R v Dregmans

[2022] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:

R v Dregmans [2022] NSWDC 55

Hearing dates:

4 March 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 115 - 118

Catchwords:

SENTENCING – federal offence – possession of child abuse material – objective gravity – consideration of competing contentions as to the circumstances in which the offender obtained the material and the nature and extent of his interest in acquiring it – whether no sentence other than imprisonment appropriate – whether appropriate to make recognisance release order – whether, for the subject offence, the term of imprisonment may be served by order for intensive correction

Legislation Cited:

Crimes Act 1900 (NSW) s 91H

Crimes Act1914 (Cth) ss 16A, 17A, 20, 23ZD

Crimes (Sentencing Procedure) Act 1999 (NSW) s 67

Criminal Code Act 1995 (Cth) s 474.22A

Cases Cited:

Boulton v R (2014) 46 VR 308

Burton v R [2020] NSWCCA 127

Hili v R; Jones v R (2010) 242 CLR 520

R v De Leeuw [2015] NSWCCA 183

R v Hutchinson [2018] NSWCCA 152

R v Porte [2015] NSWCCA 174

R v Poynder [2007] NSWCCA 157

R v Wran [2019] NSWSC 1015

The Queen vOlbrich (1999) 199 CLR 270

Texts Cited:

Nil

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions
Mr S Dregmans (offender)

Representation:

Counsel:
Mr R El-Choufani for the offender

Solicitors:
Mr J Fennel for the Commonwealth
Hugo Law Group for the offender

File Number(s):

2021/00075656

Publication restriction:

Nil

sentencing remarks

1. Mr Shaun Daniel Dregmans, the offender, is to be sentenced following a plea of guilty to the offence that between 12 January 2021 and 17 March 2021, at Willoughby, he possessed or controlled child abuse material and that he used a carriage service to obtain or access that material, contrary to s 474.22A(1) of the Criminal Code.

2. This offence carries a maximum penalty of 15 years’ imprisonment.

3. The appropriate sentencing regime is Part 1B of the Crimes Act1914 (Cth).

4. The parties are agreed as to the following facts.

The nature and circumstances of the offence (s 16A(2)(a))

5. On 17 March 2021, Australian Federal Police attended the offender’s residence in Willoughby to execute a search warrant. The offender was present during the execution of that warrant and was warned of his rights. During the search, police located a Samsung Galaxy S8 mobile phone device. The offender provided the password.

6. During the execution of the warrant, he told police that he had met a person named ‘Ohrin’ on ‘Grindr’ and Ohrin had sent him a video depicting what appeared to be an underage boy giving a blowjob.

7. In their preliminary review of the phone, police discovered a WhatsApp conversation between the offender and the user Ohrin containing child abuse material. According to its internal Interpol Baseline Categorisation System, police designated the child abuse material as falling within two discrete categories consistent with the definition of child abuse material under the Crimes Act 1900 (NSW): category 1, a real pre-pubescent under 13 years of age, involved in or witnessing a sex act or material focussing/concentrating on the anal or genital region; and category 2, other illegal content concerning a child (under the age of 18).

8. There was an 11 second video on the Samsung Phone that fell into the first of these categories, depicting a pre-pubescent boy, between 10 and 12, separating his buttocks and exposing his anus and genitals to the camera. This video was transmitted to the offender’s phone at 10:07pm on 12 January 2021.

9. The WhatsApp conversation occurred prior to the transmission of this video. In the conversation, the offender relevantly expressed his sexual fantasies in graphic terms, summarised as ‘beast, anon, underage, public’, ‘showing my cock to cute boys … especially pools n beach change rooms’ and going to public pools and ‘seeing younger guys’ in their speedos whilst he was naked. It was this revelation that prompted Ohrin to send to the offender the 11 second video.

10. On 17 March 2021 police arrested the offender. He declined to participate in a digital record of interview.

11. On 29 June 2021, police conducted a further examination of the offender’s Samsung phone. They identified a Category 2 image. This was described as an image of a pubescent male, approximately 14 years old, sitting naked on a bedroom floor, with legs spread, exposing his penis and buttocks and with a mobile phone in his left hand (possibly taking a selfie).

The offender’s explanation for offending to his psychologist

12. The offender affirmed an affidavit in the sentencing proceeding, which was generally directed to his personal background. Part of this included reference to his being in a 4-year relationship with his partner. They had plans to get married and start a business together. Relevantly, in his affidavit, he offered no explanation for his offending.

13. However, he provided an explanation to a forensic psychologist, Ms Delphine Bostock, who prepared a report dated 17 February 2022. Ms Bostock has been a research, and eventually practising, psychologist since 2007. She completed a Master of Psychology in 2009. There is nothing specifically in her curriculum vitae that deals with expertise in treating sexual dysfunction or deviancy; although she stated in the body of her report that she had worked with sexual offenders. The offender saw Ms Bostock in December 2021. In all, he saw her on 3 occasions.

14. In his affidavit, the offender deposed that what he told Ms Bostock was correct. (He also affirmed the truth of what he told Ms Bostock when he later gave evidence). This was to the effect that he was a member of the social networking and online dating app ‘Grindr’, a platform commonly used for networking between gay men. The offender informed Ms Bostock that he had used the platform to form some platonic friendships, but also to engage in casual sexual relationships. In this context, he met Ohrin in a park and they had had sex. He later said in his evidence at the hearing that he thought Ohrin was a ‘nice guy’, and he was attracted to him. He wanted to see him again. On 12 January 2021, he engaged with Ohrin again in the WhatsApp conversation, which prompted Ohrin to send him the 11 second video to his Samsung phone.

15. Although he acknowledged that the conversation made it appear that he was interested in deviant or illicit sexual activity (with boys), when he spoke to Ms Bostock, he denied that he had such sexual interest. He was attracted to Ohrin and felt that sex talk of this kind might facilitate further sexual activity with him. He was really interested in sex with men of his own age. He had no interest in child pornography per se; nor did he seek or use child pornography.

16. The offender accepted that he received, viewed and had not (at the point of seizure) deleted the 11 second video. He had a poor recollection of the snap-shot image being on his phone, which was dated back to 2017.

The offender’s evidence at the sentencing hearing

17. The offender gave evidence on affirmation in the sentencing hearing and was cross-examined. In his evidence in chief, he was carefully led through the content of the conversation with Ohrin, and particularly what he had said to Ohrin. When directed to the part of the conversation (Agreed Fact 10(e)) that he liked “underage”, the offender explained that this had followed on from Ohrin’s earlier reference to (the latter’s) apparent sexual interest in children (Agreed Fact 10(d)). He said he wanted to similarly sound interested. He thought that this was something Ohrin was “in to”. The Crown put to him, and the offender denied, that he intended to convey to Ohrin that he was sexually interested in those things.

18. When directed to the conversation in Agreed Fact 10(g), after Ohrin had told the offender of Ohrin’s predilection for sexual activity to boys and the offender responded, “That’s so hot”, the offender stated that he said this to continue the conversation.

19. When directed to the part of the conversation (Agreed Fact 10(i)) where Ohrin was suggesting that they watch some ‘dark stuff’, and the offender asked him what sort of dark stuff, Ohrin replied “Cp…Young...Incest...”. In reply to ‘Cp’, the offender admitted to saying, “I was hoping you’d say that (sic)”. The offender gave evidence that he did not understand what Cp signified, although, with hindsight, he accepted that this may have been a reference to child pornography. The Crown put to him that he understood that Cp was a reference to child pornography. The offender said he did not understand it in this way at the time.

20. His Counsel then directed the offender to his comment (agreed fact 10(i)), that he “always wanted to” (watch material), the offender said that he was ‘going along with what’ Ohrin was saying. The offender was ‘not sure’ what Ohrin was talking about, but in hindsight, accepted that it may have been child pornography. The Crown asked the offender what it was that he wanted to watch when he said to Ohrin that he had “always wanted to watch” and suggested that he could only have been referring to ‘Cp’. The offender did not accept this: no one had ever sent child pornography to him before. It was also put to him that when he told Ohrin that he was “too scared to search it...” that was also a reference to child pornography. The offender did not accept that either.

21. The offender was then directed to his statement about wanting to go to a pool and seeing younger guys in their speedos and getting naked in front of them (Agreed Fact 10(j)), the offender said that this was a false statement made to Ohrin. He made it to facilitate a sexual encounter. The offender said that, on reflection, he felt repulsed and really disappointed in what he had said. He had nephews and nieces and was ashamed that he may have been privy to the exploitation of children. The facts that he agreed to were described by the offender as “not who I am.”

22. The offender said that he only saw the (2021) video once. When asked why he had not deleted it at the point when his phone was seized, he said that he forgot about it; that it had been ‘buried’ in other apps. He acknowledged that he should have reported the video to police. Further, he acknowledged that once the conversation veered to the topic of sexual interest in children, he should have ceased talking to Ohrin. Earlier, he said that he did not know how he got the (2017) screenshot on his phone. He said that he saw Ohrin again, after watching the video in January 2021. I infer that this was for the purpose of having another sexual encounter with Ohrin. But although he met Ohrin again, they did not have sex. He never spoke with Ohrin again.

23. The offender said that other than the 2017 screenshot and 2021 video, he had never been in possession of child abuse material.

24. It was generally put to the offender that the fact that he did not cease the conversation was a sign that he and Ohrin shared a mutual interest in child abuse material. The offender disputed this: he was sexually interested in Ohrin. It was also put to him that the reason he did not cease the conversation and delete the 2021 video was because he was interested in it. The offender repeated that he did not delete the video because he had forgotten about it. This was despite his acknowledgement that the video was ‘unusual’. He was more focussed on Ohrin and had ‘dropped the ball’.

Parties’ submissions regarding the offender’s state of mind

25. The offender’s Counsel submitted that the Court should accept the offender’s account of his state of mind: that he was only feigning interest in receiving and viewing child abuse material in order to pursue his real object, which was in having a further sexual encounter or encounters with Ohrin. His Counsel submitted that he had given this account consistently, not only to Ms Bostock, but also to his friends. The Court could have confidence in the credibility of the explanation: the offender made appropriate concessions. His Counsel submitted that weight should be given to Ms Bostock’s apparent acceptance (and reliance upon) the offender’s account. Although she did not descend to specifics about her experience with sex offenders with an interest in children, there was reason to think she had exposure to such offenders during the period of her service with Corrective Services NSW. At any rate, she was not required to attend for cross-examination and was not challenged upon the adequacy of her expertise. The Court should be slow to depart from her opinion without good reason. Counsel also acknowledged that although the content of the offender’s conversation with Ohrin did not make his account inherently persuasive, he was caught up, (perhaps preoccupied) with meeting Ohrin again and this motive clouded his capacity to rationally determine what he should have done.

26. If, however, his evidence of his state of mind was not accepted, on the probabilities, the Court could not conclude that he had a sexually deviant interest in children at the time of his possession of the material beyond reasonable doubt. He had a spotless history prior to the offending and had numerous testimonials to suggest he was of good character. More than this, the AFP had the opportunity for a thorough examination of his electronic devices and found no more than the two items of material that are the subject of the charge. Consistently with what the offender said, there was nothing to objectively show any more (electronic) contact with Ohrin after January and before the execution of the warrant in March 2021 and, more pertinently, no more child abuse material located after January 2021.

27. The Crown submitted that the Court should find that the offender had an actual sexual interest in the material and was not just feigning interest in it to facilitate his attraction towards Ohrin. This was not a case where people say something that they do not literally mean in furtherance of some other object. When evaluating his conversation with Ohrin, he should be taken at his word. The content of the words he used was consistent with his actions. He not only received the file, but he watched it as well. There were clearly ways other than discussion on the subject of child abuse material to ‘impress’ Ohrin if that was his objective. Even if at first, he did not anticipate that the conversation may head in the direction of discussion of child abuse material, he went on with it. Despite his evidence, he well knew what ‘Cp’ meant and could anticipate the likely nature of the video that he was sent.

28. The Crown did not say that the offender had any on-going or highly developed interest in acquiring child abuse material. The Crown did not contest that he only watched the video once. The Crown indicated that nothing could be made of the significance of the 2017 screenshot as so little was known about it.

Consideration of the offender’s state of mind

29. As noted, in the way the forensic contest evolved, the parties put before the Court something very similar to binary alternatives in explaining the offender’s state of mind: for the offender, he did not know that the nature of the material that he was acquiring was child abuse material. Alternatively, he had no interest in acquiring child abuse material in his possession for its own sake, to gratify a sexual interest in children, but consented to acquire it to impress him; with the ulterior motive of promoting his prospects of a further sexual encounter (or encounters) with him. For the Crown, it was said that he understood the nature of the material that he was acquiring and acquired it because he had a sexual interest in watching it, which, by extension, meant that he had, at least at the time of the offending, a (deviant) sexual interest in children.

30. This forensic contest matters in several potential respects: it relates to the gravity of the offending, the need for specific deterrence; the sincerity of his expressions of contrition and his rehabilitation prospects.

31. Under the Crimes Act1914 (Cth), a sentencing judge must sentence on the basis of facts that are “known to the Court” (s 16A(2)(a)). In my view, consistent with that provision, and basic principle in sentencing law (The Queen vOlbrich (1999) 199 CLR 270) if the offender’s explanation of his state of mind was accepted, it could mitigate the seriousness of the offending (and act to his benefit in other relevant ways). In this way, in my view, he bears the onus of proving the existence of the asserted matter on the probabilities. It is conceptually possible that he may not do so, but, by the same token, the Crown is not able to prove that he has an underlying sexual deviancy beyond reasonable doubt. The offender’s Counsel did not disagree with this view when it was raised with him. Mr Crown did not contend to the contrary in his address.

32. To reiterate, the offender raised two (negative) contentions: he did not understand the nature of the material that he was receiving; and he did not have any sexual interest in children but only agreed to receive the material from Ohrin to impress him.

33. The question of the offender’s state of mind was viewed primarily through the prism of the content of the offender’s conversation with Ohrin; although the Crown also emphasised what it contended was the consistency between the words he used in the conversation with Ohrin and his later conduct.

34. I found the offender’s evidence denying his appreciation of the nature of the material he received, as he was led through the conversation, to be singularly unconvincing. The two propositions that the offender raised were, in my view, irreconcilable. His evidence, in effect, that he did not know what Ohrin was talking about and urging upon him – his receipt of child pornography – cut across his position that he had gone along with the conversation and agreed to receive the material, since he thought this would enhance his prospects of another sexual encounter with Ohrin. Maintaining these positions undermined his credibility.

35. I agree with the Crown that when one reads the conversation in context, the subject matter was all about underage sexual activities. Hence the initial discussion of their own ages (Agreed Facts 10(a) and (c)) and Ohrin initiating discussion of his interest in underage sexual activity (Agreed Facts 10(b) and (d)). From there, the offender expressed his own interest in underage sex (Agreed Fact 10(g)). It may be accepted, as the Crown submitted, that there are other ways of conveying sexual attraction and interest in another person, but that does not negate the veracity of the offender’s point that at the time he was so infatuated in Ohrin that he would say what he thought could assist him to continue the conversation to promote his prospects of having another sexual encounter. It is fair to say that, to this point of the conversation, nothing had been said by the offender about any desire to receive and watch child abuse material and, further, there was nothing, objectively, in the offender’s past which would indicate to the reasonable observer that he had an interest in acquiring child abuse material.

36. That changed when Ohrin started talking about ‘dirt Dark web shit’. Ohrin was raising the prospect of sending through a certain kind of material and they discussed the nature of that material. I reject the offender’s evidence that he did not know at the time that ‘Cp’ was child pornography, but even if it was accepted, it was obvious from the other references to “young”, and in a context of their earlier discussion of underage sexual activity, that what Ohrin was foreshadowing sending to the offender was child abuse material. The offender’s denial that he did not know the nature of the material Ohrin was proposing to send him jars with other comments the offender made, such as he had never watched, but “always wanted to”, but had been “too scared” to watch it, and now “really wanna watch it with you”. Those comments indicated a clear comprehension, on the offender’s part, as to what Ohrin was referring to. His later comment, next in the sequence of the agreed facts (10(j)) about seeing “younger guys in their speedos” confirmed the offender’s full awareness of the nature of the material that Ohrin was talking about.

29. I find, therefore, and beyond reasonable doubt, that the offender anticipated the nature or character of the material that he expected to receive from Ohrin as being child abuse material.

30. It is another thing, however, to move from the acceptance of the offender’s anticipation of the nature of the material to finding an interest in receiving it, for its own sake or, put another way, that he agreed to receive the material for the purpose of gratifying a sexual interest in children.

31. Notwithstanding my rejection of his evidence disclaiming an awareness of the nature of the material he discussed with Ohrin, that is not fatal to my acceptance of the remaining part of his testimony (and affidavit evidence) that his words and actions were consistent with the desire to promote further sexual relations with Ohrin.

32. In my opinion, weight must be given to other matters, in the offender’s favour: his absence of any prior criminal history generally and the undisputed evidence about his good character. The Crown conceded that no significance could be vested in the circumstance of the 2017 screenshot being on his phone. Accordingly, in my view, that circumstance can be put aside when considering his motivations in 2021. Thirdly, as the offender’s Counsel indicated, there was nothing else on the phone to indicate any interest (in acquiring child abuse material generally or sexual interest in children generally) in the key period from 12 January 2021 until his phone was seized.

33. Against the offender, I take into account the circumstance that he did in fact watch the video. He did not tell Ohrin that it was unnecessary to pass on the material. He did not need to watch it and there was no suggestion that Ohrin would have known about it if he did not watch it. He could have pretended to Ohrin that he had watched it. The offender did not delete it immediately, despite his later declared revulsion at what he saw and he did not report the incident to the police (as he later declared he should have). These omissions could not be explained by any panicky reaction. The image remained stored on his phone for a substantial period.

34. I am unable to find, on the probabilities, that the offender agreed to receive the material only to impress Ohrin. By the same token, however, I am unable to accept, beyond reasonable doubt, the Crown’s contention that at the time of the offending, he consented to receiving the child abuse material because he was interested in the subject matter of the material and had a deviant sexual interest in children. The difficulty with accepting the contention is partly indicated by the hedged formulation suggested by Mr Crown: he disclaimed that such interest was ‘on-going’ or even ‘highly developed’. At its highest, although he consented to receive the material, the offender had a curiosity in inspecting the material. That does not prove that he had a deviant sexual interest in children. The Crown’s contention that he had a sexual interest in children not only does not reckon with the absence of any other indication in this offender’s life suggestive of such interest generally but more especially, any other indication on his phone or other gadgets. I am not satisfied beyond reasonable doubt that he acquired the child abuse material because he had a sexual interest in children.

35. To recapitulate, I find that the offender was aware of the nature of the material that Ohrin sent to him. I do not know what the fact of his possession said about his reason for obtaining it.

Assessing the objective gravity of the offending

44. In R v Hutchinson [2018] NSWCCA 152 RA Hulme J (Meagher JA and Button J agreeing) set out a non-exhaustive list of factors when assessing the objective gravity of the subject offending, which the Crown and the offender both addressed. Applying those factors, the offender submitted that:

• actual children were depicted;

• for the 2021 video (the category 1 image), one child was depicted, alone, but was not depicted as participating in any penetrative act and it was of relatively short length; and although well below 18, he was not the youngest of boys in like offences;

• for the 2017 image (the category 2 image), the child was depicted alone, pubescent and naked, but not participating in any sexual act;

• the number of images was limited to two, which was substantially lower than is usually the case in offending of this kind;

• no harm, or cruelty, was inflicted upon the children;

• the material had not been transmitted or disseminated, and there was no risk that it would get into the hands of vulnerable persons or persons susceptible to act out in the manner depicted;

• the Court should accept the offender’s evidence of feigning interest in child pornography. He did not obtain any (material) benefit in exchange for receiving it;

• there was nothing to suggest that the offender acted as part of a collaborative network of like-minded offenders;

• there was no planning, or sophistication, or attempts to conceal detection. There was very little to show the circumstance of his acquiring the 2017 screenshot. The acquisition of the 2021 video was unplanned.

45. Subject to the point of feigning interest in receiving the material, the Crown did not indicate any contrary position as to how these Hutchinson factors played out; other than to emphasise that the existence of the 2017 screenshot could not be disregarded. It was possible for the Crown to have brought a separate charge in relation to that material but, for convenience, the possession of that material was added to the possession of the 2021 material in a rolled-up charge. The Crown also emphasised the seriousness of what was depicted in the 2021 video.

46. In his written submissions, Counsel for the offender submitted that the offending fell towards the low end, it was not at the lowest end of the scale for objective seriousness for offences of this type. As I understood his submission, Counsel for the offender suggested that a positive acceptance of the offender’s explanation for how or why he received the child abuse material might even point to the offending being at the lowest end of the scale.

47. I generally accept the matters identified by Counsel for the offender and agree with his submission that the offending fell in the low end of the range of seriousness. Not having accepted fully the offenders evidence as to his state of mind, I do not accept that it was at the lowest end.

Course of conduct (s 16A(2(c))

48. The Crown noted that the video image had been left on the offender’s phone for a period of just over a month.

49. The Crown accepted that it could not prove, beyond reasonable doubt, the duration of the other (2017) image, in terms of when it came into the offender’s possession.

General deterrence (s 16A(2)(ja))

50. The Crown cited numerous authorities for its submission that for this offence, general deterrence is the primary sentencing consideration or, put another way, is the paramount consideration (including, without limitation, R v Porte [2015] NSWCCA 174 at [70] and R v De Leeuw [2015] NSWCCA 183 at [72c]). There is a multitude of reasons for that, including, that child pornography offending:

• facilitates the continued corruption, abuse and exploitation of children by creating a market (international and domestic) for child pornography;

• fuels the fantasies of child sexual assault offenders or stimulates persons with pederastic inclinations;

• may be used to ‘groom’ potential child assault victims;

• augments the trauma of children who live with the knowledge that images of their abuse exist in perpetuity;

• promotes a distorted (or more accurately perverted) view of reality where children are seen as appropriate sexual partners for adults; and

• is difficult to detect.

51. There is no dispute, and I find, that general deterrence is the most significant consideration in the sentencing exercise.

Adequate punishment (s 16A(2)(k))

52. There is no dispute that the maximum penalty indicates the gravity of the offence and provides a yardstick to a sentence, albeit that the appropriate sentence overall must take into account all other relevant matters (R v Poynder [2007] NSWCCA 157 at [52]).

The offender’s subjective case

Contrition (s 16A(2)(f))

53. In his affidavit, the offender took full responsibility for his offending, comprising his possession of the 2017 screenshot and the 11 second video. He deposed to realising that his conduct had perpetuated a cycle of abuse. On reflection, he felt ashamed and embarrassed about the words he had used in the conversation. His psychologist also referred to his expressing to her his acceptance of responsibility and opined that he had not minimised his offending. Two of his character referees, Ms Turner and Ms Goodall, also discerned his genuine remorse.

54. The offender’s guilty plea assists the offender in establishing remorse.

55. In his evidence at the sentencing hearing, he said he felt totally repulsed about his conduct. He acknowledged that by his offending, he had exploited minors and was conscious of the disjunction between the offending and his love for his nephews and nieces. His conduct, as indicated in the Agreed Facts that he signed, did not represent who he was.

56. Mr Crown did not challenge any of this when cross-examining the offender.

57. There was also reference in the material (including the Case Note report appended to the Sentencing Assessment Report) of suicidal ideation since the offending.

58. Although the offender accepted responsibility for having the child abuse material in his possession, his evidence stopped short of acknowledgment of his awareness that the material he agreed to receive was of that nature at the time. I find, that the offender is remorseful, but not fully so.

Guilty plea (s 16A(2)(g))

59. I have noted that the guilty plea assisted to establish a finding of contrition.

60. It also has substantial utilitarian value. Although (to his credit) the offender made prompt admissions, which virtually made inevitable his conviction, his plea was entered at the earliest reasonable opportunity and spared the need for public resources to be expended. I accept his Counsel’s submissions that a 25% discount on sentence is warranted. No lesser discount was suggested by the Crown.

Character, antecedents, age, physical and mental condition (s 16A(2)(m))

61. In his affidavit, the offender set out his background. He was aged 32 at the date of the offending. He was born and grew up in Brisbane. He had a conventional schooling after which he studied in business and hotel management for 4 years. He undertook an internship at the Novotel in Coffs Harbour, before having jobs, in sequence, at the Rydges and then the Meriton Hotel. Unfortunately, as is notorious, the Pandemic hit the hospitality industry hard in 2020 and the offender resigned in November 2020. He was looking for other corporate work (but not in hospitality) when he was apprehended for the current offending; although since his arrest he was acting as a delivery driver for a plant store.

62. Prior to the offending, he was in a committed relationship with his partner. One aspect of the offender’s regret is his concern that by his offending he may have ‘sabotaged’ that relationship.

Physical and mental health

63. In terms of his health, he was diagnosed with a stage 3 melanoma, but he is now in remission. A letter from Associate Professor Menzies, of the Melanoma Institute, date 26 November 2021 was in evidence. This indicated that the offender remains under surveillance for this condition, with scans scheduled every three months.

64. The offender informed Ms Bostock that he had had no adverse events in childhood, regular employment, an extensive network of family and friends and no history of mental health prior to the offending. Ms Bostock did not regard him as being at risk of sexual recidivism and did not regard him as having any past or current difficulties with his ability to self-regulate. Although, he had an extensive number of sexual relationships that was relatively normalised within the community in which he lives.

65. Ms Bostock referred to anxiety in the offender, but this was vague and did not suggest anything exceptional about this offender’s mental condition, in the sense of setting him apart from offenders in a comparable position (that is first time offenders of prior good character with no prior records) to him. In his affidavit, the offender said that since his arrest, he had struggled with the embarrassment and shame for which he was taking medication and had lost weight. I accept that he is anxious and that would likely be exacerbated by incarceration, but although I place some small weight on this matter, it is modest.

Lack of antecedents and good character

66. The offender has no prior criminal history.

67. The offender placed before the Court written testimonials as to his good character from Ms Kacie Turner, Ms Kate Goodall, Craig Jones and Conor Brown. Ms Turner was a university friend and roommate and Ms Goodall was another university friend. Their friendships with the offender both stretch back over 11 years. Both friends acknowledged their awareness of the admitted offending and both spoke highly of his personal qualities, including his honesty, and involvement in the community. Mr Jones and Mr Brown have had friendships of lesser duration with the offender. Both men spoke warmly of him.

68. I accept that prior to the subject offending, the offender was a man of good character and these circumstances, in combination, indicate that a measure of leniency should be extended and reduces the weight to the considerations of specific deterrence, retribution and the need for a sentence that protects the community. As explained earlier in these remarks, it also positively impacted upon the credibility of his explanation for his motive for engaging in the offending.

Co-operation with law enforcement officials (s 16A(2)(h))

69. The offender co-operated with police at the time when they executed the search warrant and made admissions, even before police examined his phone.

70. I have already taken into account the offender’s conduct during the execution of the search warrant when considering the matter of contrition. Whilst the making of admissions was to his credit, this was also a manifestation of his general honesty, that personal quality was also identified in my finding of his prior good character. The ‘co-operation’ must be seen in the context where it was inevitable that the content of his phone would reveal his offending even without the co-operation he rendered. This sentencing factor has little weight in the circumstances.

Specific deterrence (s 16A(2)(j))

71. As indicated above and below, I have also accepted that his subjective record, the extra-curial punishment he has suffered since the offending lends itself to a measure of leniency which reduces the force of this consideration.

72. Nonetheless, I am not persuaded that the consideration has no application. He chose to open a video which he anticipated was child abuse material. He did not delete it promptly when he had the opportunity to do so. Further, as indicated, he never acknowledged his awareness that the material he agreed to receive depicted child abuse.

Prospects of rehabilitation (ss 16A(2AA) and (2)(n))

73. As the Crown emphasised recent amendments to the Crime Act for a Commonwealth child sex offence treats rehabilitation as relevant to the length of any sentence or non-parole period; and also any conditions regarding treatment in any particular sentencing option. I accept the Crown’s submission that s 16A(2AA) does not, by its terms, mean that rehabilitation should result in a disproportionately more severe, or more lenient, sentence set against all other relevant considerations (Boulton v R (2014) 46 VR 308 at [72]).

74. Ms Bostock wrote very positively about the offender’s prospects. He had taken responsibility and expressed remorse for his offending, he adjusted his previous proclivity for casual sexual relationships and stopped using ‘Grindr’ to limit the opportunity where he might be placed in a similar position to that which had resulted in his offending; he was receptive to any necessary intervention; he had a positive network and prosocial and realistic goals for the future.

75. There was some argument in the sentencing hearing as to the extent to which the weight of Ms Bostock’s opinion might be weakened depending upon the Court’s assessment of the offender’s motive for acquiring the child abuse material. As indicated, I have been unable to make a positive finding on that particular matter, so it is effectively neutral. But more careful consideration of Ms Bostock’s opinion (at paragraphs 8-10 and 35) indicated that she did not, in terms, express any opinion herself about the veracity of the offender’s statements to her about his motive. The thrust of her report (paragraphs 12 – 34 and 36-39) did not depend upon acceptance of the offender’s explanation for his motive. It is true that her findings were underpinned by acceptance that the offender accepted responsibility for his offending and was remorseful for it and had a subjective view of the seriousness of what he did. But this was not inconsistent with the findings this Court makes and, to the extent that there were nuances based upon the Court’s incomplete acceptance of the offender’s account of his state of mind, it was open to the Crown to test Ms Bostock’s opinions, but it chose not to do so.

76. I accept therefore that full weight can and should be given to Ms Bostock’s views about the unlikelihood of his having any deviant sexual interest and the absence of any need for intervention to target sexual offending or general mental health.

77. As his Counsel also emphasised, the offender has a very good subjective case, including no prior criminal history, prior good character, attendance before Ms Bostock (and continued willingness for any recommended intervention) and a preparedness to engage with community supervision.

78. A sentencing assessment report prepared by the St Leonards Community Corrections Officer, dated 1 March 2022, featured an assessment of him as being at a T2/Low risk of reoffending according to the LSI-R scale. Based on CSNSW psychological assessment, he was assessed as being at a below average risk of sexual reoffending.

79. The Crown conceded that there was a low likelihood of the offender re-offending; or more specifically, acting on a sexual interest in children. However, there was a residual risk that the offender had in acting on such interest if the same situation occurred again, unless the offender received treatment for that interest.

80. I have rejected the premise underlying that stated concern. I do not find that the offender has a sexual interest in children. He could not therefore be at a risk of acting on it.

81. I agree with the submission of the offender’s Counsel that the offender’s rehabilitation prospects are good.

Other considerations

Extra-curial punishment

82. The offender placed before the Court two articles published in the Daily Telegraph on 18 and 19 March 2021. The subject matter of the articles was the ‘Operation Arkstone’ police raid. The headlines were, respectively, ‘Shaun Dregmans faces child abuse charges after Operation Arkstone raid’ and ‘Grant Harden hit with new charges as Shaun Dregmans is arrested.’ These headlines, and the general content of the articles, closely connected the arrest and charging of the offender with Mr Grant Harden, who was reportedly linked to a series of child abuse offences of a more serious character than the offence to which the offender has pleaded to. I agree with Counsel for the offender’s submission that an available imputation of the articles was that the offender was a member or participant in a child abuse network which had international dimensions.

83. In his affidavit, the offender referred to the consequences of the publication of newspaper articles after he was charged. He learnt that his younger brothers, friends and relatives had been contacted by people calling him a ‘sicko’. He had difficult conversations with his neighbour and mother trying to explain what had happened.

82. Separately, a person by the name of ‘Amanda Jones’ contacted a friend of the offender’s on Facebook and, in a post which highlighted a report of the offender’s arrest, the person asked, “Did you know your friend is a sicko”?

83. The offender referred to the effect on him of the newspaper articles and Facebook post in his affidavit, which I touched on earlier in the remarks concerning his contrition, where he referred to his anxiety and paranoia, loss of sleep, shame and embarrassment.

84. The parties agree that adversely inaccurate media reporting which humiliates an offender can constitute extra-curial punishment that sentencing judges may take into account. This factor tends to either reduce the requirement for specific deterrence and/or fulfils the consideration of retribution or denunciation; although the offender also submits that it is relevant to the question of the adequacy of punishment. I am not convinced that its relevance extends quite as far as the offender submits. Nevertheless, a prominent example cited by the parties was R v Wran [2019] NSWSC 1015.

85. The Crown accepts that a deterioration in the offender’s mental condition can be taken to relate to the media/social media reporting. I agree. There was a very clear connection in the news articles between the offender and a paedophile ring where there is nothing to suggest that the offender engaged in acts, for example, of the kind alleged against Mr Harden.

86. In the circumstances, given that the (limited) media reporting conflated the offence for which the offender has pleaded guilty with the other offending, I do not consider that this extra-curial punishment reduces such need for specific deterrence as exists. Rather, I consider that the extra-curial punishment weighs in favour of a reduced need for retribution.

87. I agree, however, that in view of the inherent nature of the offending, which was inherently likely to spark adverse media reporting and the limited number of newspaper reports, the weight to be given to this factor in mitigation is modest.

The Pandemic

90. The offender has at no time entered custody but has been on bail. He apprehends that if he is to serve a term of imprisonment under full-time custody, because of prevailing social distancing restrictions, he will suffer adversely because of his being deprived of family and contact visits.

91. At the conclusion of the hearing, Counsel for the offender stated, from the Bar Table, and with the concurrence of Mr Crown, that the Court could proceed on the basis that in person visits in jail currently remain suspended. So too are work and treatment programs. Further there is an initial period of up to 10 days’ isolation for new inmates.

92. I accept that for a very sociable man like the offender, with the anxiety that he has suffered since his arrest and charging, these restrictions are likely to weigh more heavily upon him than other offenders for this offending.

Comparable cases

93. It is well-established that for federal offences, in the interests of sentencing consistency, sentencing judges should have regard to sentencing practices for a subject offence across the country even if there is no requirement for numerical equivalence in the sentence to be imposed (Hili v R; Jones v R (2010) 242 CLR 520 at [48]-[49]).

94. I have taken into account the cases set out in Annexure B to the Crown’s written submissions, but I must confess to not finding them particularly illuminating and did not discern any obvious sentencing pattern. There were in fact different offences to the subject kind, including the category of the abusive material and the quantity of the images; and there were also the very different subjective circumstances affecting each offender. Perhaps the closest resemblance in the cases, only in terms of the factor of objective seriousness, was the case of Burton v R [2020] NSWCCA 127, although as Counsel for the offender submitted, the criminality of the offender in that case, involving as it did the creation and transmission of the child pornography was significantly augmented in comparison with this offender’s offending. For the material offence (which in that case was the offence contrary to s 91H(2) of the Crimes Act1900 (NSW), the sentence imposed was a fixed term of imprisonment of 10 months. The appeal against sentence was dismissed.

95. I have also taken into account the comparable cases set out in Annexure A to the offender’s written submissions. The case that bears some resemblance to the facts in this case are Fedele v The Queen (2015) 257 A Crim R 78. In that case even where the offender had more images of child pornography stored, over a longer period than this offender, his sentence of imprisonment was to be served by an intensive correction order.

Instinctive synthesis

96. I take into account the size of the maximum penalty.

97. Weighing all the considerations in s 16A of the Crimes Act1914 (Cth) adverted to, I find, in accordance with s 17A, that no sentence other than imprisonment is appropriate in all the circumstances of the case. The offender’s Counsel conceded that this threshold had been crossed.

98. The second main issue in dispute (other than the offender’s motive for offending) was whether it is appropriate that this term of imprisonment be served by an order for intensive correction or by immediate release on a recognisance release order.

Other ways of serving the term of imprisonment

Recognisance Release orders

99. By s 20(1)(b) of the Crimes Act1914 (Cth), the Court could make a recognisance release order permitting the offender’s immediate release. However, by s 20(1)(b)(ii) of the Crimes Act1914 (Cth), it is presumed that offenders sentenced for child sex offences (of which this is one) serve an actual period of imprisonment prior to being released on a recognisance order, for sentences less than 3 years unless there are ‘exceptional circumstances’. The expression ‘exceptional circumstances’ is not defined. Although the Crown referred to some authorities in general law, they are hardly controlling. The discretion in finding the presumption rebutted is fact dependent.

100. Counsel for the offender referred the Court to the sentencing remarks of Berman SC ADCJ in R v Pederson [2021] NSWDC 535 where, at [36]-[39], his Honour took what might be described as a global approach, weighing a combination of considerations such as the gravity of the offending, and the offender’s rehabilitation and the effects of incarceration upon him, rather than placing a focus upon any predominant individual factor. The Crown did not dispute that this approach was apposite, and I respectfully adopt it here.

101. Towards the end of the sentencing hearing, Counsel for the offender and Mr Crown agreed that if the Court found that ‘exceptional circumstances’ arose, by reason of s 20(1)(b)(iii), it would inevitably follow that the offender should be released immediately on a recognisance order.

102. The Crown contended that, if the Court was minded making a recognisance release order, then that should be based on the conditions in s 20(1B) of the Crimes Act1914 (Cth). Mr Crown also indicated that the Court might be inclined to impose a treatment condition to the effect that the offender continue to receive psychological therapy with Ms Bostock.

103. In this last respect, if the Court was minded making an order in these terms, I note that Ms Bostock considered that the offender may wish to seek ongoing counselling to deal with stress and anxiety; though saw no specific need for intervention targeted at preventing sexual offending.

Intensive correction order

104. There was debate between the parties as to whether service of the term of imprisonment by ICO is potentially available. The debate turns on the question whether the exclusion in s 67(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) for a ‘prescribed sexual offence’ applies. The offender says the exclusion is not engaged: the expression does not encompass an offence contrary to s 474.22A of the Criminal Code. The Crown contends that the exclusion is engaged:

105. The relevant parts of s 67 are as follows:

“(1) An intensive correction order must not be made in respect of a of imprisonment for any of the following offences--

(a) …..

(b) a prescribed sexual offence,

(c) ……

(d) ……

(e)…..

(f) …..

(g) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)-(f),

(h) …..

(2) For the purposes of this section--

"Commonwealth Criminal Code" means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.

…… 

"prescribed sexual offence" means--

(a) ……

(b) an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act1900 (NSW)

(c) ……

(d) ……

(e) an offence against section 71.8, 71.12, 271.4, 271.7, 272.8 (1) or (2), 272.9 (1) or (2), 272.10 (1), 272.11 (1), 272.12 (1) or (2), 272.13 (1) or (2), 272.14 (1), 272.15 (1), 272.18 (1), 272.19 (1), 272.20 (1) or (2), 273.5, 273.6, 273.7, 471.16 (1) or (2), 471.17 (1), 471.19 (1) or (2), 471.20 (1), 471.22 (1), 471.24, 471.25, 471.26, 474.19 (1), 474.20 (1), 474.22 (1), 474.23 (1), 474.24A (1), 474.25A (1) or (2), 474.25B (1), 474.26, 474.27 (1), (2) or (3), 474.27A of the Commonwealth Criminal Code, being an offence the victim of which was a person under the age of 16 years, or

(f) ….

(g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.

(3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection.

106. Both the Crown and the offender acknowledged that there was no binding authority as to whether an offence under s 474.22A(1) of the Criminal Code could fall within the exclusion in ss 67(1)(b) and 67(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) to preclude the possibility of an order being made whereby a term of imprisonment being served by intensive correction.

107. The Crown argued that the offending conduct here, though not the subject of a discrete charge, would have satisfied the content of an offence under s 91H of the Crimes Act1900 (NSW). That being so, for the purposes of ss 67(1)(b) and (g) and ss 67(2)(b) and s 67(2)(g), the offender had committed a prescribed sexual offence. This was so notwithstanding that although a range of offences under the Criminal Code were specifically earmarked as prescribed sexual offences under s 67(2)(e), that section did not include the subject offence, being s 474.22A(1) of the Criminal Code.

108. The offender’s Counsel argued that the exclusion in s 67(1)(b) should be construed narrowly and I understood him to submit that the preferable construction would involve treating the reference to the offence (here, s 91H of the Crimes Act 1900 (NSW)) as being one for which the offender is charged and is to be sentenced. This would encourage prosecution authorities, if they wanted to obtain the benefit of an exclusion of an intensive correction order as a sentencing option, to bring a charge in respect to which the exclusion would clearly apply. As it was in this case, the offender was not charged with any of the offences in s 67(2)(b) or s 67(2)(e).

Consideration of how the sentence of imprisonment should be served

109. I will first address the potential option of whether a recognisance release order should be made.

110. That question, in my view, can be quickly disposed of. The offender submits that exceptional circumstances are established here, because of the offender’s strong subjective case. The offender submits that the Court could find that there are exceptional circumstances distinguishing the offender’s case from the run of the mill case for an offence of the subject kind: his offending was objectively at the low end of the scale of seriousness; he presents otherwise as a person of good character with good prospects of rehabilitation and is at a low risk of re-offending; he has already suffered some extra-curial punishment flowing from adverse and inaccurate media reporting which meets any requirement for retribution.

111. Mr Crown conceded (although not entirely because of the reasons advanced on behalf of the offender) that it was open to the Court to find that ‘exceptional circumstances’, for the purposes of s 20(1)(b)(ii) of the Crimes Act1914 (Cth), arose.

112. I consider that the concession was properly made. I agree entirely with the offender’s submission.

113. Given that finding and given the peremptory terms of s 20(1)(b)(iii), it follows that a sentence of imprisonment is to be imposed, but the offender is to be released immediately. In addition to the standard statutory conditions, I consider it appropriate for the offender to have continued psychological support, to help him redress his anxiety and stress and to safeguard the low prospect that he might be inclined to re-offend.

114. This renders it unnecessary for the Court to enter what appears a vexed question as to the applicability of an Intensive Correction Order, although I note in passing, that some support for the Crown’s position appears in the analysis of Berman SC ADCJ in R v Pedersen [2021] NSWDC 535 (at [6]-[8] & [41]).

Order

115. Mr Dregmans, please stand.

116. You are convicted of the offence of having child sexual abuse material in your possession using a carriage service to obtain or access that material.

117. Taking your guilty plea into account you are sentenced to a term of imprisonment of two years. You are to be released immediately upon entering a recognisance of $5,000, without security, subject to your compliance with the following conditions:

1. You are to be of good behaviour for a period of 4 years.

2. You are to receive psychological counselling from Ms Delphine Bostock, or such other psychologist as nominated by her or your general practitioner, to provide such counselling or other treatment as the relevant psychologist considers is beneficial to you.

3. You are to be subject to the supervision of a probation officer and obey all reasonable directions of that officer.

4. You are not to travel interstate or overseas without the written permission of that probation officer.

5. In addition to (2), you must undertake such other treatment or rehabilitation programs that the probation officer reasonably directs.

6. You are to report to the St Leonards Community Corrections Office within 7 days.

118. By consent, the Court orders that upon the application of the Commonwealth Director of Public Prosecutions pursuant to s 23ZD of the Crimes Act1914 (Cth), the Samsung Galaxy S8 mobile phone (IMEI 355089086099094) is forfeited to the Commonwealth.

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Decision last updated: 11 March 2022