R v Donaldson

[2023] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:

R v Donaldson [2023] NSWDC 337

Hearing dates:

10/3/23

Date of orders:

10/3/23

Decision date:

10 March 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

I allow a 25 percent discount for the plea of guilty.

Convicted and sentenced to a term of imprisonment for a period of 12 months. I order, however, that he be released forthwith, upon a Recognisance Release Order, after entering a self-recognisance in the amount of $500, subject to the following conditions:

1. Be of good behaviour for 3 years.

2. Be subject to the supervision of Community Corrections.

3. Obey the reasonable directions of Community Corrections.

4. Not travel interstate or overseas without the written permission of Community Corrections.

5. Undertake such treatment or other rehabilitation or counselling as is reasonably directed by Community Corrections.

I direct that offender report to the Penrith office of Community Corrections within 7 days.

I direct that a copy of the report of Istvan Schreiner dated 30/10/22 be sent to Community Corrections.

Catchwords:

Crime – Sentence – Commonwealth offences – Transmit child abuse material using a carriage service

Legislation Cited:

Commonwealth Criminal Code

Crimes Act 1914

Cases Cited:

R v Porte (2015) NSWCCA 174

Minehan v R (2010) NSWCCA 140

R v Hutchinson (2019) NSWCCA 152

R (Commonwealth) v Nafarette (2022) NSWDC 225

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Bruce Ian Donaldson - Offender

Representation:

Ms M Grawich for Crown
Mr B Walker for Offender

File Number(s):

22/77285

sentence

1. The offender, Mr Bruce Donaldson, has pleaded guilty to an offence under s 474.22(1) of the Commonwealth Criminal Code, being an offence that on 24 February 2022, he transmitted material using a carriage service, the material being child abuse material. The maximum penalty for that offence is 15 years' imprisonment, which is of course a guideline or yardstick to which I have had regard in the sentencing exercise.

2. He pleaded guilty at the earliest opportunity, and while there is no statutory defined discount for the value of a plea of a guilty in a Commonwealth matter, I intend to allow a discount of 25% by reason of the utilitarian value of that plea.

FACTS

3. The facts of the offence are agreed and in essence are as follows.

4. On 24 February 2022, investigators within the Child Abuse and Sex Crimes Squad of NSW Police commenced a covert online investigation using an assumed online identity of a 14-year-old female child. I will refer to the assumed online identity hereafter as the AOI.

5. About 6.30pm on that night the AOI logged into a chat room on a platform called ChatIW and was contacted by the offender who was using an account with the username DA, and which included the details, “53 years, Australia, New South Wales.” A conversation then occurred on that platform. Some of the conversation included abbreviations. However, to make more sense of the conversation I will ignore the abbreviations and refer to what appear to be the actual words that were intended to be used. The conversation went as follows:

“OFFENDER: What brings you here?

AOI: I don't know. Just talking to people. You?

OFFENDER: Meet new people, chat and see what happens. Whereabouts are you? Married, boyfriend, girlfriend, et cetera?

AOI: Never had a boyfriend. I don't think Mum would let me.

OFFENDER: Okay. How old are you?

AOI: I'm 14. What about you?

OFFENDER: Older than your parents. 54. Is that a problem? Care to tell me what you look like? What excites you? I do like to get good mental image. What are you wearing?

AOI: Just shorts and a shirt.

OFFENDER: Short shorts?

AOI: Normal, I think.

OFFENDER: Cool. Underwear?

AOI: Yeah. Of course, I'm wearing underwear, laugh out loud.

OFFENDER: No everyone does.”

6. Which I assume is meant to be, “Not everyone does.”

“OFFENDER: I'm not wearing any. Does that bother you? I live by myself, so no need some days. You should try it.

AOI: Cool. My mum would totally freak out.

OFFENDER: Don’t tell her. What style of shirt are you wearing?

AOI: Why is that?

OFFENDER: T-shirt? Just like to know, that is all. You could always slip your bra off because it would be hot and naughty.

AOI: And, once it is off, what would I do?

OFFENDER: Just chat to me. What would you like to do?

AOI: But I could talk to you with it on, silly.

OFFENDER: True but with it off you could tease your nipples a little.

AOI: What does that mean?

OFFENDER: You could play with your nipples. You could be gentle. Just run your finger over them a little, make them nice and hard. Don’t think you are dumb at all. Will not hurt at all, only hurt if you pinch and pull them. You have never played with your nipples before? Not weird. Nothing wrong with exciting yourself.”

7. That was the first part of the conversation which occurred over a period of not more than 23 minutes. The AOI then invited the offender to contact “her” on Skype and gave a contact name. After this the offender immediately contacted the AOI on that Skype platform. And, then from about 6.53pm until 7.41pm, which is a period of about 48 minutes, the following conversation took place:

“OFFENDER: Am I freaking you out? Just making sure. Don’t want you to feel uncomfortable.

AOI: No. You are being really nice, smiley emoji.

OFFENDER: Thanks. I like to be nice. So, have you?

AOI: Have I what?

OFFENDER: You have nice as well.

AOI: Nice what?

OFFENDER: Just a nice person. How are you feeling? Just in general, are you feeling good?

AOI: Yeah. Just a little tired from school.

OFFENDER: Okay. I get that. School can be hectic. You seem happy.

AOI: Yes. Because you are nice to talk to.

OFFENDER: Thank you. So are you. Would you have a pic to share?”

8. The AOI then shared an image.

“OFFENDER: Very hot.

AOI: Oh my God, no one has ever said that to me before.

OFFENDER: Really?

AOI: Yeah. All the boys in my year are mean.

OFFENDER: That’s because they are all idiots.”

9. Then the offender shared a selfie photograph of himself. It is not suggested that that was a sexually explicit photograph or anything of that kind.

“AOI: You look really nice, smiling emoji.

OFFENDER: Thanks. I just look like an old man. Is that your only pic? I just thought I would ask. Do you have a boyfriend?

AOI: Oh, my God. No. I've never had one.

OFFENDER: Okay. That is a shame. No boys you are interested in? I assume heaps of boys would be interested in you. You are very attractive. What are you doing?

AOI: I'm just laying on my bed, chatting to you.

OFFENDER: Nice. Your bed is a hot place to be. Be hot to see you lying on your bed, smiling emoji, mean I would like to see you lying on your bed, smiling emoji, hot young girl in short and shirt on her bed very hot image. You could always show me, smiling emoji. Take a pic of you lying on your bed.”

10. The AOI then sent the offender another image.

“OFFENDER: Mmm…very hot.

AOI: You seem really nice.

OFFENDER: Thanks. So do you.

AOI: I like talking to you.

OFFENDER: I am enjoying talking to you as well. You have got me all excited, horny excited.

AOI: What does that mean? Soz for all the questions. You must think I am some silly 14-year-old.

OFFENDER: Don’t think you are silly at all. You don’t know what horny means?

AOI: I have heard my friends say it but the horny and excited together is confusing.

OFFENDER: Confusing in what way?

AOI: I don't know what that means.

OFFENDER: Means it makes your nipples hard and your pussy wet. You have never experienced being horny? Have you ever masturbated? Okay. You are missing out. It feels so good. You should give a trial, give a try, give it a try, sorry, typo, give your clit a rub, one finger on your clit.

AOI: Like, right now?

OFFENDER: Why not? Under your shorts. Undo them. Now just rub your clit with a fingertip.

AOI: Where is it?

OFFENDER: You don’t know?”

11. That is the end of the conversations. The AOI then messaged the offender at 7.41pm saying, “Are you there?”, but received no further response from the offender.

12. The offender was arrested on 17 March 2022, in other words about three weeks later at his home in Katoomba and a warrant was executed at his premises. A number of devices were seized from the premises and were forensically analysed. However, nothing of relevance was found on them.

13. He participated in an interview with police after being cautioned and said that ChatIW is an adult chat site where you log in anonymously and it works on location and has both private messages and an open forum, although he did not use the open forum. After initially denying to police that he communicated sexually to anyone under the age of 18 years, the offender was shown printout copies of the chats on ChatIW and Skype and made full admissions to being the author of those communications.

14. In relation to the ChatIW communications he said that he remembered the chat and there are some things in retrospect that are inappropriate and that he thought that he was quite drunk at the time. In relation to the Skype communications the offender initially denied communicating with the AOI on Skype. However, after being shown printouts of communications he said he did recall parts of the communication. Those are the factual matters upon which he is to be sentenced.

OBJECTIVE SERIOUSNESS

15. As this is a Commonwealth offence, it is necessary that I address the various matters insofar as they are relevant in s 16A of the Crimes Act 1914.

16. Firstly in relation to the nature and circumstances of the offence. In assessing the nature and circumstances of the offence and its objective seriousness I first observe that the maximum penalty of 15 years' imprisonment is a clear indicator that the Parliament regards this type of offending as extremely serious.

17. However, while the maximum penalty is an important guidepost it is necessary for me to make an assessment of the objective seriousness of the particular example of the offence that has been committed by this offender. Some of the important factors to be taken into account in assessing the seriousness of offences involving the transmission and other involvement in child abuse material have been discussed in a number of cases including, R v Porte (2015) NSWCCA 174, Minehan v R (2010) NSWCCA 140 and R v Hutchinson (2019) NSWCCA 152.

18. The case law, including these and other cases, set out non-exhaustive lists of matters relevant to the assessment of objective seriousness. I do not intend to go through those lists seriatim, but I am well aware of them, and I have considered them in the light of the circumstances now before the Court.

19. In regard to the assessment of objective seriousness I note firstly that the child abuse material transmitted involved words, rather than images or videos which depicted and exploited real children.

20. Secondly, there is no suggestion that the Internet platform used by the offender to commence the communications was one that was normally or primarily used by children. In other words, there is no evidence that the offender intentionally targeted a chat site where children were likely to be found.

21. Thirdly, the offence took place on a single day over a period of only about one and a half hours.

22. Fourthly, while the language and suggestions made by the offender in the chat were obscene and likely to raise disgust in the community, they were towards the lower range in terms of graphic content when compared with many cases that come before the Court.

23. Fifthly, there was no suggestion by the offender of meeting up.

24. Sixthly, there was no planning or sophistication involved, such as the offender setting up false identities or trying to hide his location or pretending to be a much younger person.

25. Seventhly, there is no evidence that the offender was acting in cooperation with persons interested in this sort of material or any risk that others other than the AOI would be exposed to it.

26. The offending was engaged in for only one purpose and that was the offender’s own sexual gratification. I also take it into account that the person the offender was communicating with was not a real 14-year-old girl. However, that does not reduce the seriousness of the offence, but it would have been a worse offence had there been a real 14-year-old.

27. Having regard to these various matters I regard the offences as within the lower range of objective seriousness, and I note that the Crown conceded that this was so.

28. The communications with the AOI occurred over a period slightly in excess of an hour and a half. They were therefore brief and cannot be described as a course of conduct. The victim, if that is the right word, of the offence was a police officer and it cannot be realistically said that any injury, loss or damage resulted from this offence. Offences like this, however, have the potential to feed the market for child abuse material and so cannot be described as victimless.

29. Section 16A(2)(k) refers to the need to ensure that the person be adequately punished. This is, of course, a fundamental aspect of any sentencing exercise whether it be Commonwealth or State and one that I have addressed generally in these reasons for sentence.

SUBJECTIVE MATERIAL

30. Turning to the offender’s character, antecedents, age, means and physical or mental condition. He is now 57 years of age and was 56 at the time of the offence. He has no criminal history. His subjective case has been placed before the Court by means of some written material including a psychological report.

31. He reports a stable upbringing in a normal family, although he described it as somewhat emotionally cold and distant. He is in a supportive relationship with his current partner who has three children aged 6, 10 and 12. The offender has significant academic qualifications including in Science and a Masters degree in Education.

32. He has worked in a variety of positions including a management role as a motorcycle riding instructor, and up until his arrest in March 2022 he was teaching high school students in Physics, Science and Biology. He is, however, currently unemployed.

33. He has a history of anxiety and depression from around 2014 after separating with his former wife which coincides with a history of problematic alcohol use and he told the psychologist that he was affected by alcohol when he committed the offence, calling it a “One-off, drunken, stupid mistake.”

34. Testing carried out by the psychologist indicated that the offender had moderate to extreme levels of depression, mildly elevated anxiety and mild to severe stress levels. His reported alcohol use placed him within the high-risk category of alcohol related harm. He has also experienced intense and recurrent suicidal thoughts at a level where the psychologist says that the potential for suicide should be further evaluated.

35. The offender is supported by a volume of character references which speak about him in very positive terms. He also retains the support of his partner to whom he disclosed the nature of the offence at the earliest opportunity and who speaks about him and his interactions with her own children very positively.

36. The offender, who was accompanied to court today by his partner, gave evidence and was cross-examined. He said he is extremely ashamed and especially for the harm and stress he has caused to his partner. He said that as a result of being charged he has been suspended from teaching and has been told that his Working with Children Check has been revoked and that he has been placed on a “Never to be employed,” list in relation to future teaching roles. As a result of losing his employment he is in the process of selling his house as he has insufficient means to fund it and he intends to move in with his partner.

37. In the future he has plans to engage in some home improvement type projects with an aim to making money from them and/or perhaps to work in an adult teaching environment. He confirmed in evidence that he has completed a recovery course with Odyssey House, and he is doing that course again and finds it of assistance in learning to deal with stress without recourse to substances like alcohol.

38. He has also completed three sessions with a psychologist to assist in managing his anxiety and depression. The clinician says in her report that the offender has been participating well and is able to continue to attend for a total of up to 12 sessions.

REMORSE

39. Turning to matters of contrition, the psychologist noted that the offender appeared to show genuine remorse and said that at the time he did not think about how wrong his actions were. The psychologist concluded that the offender appeared to be ashamed of his conduct and made no effort to minimise its seriousness and did not attempt to attribute blame to anyone else or to other factors such as mental health or alcohol addiction.

40. This is contradicted, however, to some degree by the offender telling the psychologist that he failed to take notice of the user’s age and considered her to be, “another regular adult user,” and that it was not until she said she was 14 years old for the second time that he, “woke up,” to the situation and ended the conversation.

41. He was cross-examined about this assertion to the psychologist and his assertion that he only became, “more aware,” of the user’s age towards the end of the conversation. It was put to him that he was trying to minimise his criminality. However, the offender, as I understood his evidence, said that what he meant was that he became more aware of just how inappropriate his actions were and that he had then terminated the contact.

42. The assertion attributed to the offender in the psychological report is of course contradicted by the Agreed Facts, because almost immediately after the chat commenced the offender asked, “How old are you?”, to which the answer was, “I'm 14. What about you?”, after which the offender answered, “Older than your parents, 54.” In addition, shortly after this, the AOI referred to, “My mum,” but despite this the offender continued to speak to her in a sexual manner.

43. I therefore do not accept any suggestion that the offender was under some misapprehension about the age of the person he was communicating with or believed he was communicating with. I am satisfied beyond reasonable doubt that he believed her to be a 14-year-old almost from the beginning of the conversation.

44. Having said that, I do accept, given the abrupt end to the conversations, and the fact that it was not reopened, that the offender did, as he said in his oral evidence, come to the realisation during the communication that it was wrong and that he should end it. Although the offender’s assertions to the psychologist concerning his belief of the age diminishes the offender’s claims to being contrite to some degree, I do accept that the offender has shown some genuine remorse and contrition.

REHABILITATION

45. Turning to prospects of rehabilitation. The offender has no criminal history and apart from this offence has generally been a valuable and productive member of the community. It was put to the offender in cross‑examination that he committed the offence because he has a sexual interest in children. However, he denied this.

46. It was submitted by the Crown that I would not accept this answer and that I would find that the offender does have a sexual interest in children. Of course, if I was to accept that he had such an interest then this would need to be reflected in the sentence by reason of the need for, among other things, personal deterrence and the potential risk to the community.

47. Having considered the matter, I do not accept that the offender is a person who ordinarily has a sexual attraction or interest in children. Having regard to the very brief nature of the communications, the offender’s decision to voluntarily terminate them, the fact that nothing untoward was found on his electronic devices, and his overall background and history of normal peer relationships, this was, in my view, an offence that was committed opportunistically while the offender’s normal thinking and moral standards were diminished by alcohol and in circumstances where he had been isolated for some time due to the pandemic.

45. Of course, as has been said many a time by the Courts, the fact that an offence was committed under the effects of alcohol or a drug, does not mitigate an offence in any way. However, it is one of the matters that I have taken into account, in forming the conclusion that the offender is not ordinarily a person with any sexual interest in children.

46. I note that my conclusion in this regard is consistent with the unchallenged conclusion of the psychologist who said at para 4.5.2 of the report that the likelihood of reoffending is low and:

“Similarly, since no sexual paraphilias were noted it is apparent that Mr Donaldson’s offending behaviour was an isolated incident rather than representing a sexual interest.”

50. I accept that the offender’s experience of being arrested in the presence of his partner, in experiencing two days in custody, and then being on restrictive bail conditions, as well as the shame of this whole experience, has been a major blow to him and a real wake-up call. Having regard to all of these matters and the fact that he continues to have great support from friends and his partner, I am satisfied that his prospects of rehabilitation are good.

51. There is no doubt that a sentence of imprisonment would impact significantly on the offender’s partner and perhaps also on her children. Regrettably, it is the usual case that sentences of imprisonment have adverse and sometimes very serious effects on family members. However, this was not an aspect that featured to any significant extent in the submissions for the offender and is not a matter to which I attach great weight.

52. Paragraphs (j) and (ja) of s 16A(2) refer to the deterrent effect on the person and on other persons. It is well-established that general deterrence is an extremely important consideration with offences such as that before the Court. There is a great public interest in ensuring that persons caught engaging in indecent communications and other online activities targeting children are sent the message that such offences will be met with significant punishment.

53. This is particularly important given the perception among some people that their online activities are anonymous and unable to be traced or detected. This is, of course, no longer the case, as is demonstrated by the number of offences of this type that come before the Courts, offences that are often detected by means of proactive police operations designed to expose offenders.

54. As to the importance of personal deterrence, in my view it is unlikely that this offender will re-offend in a similar way given his experience of being exposed by police and being sentenced by this Court. This is consistent with the view of the psychologist. The lack of prior offences at his age is also a matter that supports a conclusion that he is unlikely to reoffend. While personal deterrence remains relevant in this case I do not consider it to be a leading factor.

55. Section 16A(2AAA) of the Crimes Act 1914 (Cth) provides that in determining sentence I have regard also to the objective of rehabilitating the offender including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options and/or to include within the length of any sentence sufficient time for the offender to undertake a rehabilitation program.

56. I have taken this into account but of course it does not remove the important requirements that the sentence be appropriate in its severity and reflect general and personal deterrence and the other important purposes of sentencing.

57. Section 17A of that same Act requires that the Court not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in the circumstances.

58. I am satisfied, especially given the importance of general deterrence in matters of this kind,, that this threshold has been crossed. I then refer to s 20(1)(b)(ii). That is a provision which says that when dealing with a Commonwealth child sex offence, an offender must be sentenced to a period of imprisonment calculated in accordance with s 19AF(1) unless the Court is satisfied that there are exceptional circumstances justifying another outcome such as immediate release upon giving security of the kind referred to in s 20(1)(a).

59. In R (Commonwealth) v Nafarette (2022) NSWDC 225, his Honour Buscombe DCJ of this Court said at para 89 that the word, “exceptional,” in his view meant out of the ordinary course or unusual or special or uncommon but that circumstances do not have to be unique, unprecedented or very rare but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. “A combination of factors,” his Honour said, “can amount to exceptional circumstances.” I quote those comments because I respectfully agree with them.

60. In this matter the offender has served a period of two days in custody before being granted bail. However, I have no doubt that this would have been a sobering and very disturbing experience for a man of the offender’s non‑criminal background and with his mental health issues.

61. I am satisfied that this, combined with the low level of objective seriousness, the immediate plea of guilty, his good prospects of rehabilitation, the low risk of reoffending, the extra-curial punishment already suffered, his recent efforts to commence treatment, and the importance of that treatment continuing, when taken together, amount to exceptional circumstances. I should note that in making reference to extra-curial punishment in that last comment I am referring to the offender’s loss of his employment and teaching career and likely loss of his house.

62. Mr Donaldson, if you just stand up and I will announce the sentence. I sentence you to a term of imprisonment for 12 months. I order, however, that you be released forthwith upon a Recognizance Release Order after entering into a self-recognizance in the amount of $500 which will be subject to the following conditions:

1. 1. That you be of good behaviour for a period of three years.

2. 2. That you be subject to the supervision of the NSW Department of Community Corrections.

3. 3. That you obey all reasonable directions of the NSW Department of Community Corrections.

4. 4. That you not travel interstate or overseas without the written permission of Community Corrections.

5. 5. That you undertake such treatment or other rehabilitation or counselling as is reasonably directed by Community Corrections.

63. Do you understand all those conditions? What that means is that I have imposed a period of imprisonment, but it is a period of imprisonment that will be served in this manner, namely that you be released immediately provided you enter into that Recognizance Release Order, but it will be subject to those various five conditions that I have set out.

64. I direct that the offender report to the Office of Community Corrections at Penrith within seven days. I further direct that a copy of the report of psychologist Istvan Schreiner dated 30 October 2022 be sent to the Penrith office of Community Corrections.

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Decision last updated: 28 August 2023