R v Ebejer

[2020] NSWDC 473

District Court

New South Wales

Medium Neutral Citation:

R v Ebejer [2020] NSWDC 473

Hearing dates:

15 June 2020

Decision date:

15 June 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Possess child abuse material: Community Correction Order for 3 years.

Use carriage service to groom person under 16 years for sex: a term of imprisonment of 1 year 6 months;

Use carriage service transmit/publish/promote child pornography: term of imprisonment of 9 months;

Total sentence 1 year 9 months - single recognizance immediate release s 20(1)(b) Crimes Act 1914.

For orders see [60]-[67]

Catchwords:

CRIME - sentencing for state offences and federal offence - possess child abuse material - use carriage service to procure person apparently under the age of 16 for sexual activity - use carriage service to transmit child pornography material.

SENTENCING – Relevant factors on sentencing – victim an Assumed Online Identity- young immature offender - undiagnosed mental conditions - strong prosocial support - whether custody necessary - general deterrence and community protection considered.

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application No. 1 (2002) 56 NSWLR

Blackman v Walters [2001] NSW CCA 121

Dennison v R [2011] NSWCCA 114

Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477

DM [2005] NSW CCA 181

DPP v Del la Rosa [2010] NSWCCA 194

Gajjar v R (2008) 192 A CR 76

Hearne v R (2001) 124 A Crim R 451

KT v R (2008) 182 A Crim R 571

Markarian v The Queen (2005) 228 CLR 357

Porte v R [2015] NSWCCA 174

R v Booth [2009] NSWCCA 89

R v Herring (1956) 73 WN (NSW) 203

R v Hutchinson [2018] NSWCCA 152

R v Lamella [2014] NSWCCA 122

R v Verdins (2007)16 VR 269 [2007] VSCA 102

Tector v R [2008] NSWCCA 151; 186 A Crim R 133

Texts Cited:

Sentencing for Child Pornography, K Warner (2010) 84 ALJ 384

Category:

Sentence

Parties:

Hayden Raymond Ebejer (the offender)
Director of Public Prosecutions (Cth)

Representation:

Counsel:
Mr S Russell for the offender
Ms D New for Director of Public Prosecutions (Cth)

Solicitors:
Brander Law for the offender

File Number(s):

2019/00007417

Judgment

1. On 8 September 2019 Hayden Ebejer was arrested and charged with a number of serious offences that commenced with his online contact with a person he presumed was a 14 year old girl. In fact, the person was an adult with an assumed online identity (AOI). Given the seriousness with which the community view exploitation of children by the use of carriage services (such as the internet) these subterfuges are deemed necessary to detect potential offenders and bringing them to justice, hopefully before a real child is exposed to their activities.

2. Ebejer accepted his guilt in relation to six offences; three are for sentence today. The others will be taken into account when I sentence for sequence 6, a s 474.26(1) Criminal Code Act 1995 (Cth) offence: s. 16BA of the Crimes Act 1914(Cth).

3. The three matters for sentence today are:

• Possess child abuse material (sequence 5); s 91H(2) Crimes Act 1900 (NSW), maximum penalty ten years imprisonment;

• Use carriage service to procure person apparently under the age of 16 for sexual activity (sequence 6); s 475.26(1) Criminal Code (Cth), maximum penalty 15 years imprisonment;

• Use carriage service to transmit child pornography material (sequence 9); s 474.19(1)(iii) Criminal Code (Cth), seven years imprisonment maximum penalty.

4. On the 16BA schedule are three further offences: use carriage service to transmit indecent material x 2 (sequence 4 & 7); s 474.27A Criminal Code (Cth), and use carriage service to transmit child pornography material (sequence 8); s 474.19(1)(iii) Criminal Code (Cth).

Agreed facts

5. Ebejer came under police investigation in November 2018. He was then 19 years old. On 26 November 2018, a police officer using an AOI sent Ebejer a ‘friend request’ on Facebook. The AOI said she was 14 years old. The two engaged in online conversations during which he sent her a series of questions using Facebook Messenger; ostensibly a game, but directed to generating sexual banter. He sent her an image of his erect penis (sequence 7).

6. He told me in evidence he used his own name, and although a request was made that they change their conversation medium to Snapchat, that request was never followed up with.

7. The following day there were further communications using Facebook Messenger. It appears the online contact was initiated by the AOI. Ebejer sent more questions to the person he presumed was a young girl. He asked ‘her’ for a date and sent ‘her’ another image of his penis and the request, “Do you want to do anything with it?”

8. On 29 November 2018 the offender and the AOI had a conversation via Skype chat. During the conversation he again suggested a date and that on that date do “adult stuff.” The AOI reminded Ebejer of ‘her’ age and lack of sexual experience.

9. On 3 December 2018 during a Skype chat with the AOI, Ebejer sent her a video clip of him masturbating to ejaculation (sequence 8). He again suggested the two meet up to talk and touch.

10. On 6 December 2018 during another Skype chat the offender sent the AOI seventeen (17) images involving Japanese Hentai cartoon pornography (sequence 4). Later in the conversation, Ebejer sent an image of his erect penis. He asked the AOI for photos of herself.

11. On 10 December 2018, they chatted on Skype and the conversation was steered to sexual banter followed by the offender suggesting they meet up for sex. Again he requested a nude photograph. Later he suggested and described to ‘her’ how she could masturbate. He sent a photo of a female masturbating.

12. Similar requests and instructions were made the following day, 11 December 2018. Ebejer asked ‘her’ to use the camera on her phone to show him what she was doing.

13. Ebejer was arrested on 8 January 2019. He made admissions which are, detailed in the agreed facts. He also admitted that there was child abuse material on his phone. Warrants were executed on his electronic devices. Child abuse material was found. Ebejer said his particular interest was in children aged 14, 15 or older.

14. The items seized fell into both Interpol Baseline Categories 1 and category 2. Baseline category 1 involves images depicting a real prepubescent child involved in a sex act, witnessing a sex act or the material is focussed on the anal or genital region of the child. Baseline category 2 involves other child abuse material illegal in NSW.

15. The material was found on five devices. It included both still images and videos. In total there were 292 items in Category 1 and 112 items in Category 2. Mr Russell, who appears for the offender, suggested that relatively this was quite a low number of images as it is not uncommon as sometimes many thousands of images are found. The Commonwealth Director of Public Prosecutions (CDPP) in their written submissions, MFI 1, acknowledges there were a “limited number of images, some of which were duplicated across the devices:” [43].

16. Forensic examination of the offender’s mobile phone also showed that he shared a photograph from a 14 year old girl who had sent him nude pictures of herself. There were other images purporting to be of a 13 year old girl: the schedule carriage service offences.

17. There is a significant public interest in protecting children from conduct that inappropriately sexualises them before they are old enough to protect themselves or respond, appropriately or in their own interests. This justifies targeting adult offenders who exploit the internet to win the trust of a child as a first step towards future sexual abuse of that child: Tector v R [2008] NSWCCA 151; 186 A Crim R 133 at [85].

18. That the AOI was not a real 14 year old girl is relevant to my assessment of the objective seriousness of the offence as the impact on an actual child would have made the offence so much worse. Here no child was harmed. It is also of note that Ebejer was contacted by the AOI who sent the initial “friend request”, and later request to continue the conversation. That said, as Ebejer thought he was communicating with a child, something that the AOI made repeatedly clear, his personal moral culpability is no less because an AOI was involved: Gajjar v R (2008) 192 A CR 76.

19. Ebejer’s actions were gross and criminally inappropriate. His actions were directed solely to his own sexual gratification. He knew the age of the “girl” involved and their age disparity. He was then 19. He knew what he was doing was wrong. He persisted regardless. This persistence indicates some premeditation. There can be intrinsic harm caused by indecent communications with children and the profound effect upon victims should not be ignored. Yet it seems Ebejer’s lack of experience of real human interaction meant he regarded such activity as normal. His actions were not restricted to this online activity. He suggested he and his victim meet up.

20. The section only applies to adults and requires the offender to be over 18. It does not apply to children. The offender of course was 19 and accordingly an adult at law. He had crossed that legislative mark but his age relative to the offence parameters is relevant, as is the fact that it was the AOI who initiated the contact, and as all the evidence reveals that contact was with a socially awkward and immature young adult.

Objective seriousness - child abuse material

21. The problem of child pornography is an international one. Given the prevalence and readily available pornographic material involving children on the internet general deterrence, that is punishment in order to a send a message to others of the seriousness of their crime, is a paramount consideration. Those who make up a market for such products cannot escape responsibility for the exploitation of children involved: Porte v R [2015] NSWCCA 174: Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477.

22. Here relevantly, I note that most of the images were category 1 but a significant number fell into category 2. I note some were duplicates and accept by comparison with many such matters there were a “limited” number of images.

23. I do not have any greater information as to the nature and content of the material or the age of the children or the gravity of the sexual activity portrayed. For that, I am grateful to those who prepared this matter for the CDPP It is not suggested that the offender was responsible for bringing the material into existence. There is no suggestion that this crime involved any significant planning, organisation or sophistication: R v Hutchinson [2018] NSWCCA 152.

24. I have to consider the offence however in this context, and I quote from Professor Kate Warner’s (as her Excellency then was) article Sentencing for Child Pornography (2010) 84 ALJ 384 at [385]:

“The damage done to children so abused can and undoubtedly often is profound. In addition to the physical and psychological harm from the abuse itself the New South Wales Sentencing Council has explained that harm may also result from the knowledge as they grow older that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable.”

25. In short summary, so that all can understand; possession of child pornography is a callous and predatory crime. These images items cannot come into existence without the exploitation and abuse of children somewhere in the world. Every occasion on which an internet child pornography site is accessed or where such material is shared, by any means at all, provides further encouragement to expand these activities by those who create and purvey the material: R v Booth [2009] NSWCCA 89 at [39]-[44]. It is to be condemned.

Objective seriousness - Send indecent material

26. Three images were sent. Actual children or a child was involved. The child appears to be 13 or 14. It appears children had been induced to send the messages or felt it was appropriate to send images to Ebejer. No grave sexual activity was portrayed. But he then, and this is the gravamen of the offence for sentence, shared the material and it brings into play the other matters I discussed above. Again, it is an example of callous exploitation of a child or children.

Guilty pleas

27. Guilty pleas were entered in the Local Court, facilitating the course of justice. The early plea had utilitarian value, justifying in all the circumstances a 25% reduction in the otherwise appropriate sentences. The pleas are an indication of personal remorse and contrition, which go favourably to my assessment of the offender’s prospects for rehabilitation. I note the offender was cooperative.

Subjective case

28. Ebejer gave evidence. I also received as a Crown exhibit a Sentence Assessment Report of Ms Blazic and an accompanying report from a Corrective Services New South Wales psychologist, Ms Wright. I received a report from Dr Adams, psychiatrist and many personal references.

29. Ebejer affirmed the history given to Dr Adams and those who prepared the Sentencing Assessment Report. He told me how he came to contact the AOI, and how he came to have the material on his devices.

30. Ebejer said he used his own name in his communication. He told me about the impact of his strict bail and how his life had changed. When arrested he was spending almost all his spare time on the internet after his arrest he followed other pursuits.

31. The evidence adhered to and picked up the material set out in the references and the report of Dr Adams and the Sentence Assessment Report. The references indicate that the offender, as is reflected in his otherwise clear criminal record, comes from a family with strong prosocial attitudes. All of the referees speak of their distress at finding out the crimes that Ebejer had committed. All of them speak of their continued support for him, their understanding of the number of problems that have now been drawn to their attention following his arrest, particularly in relation to his mental condition, and now diagnosed disorders.

32. His father gave evidence. His father also wrote a letter to me which clearly indicates that the family are all now coming to learn and appreciate the many difficulties that Ebejer has faced during his life. They should not blame themselves. Every offender, as judges well know, is different. Every offender requires separate consideration. But it has to be informed consideration. It is clear that throughout his life his parents have done what they could, and they are now better informed and better equipped to provide assistance, as are, as is obvious from the other references, his friends and family. They have rallied round and that prosocial support is a significant factor in my conclusion that with that support and other supports it is unlikely that Ebejer will offend again.

33. Dr Adams sets out in more detail the family history. The offender grew up locally. He has always had strong support. He reports bullying at school. All the evidence indicates that as a child he was awkward and failed to pick up social cues, and he struggled both academically and in sports. He was shy and preferred solitary activities. It appears that as he got older his mood deteriorated.

34. Ebejer is now an apprentice fitter and turner. He earns an income. He works three days a week and attends TAFE. Subject to the present COVID-19 restrictions he would like to continue to attend TAFE. He lives with his parents and pays them board. He has been on very strict bail conditions since he was arrested. He has never been in trouble with the law before.

35. He is now 21 years old. At the time of the offending he was 18 or 19. He told police on arrest how lonely and desperate he felt and how that he knew what he was doing was wrong and inappropriate. He told police and others that he had no prosocial relationships outside his family. He has never had a relationship with a member of the opposite sex other than by online activity, and it would appear most of that with the AOI.

36. Most of his contact with others was with those who shares his interests in online fantasy gaming. This was the one thing that he was able to say he was good at. Those online friends, he told me, became his family, and he reports a significant impact of the loss of that online family. He reported to Dr Adams feeling depressed and suicidal. He has poor social skills and a poor understanding of social norms, particularly relating to others. But even with all the matters that I can and will take into account, there is simply nothing normal about sending a 14 year old a video of yourself masturbating.

37. He appears to have fully accepted responsibility for his offending. He made immediate admissions and volunteered his phone to police. He has engaged with a psychologist. Corrective Services New South Wales initially assessed him at low risk on one measure, but other measures put him in the above average range. Without a full dynamic assessment that category remains until a further assessment is carried out by Community Corrections.

38. A supervision plan can be put in place. He is eligible for community service, although I note that those community service obligations are presently suspended.

39. A referral to the Surry Hills Forensic Psychology Service was recommended. But as Ms Day, who appears for the Director CDPP, pointed out, there are some concerns that people he might meet there would not share his general prosocial attitudes and it may be better to continue with the present regime of treatment.

40. Importantly, he was recently diagnosed with Autism Spectrum disorder and a major depressive disorder. Those undiagnosed conditions are significant in this case.

41. Dr Adams sets out a history that is uncontroversial and accords with what is known by the Court. Ebejer appears to have been frank and open with all those he has been dealing with and I can, I believe, accept expert opinions based on testing and expert experience because they were matched against verifiable parameters designed to validate them.

42. Dr Adams note the history, he notes Ebejer shows classic symptoms of major depression which would have impaired his decision making and judgment. He is now responding to medication and regular psychological therapy under a mental health care plan. This in turn has led him to a greater understanding and insight into his offending behaviour.

43. Dr Adams is also of the opinion he suffers from Autism Spectrum disorder impairing his social and interpersonal behaviour and psychosexual difficulties. Dr Adams considered but rejected a diagnosis of paedophilic or paraphilic disorder. He recommends further assessment and continuation of psychological treatment targeted at his understanding of his offending behaviour. He notes the conditions suffered would make gaol so much harder than it would for someone without his presenting conditions, a recommendation statement which accords with my experience of dealing with those in custody.

Youth

44. The offender was young and immature at the time. He is still young and immature. There is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. The principal underpinning the practice lies in the recognition of immaturity: KT v R (2008) 182 A Crim R 571; DM [2005] NSW CCA 181; Hearne v R (2001) 124 A Crim R 451.

Undiagnosed mental conditions

45. Where an offender is suffering from an illness or condition the Court recognises that in some instances that can reduce their moral culpability for the offending conduct as distinct from their legal responsibility which relates more to the objective circumstance of their offence. Such conditions can make denunciation less relevant to the imposition of the sentence and bear on the kind of sentence and how it is to be served and the conditions upon which it is to be served.

45. Specific deterrence is still important in such cases but it can be moderated as a sentencing principle. Here a custodial sentence would weigh more heavily on the offender than it would a person of normal health. And could have a significant adverse effect on the offender’s mental health. R v Verdins (2007)16 VR 269 [2007] VSCA 102; DPP v Del la Rosa [2010] NSWCCA 194.

Guidance

47. While every offence and every offender requires individualised treatment, courts must in the exercise of their discretion take guidance from a number of sources. They include here importantly the maximum penalty, decisions of other courts and of course the purposes of sentencing here set out in both s 3A Crimes (Sentencing Procedure) Act (NSW) and s 16A Crimes Act 1914 (Cth)

48. Courts have to include and consider the need for deterrence for this offender, and particularly as I have already alluded to deterrence of others from committing serious crimes. Proper recognition has to be done to any harm done to the community. The guidance offered by maximum penalties is a significant consideration in such cases.

49. Just returning briefly to general deterrence, one of the reasons why police use AOIs is the difficulty of detecting the type of offending, and it is clear in this case that there was, at least so far as one of the counts concerned, images sent to the offender from a child which were later shared. Anyone tempted to offend as Ebejer did must understand the consequences of their behaviour. Nothing he did was innocent or playful. Ultimately, it was exploitative and potentially harmful. Every offence that involves sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity of children because of the physical and psychological harm that is taken to be caused by exposure to premature sexual activity.

50. I have to consider whether he is likely to reoffend, and with support I believe that is unlikely. I take into account the following matters.

1. There was an early plea of guilty, but that was in the face of a strong prosecution case.

2. Ebejer has no prior convictions, and while offences can and often are such as this committed by persons of good character, and generally courts give less weight to prior good character, I cannot and do not ignore it. Past behaviour is also an indication of future behaviour and he is entitled to have his good character taken into account.

3. Although he had online names he used his own account and did not appear to be disguising his identity.

4. He has strong family support.

5. His bail conditions and subsequent conditions that may be placed upon him will mean that his conviction makes attendance and participation in TAFE activities and subsequent employment much more difficult.

6. Steps have been taken with respect to counselling and treatment which will aid his rehabilitation.

7. His prospects seem more than reasonable.

8. The Corrective Services psychologist notes that custodial sex offender programs would not simply be available to him given the times necessary. He could if deemed necessary engage in, although it may not be necessary, a community based psychology treatment program. Importantly private treatment is available and underway and he is working in the community.

Submissions

51. I have had regard to the written and oral submissions by Ms New and Mr Russell who appears for the offender. The initial Commonwealth Director of Public Prosecutions’ position was moderated fairly when all of the material otherwise unavailable to them was presented today. They stress importantly the seriousness of this offence, but leave to me the appropriate disposition of the matter.

52. Where, as here, a short minimum term in custody is a real option the Court has to balance two factors: one is general deterrence the need to make the point that gaol is generally required for these matters, the second is the potential harm to the community and the offender caused by short gaol sentences.

53. Mr Russell for the offender stresses the offender’s immaturity. Ebejer was at the relevant time and still is a person whose maturity is closer to the age of his ostensible victim than a mature 19 year old. He lacked any sophistication when dealing with the AOI. Mr Russell urged on me understanding for a young man whose prospects given family support were excellent if given help. He asked that I consider the present COVID-19 situation in gaols, and I have spoken about that with the parties.

Structure

Sentencing for multiple federal and State offences

54. I have to consider each of the three matters for sentence; one State and two Federal. I am assisted as always by the helpful annexure setting out federal sentencing law and principles provided with the CDPP written submissions. While there are multiple offences, some have common features but they are separate and distinct. There was some repetition and progression in their seriousness. The total sentence should reflect the overall criminality of Ebejer’s course of conduct, but because there are three offences State and Federal it enables me to structure a sentence, which I believe will be both in the offender’s and the community’s interest.

55. I must take into account the matters on the schedule when determining the appropriate penalty for the offence to which they relate: Attorney General’s Application No. 1 (2002) 56 NSWLR; Dennison v R [2011] NSWCCA 114 and R v Lamella [2014] NSWCCA 122. I do not impose sentences for those offences but they do allow me to increase the sentence that would otherwise be appropriate. I do so applying the approach suggested by Justice McHugh in Markarian v The Queen (2005) 228 CLR 357 to recognise the need for both personal deterrence and retribution for the crime for sentence Attorney General’s Application No. 1 at [39] – [42].

Synthesis

56. My duty as sentencing judge requires I attempt to translate the complexity of the human condition and human behaviour to units of punishment: Weininger v The Queen (2003) 212 CLR 629 at [24]. Given Ebejer’s age and immaturity a sentence to be served by way of an Intensive Corrections Order might have been appropriate. But this disposition is not available given the nature of the offending.

57. I have to fix the appropriate sentences given his circumstances and the crime. The sentences must adequately reflect and have some proportion to what was done - the objective seriousness of the offence. I should take some guidance from the maximum penalties to which I have already referred. The proper sentence ultimately marks the Court’s view of the seriousness of what was done and should let others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. Putting it bluntly, this was not normal behaviour, it was seriously criminal behaviour.

58. The sentences should ultimately aim for community protections. That requires adequate punishment. But community protection is not necessary achieved simply by locking someone up. Ebejer is young, immature; too young and immature to be made an example of by imposing a retributive sentence. This is particularly so given his recently diagnosed conditions and strong prosocial support and the fact that he is working.

59. Custodial sentences will often be required for each of the cases for sentence. But they are not always required. The protection of the community is contributed to by the successful rehabilitation of others and their changing their behaviour. This aspect of sentencing should never be lost sight of. It assumes particular importance in cases involving first offenders and others such as Ebejer who have not developed settled criminal habits: Blackman v Walters [2001] NSW CCA 121.

Orders

60. In relation to each of the three matters you are convicted.

NSW Offence

61. In relation to the possess child abuse material (sequence 5), there will be a Community Corrections Order for a period of three years from today’s date. It is a condition of that order that you:

1. Accept the supervision and direction of Community Services New South Wales for as long as they deem necessary.

2. You are to report to the Wollongong office within seven days. You are to be of good behaviour.

3. You are to obey all directions of that service including participation in any treatment plan in relation to psychological programs and if necessary attendance for a comprehensive risk analysis.

Commonwealth offences

62. In relation to the use carriage service to procure person apparently under the age of 16 for sexual activity (sequence 6), and taking into account matters on the 16BA schedule I deal with the matter pursuant to s 20(1)(b). You are convicted and sentenced to a term of imprisonment of one year and six months. That sentence is to commence on 15 June 2020.

63. In relation to the use carriage service to transmit child pornography material (sequence 9) you are convicted and sentenced to a term of imprisonment of nine months. That sentence is to commence on 14 June 2021.

64. It is my intention that there be a total sentence of one year and nine months imprisonment to date as accumulated from 15 June expiring on 14 March 2022.

65. In relation to this one recognizance direction you will be released forthwith upon you entering into a recognizance pursuant to s 21B Crimes Act 2014 yourself in the sum of $400 without surety in the sum of $400 with the following conditions:

1. To be of good behaviour for a period of two years from this date, to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period,

2. To accept the supervision and guidance of an officer of Correction Services New South Wales for two years and obey all reasonable directions, especially in regard to treatment programs. Report to the Wollongong Community Corrections within seven days.

3. Not to travel interstate or overseas without the written permission of the Parole officer (Community Corrections NSW).

66. I will make a forfeiture order pursuant to s 23ZD in accordance with the form filed by Commonwealth Director of Public Prosecutions.

67. Mr Ebejer, as has been explained to you I am sure, you are now a registrable person under the Child Protection (Offenders Registration) Act 2000. You must register and comply with those reporting obligations. The period and other matters relating to it are not for me to determine and they did not and could not affect the sentence I have imposed upon you. But I urge upon you the necessity of keeping to those conditions and those strict conditions because any breach of them will make you liable to criminal punishment, and if you commit a crime you are in breach of the recognizance as I have explained upon you. I trust I will never see you in court again Mr Ebejer, but if I do you will not attract the leniency that you attracted on this occasion.

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Decision last updated: 24 August 2020