R v Donald

[2021] NSWDC 246

District Court

New South Wales

Medium Neutral Citation:

R v Donald [2021] NSWDC 246

Hearing dates:

28 May 2021
31 May 2021
1 June 2021
2 June 2021

Date of orders:

4 June 2021

Decision date:

04 June 2021

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

I make orders as follows:

1. The offender, Stanley Barclay Donald, is convicted of Count 1 (Sequence 4) on the indictment (12.2) dated 27 May 2021, being the offence of using a carriage service in a manner which was menacing, harassing or offensive.

2. The offender, Stanley Barclay Donald, is sentenced to a term of imprisonment for a period of 10 months commencing on 1 September 2020. That sentence will expire on 30 June 2021.

3. In accordance with s 20(1)(b) of the Crimes Act 1914 (Cth), I set a pre‑release period of 6 months imprisonment.

4. Having regard to the time already served in custody of 9 months and 2 days, I order the immediate release of the offender on his own recognizance, with a security of $200 but without surety, on the condition that he be of good behaviour for a period of 12 months from the date of these orders, namely until 3 June 2022.

5. I order that the Exhibits be returned to the parties forthwith and in Court.

Catchwords:

Criminal Law – Criminal Code Act 1995 (Cth) s 474.17(1) – Use Carriage Service in a way that a Reasonable Person would regard as Menacing, Harassing or Offensive – Sentencing – General Sentencing Principles

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A, 16E, 17A, 19AC, 20(1)(b)

Criminal Code Act 1995 (Cth), s 474.17(1)

Cases Cited:

Assafiri v R [2007] NSWCCA 159

R v Hastings & Frederickson (No 1) [2015] NSWDC 114

Xiao v R [2018] NSWCCA 2

Category:

Sentence

Parties:

Regina (Crown)

Stanley Barclay Donald (Offender)

Representation:

Ms A Brown, Solicitor Advocate (Crown)

Mr S Fraser of Counsel (Stanely Barclay Donald)

Ms T Forest, Solicitor (Crown)

Ms A Sarmed, Solicitor (Stanley Barclay Donald)

File Number(s):

2019/00049718

Publication restriction:

Non-publication of any matter which is likely to lead to the identification of the victim: s 578A Crimes Act 1900 (NSW).

Judgment on sentence

OFFENCES

1. The offender, Stanley Barclay Donald, was born in June 1994. He appears before me today for sentence having pleaded guilty to an offence that on 30 October 2016, at Mount Annan and elsewhere in the State of New South Wales, he used a carriage service in such a way that reasonable persons would regard as being menacing, harassing or offensive contrary to the provisions of s 474.17(1) of the Criminal Code Act 1995 (Cth).

2. The offence carries a maximum penalty of three years imprisonment.

FACTS

3. The following facts are taken from the Crown statement of facts which are agreed by the offender and I find them beyond reasonable doubt.

4. In November 2014, the victim, who I will refer to using the pseudonym “TB”, and the offender became friends on Facebook and started communicating with each other via Facebook messenger. TB and the offender exchanged sexually explicit photographs and videos via Facebook and Snapchat for a 12 month period. The offender became demanding if TB did not send pictures or videos when he asked or did not send the kind of picture or video that he requested.

5. On 30 October 2016, at approximately 10:23am, TB received a Facebook message from the offender stating that he was in Sydney and wanted to meet up with TB for sex. The offender resided in North Queensland. TB was not aware that the offender was coming to Sydney. An exchange of messages then occurred between the offender and TB where the offender threatened numerous times to post the naked pictures and videos that he had of TB online, including tagging her workplace.

6. Those messages were Annexure 1 to the Crown Statement of Facts. I do not consider it is necessary to recite all of the messages which the offender sent to the victim in these remarks, having regard to the agreed facts as to the nature of those messages and their impact on the victim. I note that some of the messages in the annexure, where they comprise of photographs or other private details of the victim have been redacted from the annexure, but there is a description of the redacted material.

7. The messages caused TB to be terrified and panicked, fearing that the pictures and videos would be posted online and sent to her place of work. Fearing that the offender would make good with his threats, she sent further sexually explicit images to the offender. As the offender concedes in his submissions, over a period of 82 minutes between 5:19pm and 6:41pm on that day, the offender sent multiple messages threatening TB despite the obvious distress it was causing the victim.

8. On 3 March 2017, TB disclosed the offence to a work friend at the Tharawal Aboriginal Corporation. On 10 March 2017, the matter was reported to Campbelltown Police Station.

9. On 5 March 2019, the offender was arrested at Cairns District Police Centre. On 6 March 2019, and extradition hearing was heard at Cairns courthouse and the police were successful in their extradition hearing and the offender was formally denied bail.

10. On 7 March 2019 the offender was transported to New South Wales and entered into custody. The offender remained in custody for nine months and two days before being released on bail.

PRINCIPLES

11. As this is a Commonwealth offence, the Court must have regard to the matters in s 16A of the Crimes Act 1914 (Cth). I shall return to those matters in a moment.

12. Whilst there is no requirement to determine where the offence lies relative to a notional low, mid or high range, it is necessary as part of the sentencing exercise to assess the objective seriousness of the offence.

Circumstances of the Messages

13. As was observed, the offender and the victim had, for some time, been engaged in what may be described as an online relationship which involved them each sending to the other sexually explicit messages, pictures and videos. This was at a time when the offender was in North Queensland and the victim in south western Sydney.

14. On the day of the offending, the offender was in Sydney. The victim was unaware of that fact until the offender messaged her asking her if she was interested in having sex (using neutral language). The victim was at her workplace when she received the offender’s message.

15. There was a slight delay in the victim responding to the offender (because I infer she was at work and not able to respond immediately) to which the offender unjustifiably took insult. Thus, as was accepted by the offender in his submissions, the messages he sent quickly escalated into threatening behaviour. He demanded further sexually explicit photos from the victim whilst at the same time arranging to meet for the purposes of having sex with the victim. I find beyond reasonable doubt that the threats were directed to her for the purposes of having her collect him and meet him for the purposes of her participating in sexual activity.

16. There is no doubt from the messages sent by the victim in response to the offender’s messages, that she regarded the threats he was making to post sexually explicit photos and videos she had sent him online or to send them to her workplace as serious. That was understandable as the offender had created a mock status page for Facebook with reference to those images and had sent the victim details of her workplace threatening to send those materials to the victim’s workplace.

17. The continued and escalating nature of the threats of dissemination of the material made by the offender led to no other conclusion that this is a very serious example of an offence of this nature. The distress suffered by the victim was evident from her replies, yet the offender persisted with his conduct.

18. It is submitted on behalf of the offender that a factor in his favour is that he eventually did desist when he sent a message at 6:41pm stating, with respect to his previous threatening messages, that he was “just fucking with” the victim. In other words, he did not really mean what he had threatened. I do not accept that this relieves the conduct to any great extent of the seriousness to which I otherwise attach to it. It seems to me equally open to find that at the time the offender sent this message, he had already achieved his aim by reason of his prior threatening conduct as the victim had agreed to meet him for the purposes of engaging in sexual activities. As such, he may not have felt the need to persist in continuing the threatening conduct.

19. Although, as I have said, I do not need to specifically find where the offending conduct would sit within a notional range, I regard the offending conduct as a very serious example of an offence of this type. I would, if required, find that the conduct fell somewhere just above the mid‑range of offending.

Matters To Be Taken Into Account

20. Section 16A of the Crimes Act 1914 (Cth) prescribes that the Court must impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence.

21. Section 16A(2) states that, in addition to any other matters I am required to take into account, I must take into account the various matters as are relevant or known to the Court. I will deal with each as relevant or known to the Court:

(a)   Nature and circumstances of the offence

22. I have dealt with this above.

(f)   The degree to which the offender has shown contrition for the offence

23. I have received a bundle of material from each of the Crown and the offender. The material tendered by the offender includes a letter from the offender dated 2 June 2021. That is after the date that the offender pleaded guilty to this offence on 18 May 2021. That letter speaks of the offender understanding that he expressed a lot of emotion and anger through social media which he now accepts can be harmful and damaging to others. He does not refer to this offence or to any specifics of his offending. He does not refer to any impact he may have had on the victim.

24. The Crown submits that, by this letter or otherwise, the offender has not shown contrition for his offending, nor shown any real insight to the impact that his threats had on the victim. I agree with this submission.

25. I am unable to find that the offender has shown any remorse or contrition for his offending. Counsel for the offender accepted this in submissions.

(g)   The fact of the offender pleading guilty, the timing of that plea and the degree to which that plea resulted in benefit to the community of the victim

26. As I have observed, the offender pleaded guilty on 18 May 2021. This was the first day of the trial. It is accepted that when sentencing a Federal offender, this court is to have regard to the utilitarian value of any plea of guilty and that if a discount is to be provided for the guilty plea, including its timing, the court should (although it is not bound to) specify the discount applied: Xiao v R [2018] NSWCCA 2.

27. In this case, due to the plea only having been made on the first day of the trial, I regard a discount in the order of 10% as appropriate.

(j) and (ja)   the deterrent effect on the person and others

28. The offender in his sentencing submissions concedes that the offence is serious and that the sentence imposed must reflect a measure of both specific and general deterrence. The offender also submits that the proliferation of social media as a means of communication has meant that offending of this type is relatively easy to commit. As such, the offender submits, that it is appropriate for the court to impose a sentence that makes clear that such offending will not be tolerated.

29. I accept these submissions. The sentence that I will impose aims to achieve the effect of general and specific deterrence reflecting the Court’s position that offences of this type, with the attendant distress and harm that they can cause, will be subject to significant penalties.

(k)   The need for adequate punishment

30. I think this issue has been adequately dealt with above in the sense that the matters I have recited so far have indicated the court’s dim view of the offender’s conduct and the requirement that he be appropriately and adequately punished for the conduct.

(m)   the character, antecedents, age, physical and mental condition of the offender (subjective circumstances)

31. The offender has placed before the court the following material:

1. A letter from the offender dated 2 June 2021;

2. A report from Hearing Australia dated 3 August 2020;

3. A letter from Victor Rodney, Psychologist, dated 29 April 2021;

4. A schedule of appointments attended by the offender at Bama house dated 29 April 2021;

5. A letter from Swaran Austin, Psychologist, dated 4 May 2021; and

6. Character references from:

1. Ms Sharlene Sagigi dated 29 April 2021;

2. Mikasa Donald dated 3 May 2021; and

3. Sally Donald dated 2 June 2021.

32. The medical material indicates that the offender has, since the age of five, suffered severe hearing loss and has been diagnosed with a condition known as auditory neuropathy or auditory dys‑synchrony. This condition affects a person’s ability to perceive speech particularly in the presence of ambient noise. The medical information indicates that the offender’s hearing has progressively deteriorated. It was apparent during the trial that the offender sometimes had difficulties in hearing matters even with the assistance of his hearing aids and the hearing loop.

33. The material indicates that the offender has been seeing clinical psychologists since January 2020, firstly Swaran Austin and then Victor Rodney. The first series of sessions with the psychologist ceased at the end of February 2020 due to the COVID‑19 outbreak and the offender was unable to engage in telephone counselling due to his hearing difficulties and bail restrictions which restricted his use of a smart phone.

34. The psychologists report that the offender had been traumatised by the lack of contact with his daughter from a previous relationship. The offender also had difficulties in custody, prior to being granted bail, when he was assaulted which left him feeling traumatised and being transferred to the protective section of prison. He was in fear of his safety and was prone to adverse thoughts which affected his mood and mental well-being. Mr Rodney stated that testing indicated that the offender shows systems consistent with post‑dramatic stress disorder from an undisclosed traumatic event.

35. The other material discloses that the offender was born on Thursday Island in the Torres Strait. His father was a Torres Strait Islander from Saibai Island and Papua New Guinea. The offender lived in the islands until they moved to Cairns in 2004, due to the offender’s hearing loss and issues related to schooling.

36. The offender’s mother details the difficulties that he encountered during his early years due to his hearing loss which “made it difficult for him to navigate the world, causing him to misread social situations and social cues and to become socially isolated at times.” She recites that the offender was the first child in Queensland to be diagnosed with the condition I’ve referred to and it was not recognised within the school system requiring support until the offender was in year 6. This delay in treatment caused issues with the offender who left school in year 11 to do various courses designed to help indigenous people access work in the tourist industry. Since then, the offender has undertaken multiple training courses and has worked as a cleaner and a groundsman and is looking for further full‑time work.

37. The offender is now in a relationship with Sharlene Sagigi, who has also provided a character reference to the Court. Ms Sagigi has a 12 year‑old daughter with whom the offender has developed a father role. It is apparent that at present this is a strong relationship which provides an anchor for the offender in his community.

38. The letters from the offender’s mother, Sally Donald, and his sister, Mikasa Donald, also give more detail about the trauma the offender has suffered as a result of being unable to see his daughter from a previous relationship. She was born in February 2014. Apparently, the offender has been denied a role in this child’s life by the grandparents of the child and this has had a lasting impact on him.

39. Each of the character references attest to the love and contribution the offender makes to his family including, as I’ve said, his current relationship with Ms Sagigi and her daughter.

40. There is no doubt in my mind that the offender has had a very difficult time at school and socially since he suffered his hearing loss at an early age. In my opinion, these subjective matters do have some mitigating effect on any sentence that the Court should impose. I note that the material indicates that the offender comes from a loving family and community environment, of which he has and hopes to play a significant role.

41. The material indicates that the offender has some prior criminal history both in New South Wales and Queensland. Whilst these are mostly of a minor nature and did not result in significant, if any penalties, it is of concern that the offender has shown some disregard for the laws of each of New South Wales and Queensland. That concern is perhaps alleviated, at least to some extent, by the fact that since the accused was released on bail, he has abided by the bail conditions and has not committed any offences. In any event, as was submitted by counsel for the offender, these are minor offences and in my opinion they do not significantly impact on the sentence I will impose.

(n)   The prospects of rehabilitation

42. As I observed above, and as was accepted by counsel for the offender, the offender has not shown any actual contrition or remorse for the offence. However, in his letter of 2 June 2021, the offender does show some insight into the dangers of the use of social media and the internet in the way that he did. Further, the offender has experienced the hardship and trauma of custody and this appears to have had an impact on him.

43. In the circumstances, particularly having regard to his strong family unit and the support it gives him, I am prepared to accept that the prospects of rehabilitation of the offender are good.

SYNTHESIS AND SENTENCE

44. The use of the carriage service by the offender on 30 October 2016 to send the vile and threatening messages he did to the victim for the purposes of obtaining sexual gratification from her, and his continuing to do so despite the evident fear and distress she was suffering as a result of those messages, makes his conduct, as I have said, a very serious example of an offence of this type. It is to be deplored. The Court passes no judgment on the use of social media platforms by consenting adults which may contain explicit sexual material. However, the use of carriage services to exploit and threaten a person who has otherwise willingly sent such material is abhorrent and must be punished.

45. There was some debate at the sentence hearing as to whether the conduct of the offender was menacing, harassing or offensive (or all three). I note the observations of Lakatos DCJ in R v Hastings & Frederickson (No 1) [2015] NSWDC 114 at [62] that, in his Honour’s opinion s 474.17 appears to indicate a descending order of gravity and conduct going from menacing to offensive. There is much to be said for his Honour’s analysis, however, for present purposes, I regard the use of the carriage service by the offender as being such that a reasonable person would regard at least as offensive. I do not need to consider if the conduct was menacing or harassing. The threats to use intimate images and videos sent to the offender by the victim in the manner he did and for the purpose he had was, I find, offensive. As I have said, I regard it as a serious example of an offence of this type.

46. In all of the circumstances, in order to ensure that the aims of specific and general deterrence are met and to ensure adequate punishment and having regard to the other matters identified above, including the offender’s subjective matters, I find that no other sentence other than a sentence of imprisonment is appropriate (see s 17A of the Crimes Act 1914 (Cth)).

44. As stated, the offender served 9 months and 2 days in custody before being released to bail. In accordance with s 16E of the Crimes Act 1914 (Cth), I am to apply the relevant laws of New South Wales with respect to the commencement of sentence and allowance for time spent in custody.

45. So much is accepted by the Crown, who submitted that in New South Wales the normal practice is to backdate the sentence to take into account the period of pre‑sentence custody, notwithstanding that the offender may have been on bail up until his sentence is pronounced: Assafiri v R [2007] NSWCCA 159.

46. By reason of s 19AC of the Crimes Act 1914 (Cth), where an offender is convicted and the term of imprisonment does not exceed 3 years, the Court must not impose a non‑parole period and must make a release recognizance order in respect of the sentence. There is an exception to this if the Court thinks that a release recognizance order is not appropriate, but in my opinion, that exception does not here apply.

47. The sentence of imprisonment I would have imposed was 12 months. With the 10% discount for the plea of guilty, this rounds down to 10 months. The pre‑release period I order is 6 months. I intend to backdate the sentence to commence on 1 September 2020 to take into account the time served by the offender in custody. I will also take that time into account for the purposes of the pre‑release period. The term of imprisonment will expire on 30 June 2021.

48. Having regard to the time already served and the pre‑release period I have determined, I intend to order the immediate release of the offender on his own recognizance (s 20(1)(b)) with security of $200 on the condition that he be of good behaviour for a period of 12 months from today’s date.

ORDERS

52. The orders I make are as follows:

1. The offender, Stanley Barclay Donald, is convicted of Count 1 (Sequence 4) on the indictment (12.2) dated 27 May 2021, being the offence of using a carriage service in a manner which was menacing, harassing or offensive.

2. The offender, Stanley Barclay Donald, is sentenced to a term of imprisonment for a period of 10 months commencing on 1 September 2020. That sentence will expire on 30 June 2021.

3. In accordance with s 20(1)(b) of the Crimes Act 1914 (Cth), I set a pre‑release period of 6 months imprisonment.

4. Having regard to the time already served in custody of 9 months and 2 days, I order the immediate release of the offender on his own recognizance, with a security of $200 but without surety, on the condition that he be of good behaviour for a period of 12 months from the date of these orders, namely until 3 June 2022.

5. I order that the Exhibits be returned to the parties forthwith and in Court.

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Decision last updated: 15 June 2021