traditional social contacts.

2 In these remarks on sentence I will be using the names of the victims of these offences and I remind all of those present that I have made an order that there be no publication of any material identifying or attempting to identify any of the victims in these matters.

3 The offender is to be sentenced for the following offences:

4 An offence of using a carriage service to have child pornography material transmitted relating to a person by the name of SP. If dealt with on indictment, that carries a maximum penalty of ten years imprisonment, but it is put before me on a s 166 certificate and so the jurisdictional limit is one of two years.

5 An offence of using a carriage service to procure a person under sixteen years of age, also relating to SP. The maximum penalty is fifteen years.

6 Using a carriage service to menace, harass or offend AC. The maximum penalty for that offence is three years imprisonment.

7 An offence of using a carriage service to have child pornography material transmitted relating to AC. Again, the maximum penalty is two years imprisonment when dealt with summarily.

8 Using a carriage service to procure a person under the name of sixteen years of age, again relating to AC, the maximum penalty being fifteen years.

9 Using a carriage service to have child pornography material transmitted relating to SC. Two years imprisonment, when dealt with summarily.

10 An offence of attempting to pervert the course of justice relating to communications to LE, the maximum penalty for that offence being five years.

11 (There is a second offence of attempting to pervert the course of justice relating to communications with ER, that is on a s 16(b)(a) schedule.)

12 Finally, as far as the Commonwealth offences are concerned, using a carriage service to procure a person under the age of sixteen years of age relating to BP again, the maximum penalty being fifteen years imprisonment.

13 There is a State offence also for which the offender is to be sentenced, that is an offence of aggravated sexual intercourse without consent, the circumstance of aggravation being that the victim was under the age of sixteen. The maximum penalty for that offence is twenty years imprisonment, and it has a standard non-parole period of ten years.

14 The victim of the State offence was also the victim of some of the Commonwealth offences and thus the State offence intertwines with the Commonwealth offences. Despite that, there was a bifurcation in the prosecution, with the State and the Commonwealth Directors of Public Prosecutions being separately represented. That continues to this day. Quite why that was the case was never satisfactorily explained. In an era where the resources available to the criminal justice system are scarce, it was a regrettable waste of resources for the State DPP not to ask the Commonwealth DPP to prosecute the State offence, as it could easily have done.

15 The offences arose in the following way. Since at least May 2007 the offender has been involved with a website for an organisation known as the Rookwood Gothic Society. Some young members of today’s society develop an interest in Gothic matters and demonstrate this interest by wearing dark clothing and identifying themselves as Goths. Some of those young people who use the internet to pursue an interest in Gothic matters found their way to the Rookwood Gothic Society website.

16 Fortunately a member of the public who accessed the website became concerned at what was contained on it and he or she sent an email to the Australian Federal Police online child sexual exploitation team. That email referred the Federal Police to the site and expressed concern that the site appeared to be being using to solicit minors for sex.

17 When AFP officers accessed the site they confirmed the concerns expressed in the email to them. They found, for example, that the site contained this post:

“If you have hang-ups about getting naked, then you are not welcome. If you aren’t willing to let me have sex with you, then you are not welcome.”

18 Listed on the website was a Hotmail account which later investigations revealed was used by offender. Police therefore went to the premises where the offender lived with his father. They were armed with a search warrant and seized a computer belonging to the accused. Contained on that computer were a number of things related to the charges to which the offender has now pleaded guilty. The offender was then interviewed at Liverpool Police Station where he made a number of admissions, in particular about his involvement with the Rookwood Gothic Society. He confirmed that anyone who wanted to become a member of this society had to send him a naked picture of themselves or have sex with him. He told police he had a sexual interest in young girls, and has been able to persuade a number of females he knew to be under the age of eighteen to send him images and videos.

19 Let me turn in more detail to the various specific offences. The offender met SP on line through his involvement with the Rookwood Gothic Society. He was aware that she was only thirteen years of age, but despite that he encouraged her to send naked photos of herself to him. He received photos showing SP topless and talked to her online about sexual matters. SP later told police that the only reason she sent naked photos of herself to the offender was because he told her that it was a condition of her joining the Rookwood Gothic Society. Although she did not want to comply with either that request or a request that she have sex with him, the offender responded, “It’s the only way to become a member.”

20 After she sent the photos she and the offender had a number of online conversations, a large number of which centred on the offender’s desire to have sex with her before she turned fourteen. To that end the offender persuaded SP to go to Rookwood Cemetery, but when they met there they agreed they would not have sex. SP said they kissed for about ten minutes and made plans to meet later on.

21 The next victim was a young girl who was fifteen years of age at the time, named AC. She also began communicating with the offender over the internet due to her interest in Gothic matters. AC told the offender that she was fourteen years of age, at the time they first had internet contact. Then only a few days later the offender asked AC to email naked photos of herself to him and to have sex with him.

22 AC said she would not have sex with him because she was under age, but the offender merely asked if they could have sex before she turned fifteen because it was more perverted that way. Eventually they met up at Rookwood Cemetery on 19 April 2007. They went into the cemetery where they sat down and they had a conversation next to one of the open tombs. The offender kissed her and then walked inside the tomb saying, “I think we should have sex.” AC did not want to have sex, but she went inside the tomb and sat down.

23 The offender continued to try to kiss AC and then placed his hand underneath her skirt, moving her underpants to one side and placed two of his fingers inside her vagina. He did all of this without her consent. He then began to take his penis out of his pants, but AC pulled away from him. They had an argument and left the cemetery separately.

24 The offender was apparently annoyed that the complainant did not do what he wanted at Rookwood Cemetery, and so he posted a video of AC in her underwear on YouTube as punishment. When AC asked him to remove the video he said he would not, but then said he would mark the video “private”, although this would still allow the video to be viewed by the offender’s friends.

25 The offender then threatened AC, saying that if she did not send naked photos of herself and have sex with him, he would remove the private limitation from the video and put it back on public display. When AC declined to do either of these things the offender carried out his threat, putting the video back on public view. That video was subsequently removed by YouTube administrators, but about a week after that the offender asked AC to send him naked photos of herself and have sex with him. When AC again declined, the offender threatened to put the video back on YouTube, as a result of which AC took three photos of herself naked and emailed them to the accused.

26 As part of their investigation police located a number of emails sent by the accused to AC ,which demonstrate both the offender’s sexual desire in her and his ability to manipulate her.

27 Another of the offender’s victims was a young girl by the name of SC. She began communicating with the offender in October or November 2006 and he soon requested naked photos of her, saying that it was so he could trust her. She took about three photographs of herself with a mobile phone and sent them to the offender. She was reluctant to do this, but she did so in order to maintain contact with the offender.

28 The next victim is NLTP, known as BP. She too began communicating with the offender over the internet and began to have regular online conversations with him. The offender used the internet to arrange meetings with BP, where he would attempt to touch her body against her wishes.

29 I turn now to the facts relating to the two offences of attempting to pervert the course of justice. After his arrest the offender started sending letters to LE. In one of them the offender asked her to log on to his Hotmail account and hide any pictures she could find there. The offender was trying to remove the images from the internet, thus destroying some of the evidence against him, but, and this is important, he also wanted to keep those images for his later sexual gratification.

30 It is also important to note that despite the fact that he was in custody on matters relating to the use of the internet and sexual manipulation of young girls, one of the things he wanted LE to do was, “Find me new fans, young loves, people to mail me.”

31 The other offence of attempting to perverse the course of justice involved a similar request by the offender, this time to ER. He knew full well that he was asking her to do something seriously illegal because he began one of the letters to her with the words “Are you really wanting to damn yourself?” In that letter he again asked her to save the pictures in his Hotmail account, saving them to a CD and then hiding that CD.

32 I received victim impact statements from a number of the complainants, one of them AC and I read her statement to the court. There is one aspect of the victim impact statement of BP which I must specifically mention. In her statement BP refers to the offender having sexual intercourse with her despite the fact that she was only fifteen years of age. A large part of the impact of the offender’s conduct upon her related to these acts of sexual intercourse and their aftermath. The offender faces no charges in relation to him having sexual intercourse with BP and so it would not be appropriate for me to sentence him on the basis that the criminal conduct for which he is to be sentenced had the effects upon BP that she speaks of. With that qualification, however, the consequences reported in the victim impact statements were entirely foreseeable.

33 One thing which this case has demonstrated is the relative ease with which young and, because of their youth, naïve girls can be persuaded to act in a way which is so clearly against their interests, by a person prepared to manipulate them for his own sexual gratification. Of course whether or not there were victim impact statements I would proceed on the basis that the victims were harmed by the offender’s behaviour.

34 This is not the sort of offence where police officers themselves were using the internet pretending to be children for the purposes of identifying those who would commit offences of this type. In this case each of the victims was a real person who was harmed by what the offender did.

35 The offender was born in 1984. He is an only child and was raised in the Liverpool area. His parents separated and he lived with his mother for a while, but was living with his father at the time he was arrested. He completed primary school, but once he started to go to high school he was bullied and so from year 7 he refused to go to school at all. He was home schooled by his mother for a couple of years, but discontinued school altogether in year 9.

36 Thereafter he appears to have led a rather isolated existence. He told Dr Nielssen, for example, that for the six years between leaving school and being arrested he basically did nothing as he could not cope with most social settings. He had done some unpaid work on a farm, but that was his only employment. He was on a pension for disability support due to his disabling anxiety disorder at the time of his arrest for these matters.

37 A great deal of the sentencing proceedings was taken up by evidence and submissions regarding the likelihood that the offender would commit further offences upon his release from custody. This is, of course, a relevant matter to the sentence I will ultimately impose upon him.

38 I received reports and heard evidence from three psychiatrists and one psychologist. Predicting the likelihood of recidivism in a case for an individual offender is a highly inexact science. It is one thing to be able to say that in a population of sexual offenders a certain proportion will be likely to commit further offences, but unless the proportion of population which will re-offend is either very large or very small, the accuracy with which anyone can predict whether an individual offender will re-offend is very low indeed. With these clear limitations in mind, let me turn to some of the issues raised in relation to the prospects of the offender committing a further sexual offence in the future.

39 Dr Collins, the psychologist, prepared a number of reports. As part of her assessment of the offender she used two reasonably regarded tests, the Static-99 and the SVR-20. Dr Collins assessed the offender’s score on the Static-99 test as placing him in the low/moderate risk of re-offending categories under both Static-99 and SVR-20.

40 However the validity of the outcomes reported by Dr Collins is open to question for at least the following reason: the offender had earlier appeared on a charge of common assault. The circumstances of that assault where that after the offender’s mother revealed that she had sexually assaulted him when he was much younger, he took a knife to her throat and then later on punched and kicked her.

41 He was dealt with in the Local Court for an offence of common assault and given the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act. One of the matters to be considered under Static-99 and SVR-20 concerns an offender’s prior criminal history. Dr Collins treated the s 10 order as a dismissal. But if the authors of those tests, in particular the Static-99 test which was developed in Canada - regarded a “dismissal” of a charge as being a finding the offence was not committed, then it may well be that it was more appropriate to treat, for the purpose of the psychological testing, the outcome in the Local Court as a conviction. If this is the case the actuarial risk of re-offending increased in the Static-99 test from low to moderate to medium to high and in the case of the SVR-20, the risk of re-offending goes from low to moderate to moderate.

42 Of course, tests such as these can only be used as a guide. I am certainly not able to find beyond reasonable doubt that the offender has a particular level or risk of re-offending. What I can say is that there is a moderate risk that he will do so. Unfortunately it may well be that his risk of re-offending is not influenced very much by whether he participates in any programs made available to him in custody. Although Dr Collins considered that if the offender participated in programs in custody, his dynamic risk factors would probably reduce. Dr Nielssen gave uncontradicted evidence that there was no published proof that programs such as CUBIT effect recidivism rates and other similar program overseas or interstate showed no reduction in recidivism rates amongst those who successfully completed the programs.

43 What is most likely to influence the likelihood of this offender re-offending would be for him to receive treatment and counselling to deal with other aspects of his personality such as his social ineptitude and social phobia. If these can be successfully treated, then that will enable him to form more appropriate relationships on his release from custody; and that itself will reduce the risk of further offending of this kind.

44 I do not mean to suggest however that successfully treating the offender in a way that overcomes his social problems will inevitably mean that he commits no further offences of this kind. As Dr Diamond explained, sexual gratification is a very powerful drive and the offender’s preoccupation with sexual matters was exceptional. Dr Diamond expressed the view that;

“the determination, detail and drive behind his attempts to gain access to young girls cannot be underestimated. It is the absolute core of his existence. From the material presented to me there is no evidence of any other interest to which he has applied his intellect or skills.”

45 Some, including Dr Nielssen, were perhaps a bit critical of the way that Dr Diamond had expressed himself in that paragraph, but of course he had prepared that report for the assistance of investigating police, who were seeking to understand the behaviour of the offender as part of their investigations into his misconduct.

46 The extent to which the offender was consumed by sexual interest in young girls can be seen from the circumstances surrounding the commission of the two offences of attempting to pervert the course of justice where he not only asked for assistance in removing incriminating material, which is perhaps not surprising - but also asked that this material be stored, not destroyed, presumably so that it could be used for his later sexual gratification.

47 So although treatment and counselling to deal with the offender’s social interaction may go someway to reduce the likelihood of re-offending as the offender forms more appropriate relationships in the future, the offender’s interest in sexual matters involving post-pubescent but underage girls was a substantial part of the offender’s personality.

48 Although a great deal of evidence was called on the risk of re-offending, there was ultimately not much difference between the cases advanced by the Crowns, (that is both of them), and the offender. Ultimately all agree that the offender had a moderate risk of re-offending. The Crowns did not submit that I could apply the principles of preventable detention to be found in Veen (No 2) v The Queen (1988) 164 CLR 365 but the offender did not submit that he had good prospects of rehabilitation.

49 Despite the perceived need to call oral evidence from three psychiatrists and one psychologist on the issue of the risk of future re-offending and thus the need for me to deal with it in these remarks on sentence, ultimately the position was neutral.

50 The offender entered pleas of guilty at an early stage. He is entitled to a discount on his sentence for the state offence to reflect the utilitarian value of that plea; and a discount on the commonwealth offences to reflect his willingness to facilitate the administration of justice.

51 Allied to that latter aspect was the circumstance that the prosecution was only able to prove the two offences of attempting to pervert the course of justice because of admissions made by the offender. According to the authorities I am able to take the strength of the Crown case into account in determining the discount for the plea applied for a plea of guilty for commonwealth offences. In some ways this was a strong case but I am not going to reduce the discount from what I would otherwise apply because of that circumstance because the offender’s willingness to facilitate the course of justice was confirmed by his attitude to the offences of perverting the course of justice.

52 For all offences the sentence I will impose will be approximately twenty-five per cent less than would otherwise have been the case, to reflect the pleas of guilty. The pleas of guilty are but one aspect of the offender’s cooperation. He assisted the authorities in their investigation of his offences, quite apart from pleading guilty and making admissions. There is of course one qualification to the cooperation offered by the offender to the authorities and that concerns the fact that whilst on remand and in custody he did precisely the opposite of cooperating with the authorities by attempting to arrange for evidence against him to be destroyed.

53 The offender did not give evidence before me at any stage. This is an impediment to me finding that he was genuinely remorseful for what he has done. Indeed it was conceded by Mr Ozen who appeared for the offender, that there was no real demonstration of remorse by his client. The offender at one stage conceded that his conduct had been disrespectful but this is a significant understatement of what he did.

54 It is clear that the offender spent a great deal of time and effort in the commission of his offences but that is a common feature of grooming offences. It also reflects the offender’s problem socialising in places other than cyberspace and the fact that he could interact with people over the Internet in what to him was a less threatening way.

55 Many offences of grooming involved cases where the age gap between offender and victim is significantly greater than the age gaps in the present offences. Many offences involve much younger victims and many offences involve much older adults, usually men, who pretend to be younger than they really are, using the anonymity of the Internet to cloak their actual age. Related to this aspect is the difference between the offender’s chronological age and his level of maturity. He was functioning, probably because of his upbringing, more at the level of an adolescent.

56 Because of the nature of these offences, the offender is at risk in prison custody. This risk is heightened because of the offender’s appearance, immaturity and build. He is currently classified as limited association which means that he has less access to education, exercise and recreation than prisoners in the mainstream prison population.

57 It used to be the law that there was a rather inflexible approach to the effect of custodial conditions. It was almost automatically assumed that these conditions would be harsher than those for the general prison population. But more recently the Court of Criminal Appeal has recognised that it is not inevitably the case that those serving their sentences on protection will do so in conditions of custody which are more onerous than those of other prisoners. So even if the offender does spend his entire sentence on protection, it should not be assumed that he would do his time harder than other prisoners. There is a risk that this will be the case and I have taken that risk into account in formulating the appropriate sentence.

58 It is clear that personal and general deterrence have significant roles to play in the sentence I will shortly announce on the offender. Even given treatment whilst in custody and supervision after release on parole there remains a risk that the offender will be tempted to commit further offence of this type against young girls. The sexual gratification he obtained from his offending is a powerful incentive for him to re-offend despite the best efforts of those inside the prison system and outside to focus the offender’s sexual interest in other areas.

59 General deterrence is important too. At first blush it is somewhat surprising that young girls can apparently be easily persuaded to send indecent photos of themselves over the Internet. Yet the ease with which the offender was able to commit his offences is a reflection of the naivety and immaturity of his victims which comes about because of their youth. Many young people are targeted precisely because of such naivety and precisely because they are easy to manipulate.

60 The apparent ease with which crimes such as these can be committed requires a substantial component of general deterrence in any sentence that is imposed upon the offender. I say this despite the matters that I have referred to earlier concerning his mental state. The need for general deterrence is well expressed in the explanatory memorandum of the Crimes Legislation Amendment (Telecommunications Offences And Other Measures) Bill 2004.

“Unfortunately, adults are increasingly exploiting the anonymity of the Internet to forge relationships with children as a first step in luring them for sexual abuse.”

61 The offence of aggravated sexual assault under s 61J(1) of the Crimes Act has a maximum penalty of twenty years and a standard non-parole period of ten years. Of course the standard non-parole period is not of direct application because the offender pleaded guilty to that offence. But it remains as a guidepost which I must take into account in determining the appropriate sentence. I am satisfied that the objective gravity of that offence is below the middle of the range, taking into the age of the victim and the nature of the sexual intercourse that took place.

62 I should say something else about the application of the standard non-parole period where a judge is sentencing for multiple offences and applying the principle of totality, as I must. Even apart from the plea of guilty and the finding that the objective gravity of the offence is below the middle of the range, I would not have imposed the standard non-parole period in this case because of the need to structure the sentence appropriately, given in turn the need to partially accumulate of the sentences I will shortly impose.

63 Of course, it would be highly inappropriate for there not to be some measure of accumulation in the sentences to be imposed, but it would be equally inappropriate to fail to recognise that the sentence must reflect the offender’s overall criminality. As I said, the principle of totality applies and for that reason there will be partial accumulation of the sentences to reflect both the individual criminality involved in each offence as well as the overall criminality. However because of the principle of totality I suspect that many of the victims of the offender’s offending will regard the sentence relating to their matters as inadequate.

64 There has been some recent controversy regarding the granting of parole to serious offenders, this most recent controversy arising as a result of the possible release of one of the killers of Dr Victor Chang. It is therefore worth stating one fundamental matter: This offender is going to be released from gaol at some stage. It is far better that upon his release from custody he is supervised within the community for a significant period of time than it is if he is released without any supervision at all. In other words, it is better for the community that he is released on parole than if he is kept in custody for a longer period but then released without any of the support that the Probation and Parole Service can offer him. This is not as a means of extending leniency to the offender at all, but is because the community will be better off if the offender does not re-offend and the prospects of that coming about are enhanced by a significant period of time where the offender is in the community but on parole.

65 For those reasons in relation to the state offence there will be a finding of special circumstances and the overall ratio of non-parole period to head sentence will be the ratio usually applied to commonwealth matters despite the fact that one of the offences for which the offender is to be sentenced is a very serious offence against state law.

66 I sentence the offender as follows: for the offence of using a carriage service to procure SP for sexual activity, the offender is sentenced to imprisonment for a fixed term of two years to commence on 22 June 2007. For the offence of using carriage service to procure AC for sexual activity the offender is sentenced to imprisonment for a fixed term of two years to commence on 22 June 2008. For the offence of using a carriage service to procure BP for sexual activity the offender is sentenced to imprisonment for a fixed term of two years to commence on 22 June 2009. For the offence of using a carriage service to menace, harass or offend AC, the offender is sentenced to imprisonment. I set a fixed term of one year to commence on 22 June 2010.

67 For three offences of using a carriage service to have child pornography transmitted, the offender is sentenced to imprisonment. I set in each case a fixed term of one year to be served concurrently, each sentence to commence on 22 June 2011. For the offence of attempting to pervert the course of justice, taking into account the offence on the 16BA schedule, the offender is sentenced to imprisonment. I set a fixed term of two years to commence on 22 June 2011. Those sentences are all fixed terms because of the sentence I will now announce.

68 For the offence of aggravated sexual intercourse without consent, the offender is sentenced to imprisonment. I set a non-parole period of one year and a head sentence of four years to commence on 22 June 2012. This means the offender is eligible to be released to parole on 21 June 2013. The overall sentence is one of nine years imprisonment with a non-parole period of six years.

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