R v Filmer

[2024] NSWDC 609

District Court

New South Wales

Medium Neutral Citation:

R v Filmer [2024] NSWDC 609

Hearing dates:

11 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Nicholas Peter Filmer is convicted.

2   I impose an aggregate term of imprisonment of 2 years to date from 31 October 2024 and expiring on 30 October 2026.

3 Pursuant to s 20(1)(b) Crimes Act 1914 (Cth), I order that the offender be immediately released on entering into a recognisance in the sum of $1,000 to be of good behaviour for 3 years. The further conditions of the recognisance that will apply for 3 years from today are that:

(a)   the offender accepts the supervision of a Community Corrections Officer;

(b)   the offender obeys all reasonable directions from Community Corrections;

(c)   the offender is not to travel overseas or interstate without the written permission of Community Corrections; and

(d)   the offender to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Cases Cited:

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Nicholas Filmer (Offender)

Representation:

Counsel:
D New (Crown)
M Cunneen SC (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Anderson Boemi Lawyers (Offender)

File Number(s):

2023/180623

Publication restriction:

None

JUDGMENT

1. Nicholas Peter Filmer (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence	Offence	Maximum Penalty/ SNPP
3	Use of carriage service to cause child abuse material to be transmitted to self, contrary to s 474.22(1) Criminal Code 1995 (Cth)	15 years imprisonment
4	Use of carriage service to groom person under 16 years contrary to s 474.27(1) Criminal Code 1995 (Cth)	15 years imprisonment
5	Use of carriage service to cause child abuse material to be transmitted to self, contrary to s 474.22(1) Criminal Code 1995 (Cth)	15 years imprisonment
6	Use of carriage service to solicit child abuse material contrary to s 474.22(1) Criminal Code 1995 (Cth)	15 years imprisonment

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

4. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. The offender entered an early plea of guilty in the Local Court. The plea of guilty has saved the need for most of the witnesses to be called at trial and there is significant utilitarian value in the plea. By pleading guilty the offender has facilitated the course of justice and the plea indicates remorse. For reasons I will come to, the offender has been wholly unsuccessful in disputing some of the facts that required ES to be called as a witness. Taking into account all of those factors, the appropriate discount is 20%.

6. An Intensive Corrections Order is not an available sentencing option for the offences: s 67 Crimes (Sentencing Procedure) Act 1999.

Facts

7. The parties presented a Statement of Facts, that was for the most part agreed. The contested facts were highlighted in the document and the Crown called ES to give evidence, limited to the contested matters. The challenge to certain facts arose because the communications between the offender and ES occurred over Snapchat and the messages “disappeared” in accordance with the set up of the platform. The offender’s challenge to the contested facts rises and falls on my assessment of ES’s credibility as a witness and whether I am satisfied beyond reasonable doubt of the disputed facts.

8. I considered ES to be an excellent witness. She presented as a confident and articulate young person with a reliable recall for the events that were referred to in the Statement of Facts. In my view, she was unshaken in cross-examination and provided cogent detail that supported the content of the Statement of Facts. I am satisfied that her evidence should be accepted. I am satisfied beyond reasonable doubt of each of the disputed facts. Accordingly, the offender’s challenge to the disputed facts fails.

9. What follows is a brief summary of the Statement of Facts relevant to the offender to permit an understanding of the sentence imposed.

Summary

10. At the time of the offences the offender was aged between 24 and 25 and a serving police officer. ES and ED were aged 15 at the time of the offences.

11. Between 1 November 2022 and 28 April 2023 the offender groomed ES for unlawful sexual activity (sequence 4).

12. On 20 April 2023 and 28 April 2023 the offender caused child abuse material to be transmitted to himself from ES, in the form of a photograph of her in a tan bra with her breast exposed (sequence 3) and a 10 second video of her vagina (sequence 5).

13. Between 21 April 2023 and 30 April 2023 the offender solicited child abuse material from ED by asking her to send him explicit photographs of herself.

Background

14. The offender had a Snapchat account with the handle “nick.filmer262”, to which his mobile telephone number and bank account details were linked.

Victim ES – sequences 3, 4 and 5

15. ES was 15 years old at the time of the offending.

16. In approximately November 2022, the offender added ES on Snapchat. The offender initially posted a number of comments complimenting ES’s physical appearance in response to images of herself posted by ES.

17. On 12 December 2022, ES accepted the offender’s friend request on Snapchat.

18. The offender messaged ES throughout the entire Christmas break, complimenting her appearance with comments like, “you’re stunning”, “gorgeous”, “your lips are nice” and sending her a heart-eyed emoji.

19. ES began responding to the offender at the start of February 2023. She recalls the offender commenting on her body to which she would reply with “Thank you” or just an “X”.

20. The offender then started messaging ES every day or every second day stating “you’re gorgeous” or “why are you leaving me on delivered” with a sad face emoji when she did not respond.

21. The contact between the offender and ES progressed to conversations. ES limited her responses in an effort to keep the conversations short.

22. Around the beginning of April 2023, the offender and ES had a conversation about age. ES told the offender that she was 15 years old. The offender said he was 18 years old and asked ES whether that “creeped her out” to which she responded that it did.

23. On 18 April 2023, the offender messaged ES saying, “You’re very gorgeous, good morning”. ES posted a Snapchat story asking for someone to send her money. The offender responded to this story by asking how much money ES wished to receive, to which ES responded $100. He sent $100 to ES as well as further transfers when she requested money for shopping.

24. After the offender began sending ES money, he would message her every 10 minutes.

25. Bank records demonstrated that the offender sent ES a total of $1,450 over six days in 10 transactions.

26. ES asked the offender to stop sending her money, but he told her it was already too late and that he sent her the money because she deserved it.

27. On 20 April 2023, ES told the offender she could not accept his money and asked him to take it back because she believed he would make her send him “something” later, but he refused, so she spent the money.

28. Later that night, the offender told ES that she “owed” him and that she “better send [him] a photo”. After sending a photograph she had downloaded from the internet, the offender asked ES for a photograph of herself wearing the clothes or items she had bought with the money the offender had sent to her. ES said the offender asked her to send him a photograph of herself or he would “tell her friends”, which made her feel scared. ES sent a landscape photograph of herself in a tan bra. In the photo she was wearing a necklace with her name on it. At the offender’s request, ES sent a further photo of herself in a tan coloured bra exposing her left breast with the same name necklace visible. ES sent the photographs because she felt pressured and she did not want her family or friends to find out, so she sent him what he asked for.

29. The offender attempted to save the photographs but ES deleted them from the chat.

30. In the following days, the offender continued to request “nudes” of ES stating that “I want to see you naked” multiple times. The offender wrote to ES “please send me”, followed by a cat emoji with love heart eyes. While the offender did not explicitly state this, ES understood the emoji to be a reference to her vagina. ES responded words to the effect of, “No, not until I see yours” and sent an eggplant emoji, which she intended to be a reference to his penis. The offender responded that he did not feel comfortable sending that type of photograph. ES told him that she was also not comfortable. The offender responded by saying that she “owed him big time”.

31. On 24 April 2023, ES received $300 from the offender. ES then blocked the offender on Snapchat.

32. She received continual notifications that the offender was adding her back on Snapchat and on 28 April 2023, she re-added the offender. The offender continued to request naked photographs of ES and told her that if she did not send anything she would not receive any more money.

33. In response to these messages on 28 April 2023, ES sent the offender a 10 second video of her vagina, taken under her bedsheets. She was unclothed and using her fingers to rub the external area of her vagina. ES sent the video to get it “over and done with”.

34. After ES sent the video, she told the offender that he needed to stop adding her back and that it was inappropriate. ES again blocked the offender.

35. During their conversations, the offender acknowledged that ES played basketball and football. On Sunday 30 April 2023, the night of her football match, ES was worried the offender would turn up. She told her parents about the offending, leading to them accompanying her to make a report to the police.

Victim ED – sequence 6

36. ED was 15 years old at the time of the offending. ES and ED were friends from football.

37. On 21 April 2023, ES told ED about someone sending her money. ED asked for the offender’s Snapchat and added the offender to her account. ED chatted to the offender and told him that she was 16 years of age, which was false. The offender told ED that he would have money to send her in a few days’ time.

38. Approximately two days after chatting with ED, the offender asked ED to send a photo of her “boobs”.

39. Initially ED said she did not want to send any photos and the offender responded that she did not have to do so, but a few minutes later was pushy and again requested photographs.

40. Over the course of the following days, ED sent the offender approximately four images that she had downloaded from the internet including an image depicting a female holding the camera between her legs fully naked with her face not visible and others of females with their breasts exposed or wearing underwear.

41. The offender asked ED for her bank account details which she provided. She told the offender that it was her birthday in a few days and that she wanted a phone, which she advised was $1000.

42. On 27 April 2023, the offender deposited $900 into ED’s bank account.

43. After ED received the money there was not much conversation and on 29 April 2023, ED removed the offender as a Snapchat friend and deleted the chat.

Search warrant and arrest

44. On 6 June 2023, the offender was arrested at his workplace, Burwood Police Station. Search warrants were executed at the offender’s residence, motor vehicle and workplace.

45. The offender’s mobile device was seized and the Snapchat application was installed on it using the “nick.filmer262” account.

46. During the search warrant the offender become visibly upset and stated, “my life is over”. He declined to be interviewed.

The Offender’s Case on Sentence

47. The offender relied on the following documents:

1. psychological report of Professor Stephen Woods dated 4 October 2024;

2. letter of Dr Adam Hopkins dated 4 October 2024;

3. letter of apology of the offender dated 10 October 2024;

4. character reference letter of Christopher West dated 9 October 2024;

5. character reference letter of Bronwen West dated 9 October 2024; and

6. character reference letter of Julie Craig dated 9 October 2024.

48. The following is a precis of the evidence relied upon by the offender.

49. The offender is 26 years of age. He is the youngest of two children born to his parents’ union. The offender’s elder brother is an environmental surveyor and resides with his fiancée in Sydney. The offender told the psychologist that he always held his brother in high regard and perceived himself to be inferior, particularly in respect of his brother’s ability to maintain a relationship with his fiancée while having a successful career.

50. The offender reported to the psychologist that he had a reasonably good relationship with his father despite some disagreements during his younger years. He felt controlled by his mother and never developed a close emotional relationship with her.

51. In primary school, the offender had a small group of friends consisting of students in lower grades.

52. He completed Years 7 to 10 in Newcastle where he felt emotionally isolated until he became involved in the school rowing team. He then attended a boarding school in Orange for Years 11 and 12. The offender recalled that it was not until part way through Year 11 that he developed a small circle of casual friends connected through rowing.

53. After completing high school, the offender returned to Newcastle where he resided with his parents. He completed two and a half years of a Bachelor of Teaching (Secondary School Science) at Newcastle University. The offender was not able to establish any friendships while at university or in the local community at this time, which influenced his decision to quit university.

54. The offender subsequently found employment as an assistant rowing coach at his old high school.

55. The offender became a sworn police officer on 1 March 2021. He ultimately applied to become a police officer due to encouragement of the senior rowing coach and because he liked structure and being given direction. He had “some friends… not a lot at work… but not outside work”.

56. Upon being charged with the current matters, the offender was suspended pending formal termination of his employment.

57. In approximately March 2024, the offender obtained work as a general hand on a chicken farm.

58. The offender reported having dated a total of three young women since his mid-teens, the last occasion being in 2022. He did not go on more than three dates with any of them.

59. When reflecting on those dates during his psychological assessment, the offender explained that he was never able to obtain an erection and that each of the young women responded in a manner that caused him to feel humiliated. At the time, the offender was residing in shared accommodation with his brother and his brother’s partner, both of whom had often asked him why he did not have a girlfriend. These enquiries added to the offender’s sense of sexual inadequacy.

60. Following his first failed attempt at intimacy at age 15 or 16, the offender has viewed adult heterosexual pornography on the internet, approximately two to three times per week.

61. At 18, the offender commenced viewing live streams of couples engaged in intimate acts and women masturbating in response to his text requests.

62. When he was aged 24 to 25 years he began “sexting” over Snapchat. Aside from the two victims, the offender was messaging a large number of adult women. His usual practice was to ask questions to ensure that the women were over 18. The majority of women he was sexting charged a fee for their services. The offender estimated to have paid at least $3000 in order to engage in these activities.

63. The offender masturbated while engaging in these activities, more frequently than not resulting in ejaculation. He avoided allowing his image to appear on screen when live streaming and did not send images of his face or any of his anatomy when sexting. The offender reported that he feared the other person would find him “ugly” or make comments that would cause him to feel humiliated. The psychologist opined that the offender’s ability to reach a climax during these fantasy interactions and his inability to do so in person, likely exacerbated his sense of inadequacy.

64. Following consultation with his General Practitioner, Dr Adam Hopkins, the offender was referred to Stephan Neuwerk, Clinical Psychologist. The offender attended for treatment on 23 occasions between 15 June 2023 and 7 May 2024, with treatment focusing on assisting him in adjusting to and coping with his current circumstances. In his letter to the Court, Dr Hopkins confirmed that the offender is continuing psychology therapy with Mr Neuwerk following his psychological assessment with the psychologist.

65. The offender has no prior history of offending.

66. In relation to the matters before the Court, the offender did not attempt to have any direct contact with the victims and made no attempt to hide the fact that the monies transferred to the victims came from his police bank account.

67. The offender expressed remorse in his letter to the Court and to his character referees and accepted full responsibility for his actions. He seeks to improve himself and learn to live a productive life with his mental health issues.

68. The offender’s character referees describe him as shy, respectful and reliable. They each stated they had witnessed how the charges and the offender’s resignation from the police force have impacted on his mental health, including the offender not leaving his parents’ house for multiple months.

69. The psychologist opined that the offender “is a deeply psychologically troubled and emotionally immature young man”. Despite the nature of his offending behaviour, the psychologist noted that the offender does not satisfy the diagnostic criteria for Paedophilic or Hebephilic Disorders.

70. The psychologist opined the offender does however meet the diagnostic criteria for the following comorbid mental disorders:

1. Other Specified Sexual Dysfunction – sexual fantasy and vicarious intimate relationships.

2. Erectile Disorder.

3. Other Specified Personality Disorder, Mixed features, predominately Avoidance, Schizoid and Schizotypal types specifically, extreme discomfort in close or potentially intimate relationships due to feelings of personal inadequacy and hypersensitivity to the feared possibility of a negative evaluation by others.

4. Persistent Depressive Disorder.

71. The psychologist stated that the offender exhibits impairments in respect of his sense of self as it applies to personal identity, ability to regulate emotions in a healthy manner and form psychologically healthy relationships. This is reflected in the offender’s sense of personal ineptness and inadequacy, anxious preoccupation with feared negative evaluation and rejection by others, and a tension between his desire to form close relationships and anxious avoidance of social interaction due to feared possible rejection.

71. The psychologist recommended that the offender engage in a highly structured treatment regime focused on Dialectical Behavioural Therapy to address his Personality Disorder symptoms, Cognitive Behavioural Therapy to address his symptoms of Persistent Depressive Disorder, psychoeducation in respect to increased victim impact awareness and the inability of young victims to comprehend the potential ramifications of social media based stranger contact and psychotherapy focusing on self-awareness, healthy interpersonal relationships and self-confidence building.

72. The psychologist also recommended as an adjunct to this treatment regime, that the offender obtain a referral to a psychiatrist with experience in the area of erectile dysfunction and the associated psychological factors.

Consideration

Nature and circumstances of the offences

74. Sequence 4 occurred over a six month period. The offender was persistent in his contact with ES. He continued to message ES after she indicated that she wanted him to stop. He sent her money as a means of getting what he wanted. The amount of money was significant in the context of her age. He exerted pressure on ES to have her send child abuse material in the form of nude photographs of herself. The offender knew that there was a 10 year age gap between them. I am not satisfied that the offender had any intention to try to meet ES in person. The nature of the intended sexual activity did not rise above ES transmitting nude photographs of herself to the offender.

75. Sequence 3 involved ES sending two photographs of her in a bra, one in which her breast was exposed to the offender at his request. The nature of the photographs is at the lower end of child abuse material. Sequence 3 is objectively less serious than sequence 5.

76. Sequence 5 involved ES sending a 10 second video of her vagina to the offender at his request. The nature of the material sent was at the lower end of child abuse material.

77. Sequence 6 occurred over a period of seven days. ED knew how the offender had engaged with ES and was prepared. She sought to get money from him and did not comply with his requests to send nude photographs of herself to him. The offence is at the lowest end of the scale of objective seriousness.

78. There is a considerable degree of overlap between the offences. The grooming offence was committed over the entire period for the purpose of receiving nude photographs from ES. The transmission of child abuse material offences were committed when ES sent the photographs and the video to the offender. Contrary to the Crown’s submissions, in my view sequence 4 is the most objectively serious of the offences, followed by sequence 5, sequence 3 and sequence 6, in that order. All of the offences are in the low range of objective seriousness for these types of offences.

79. I have taken into account the maximum penalty for the offences.

Deterrence

80. General deterrence has been expressed as a paramount consideration for similar kinds of federal offences by the intermediate appellate courts.

81. General deterrence may be afforded less weight where the offender suffers from a mental condition because the offender is not an appropriate person to be made an example of. I am satisfied that this is such a case. The offender has suffered from long term erectile dysfunction that has had a profound psychological impact on his ability to engage in romantic and age appropriate sexual relationships. I am satisfied that there is a strong causal link between his mental condition and the offending conduct. The evidence demonstrates that there was a degree of compulsion about the offender’s behaviour. He was spending large sums of money to engage in sexting with a number of women as a result of his erectile dysfunction because it allowed him to experience ejaculation but was also making the problem worse.

82. There is a need for specific deterrence but it is substantially reduced. The offender has suffered the humiliation of his physical and mental conditions being exposed in these proceedings. He has lost his employment as a police officer. He has some insight into his problems and has begun to seek appropriate treatment.

Contrition

83. The offender has accepted responsibility for his actions and expressed remorse to the psychologist, his referees and to the Court. I accept that he is genuinely contrite.

Character, antecedents, age, physical and mental condition

84. The offender is presently 26 years of age and has no prior criminal convictions. His character referees describe him as a man of good character.

85. He has suffered from erectile dysfunction since puberty and this has severely impacted his ability to engage in healthy sexual relationships. It has also added to his feelings of social isolation that were apparent from his childhood and adolescence.

86. His physical condition has been the catalyst for his complex mental condition that is made up of a number of conditions. I am satisfied that his complex mental condition and its causal relevance to the offences, substantially reduces his moral culpability.

Prospects of rehabilitation

87. The offender has excellent prospects of rehabilitation. He has retained a therapist and has been actively engaged in regular psychological treatment since June 2023. He has strong family support and has sought and maintained alternate employment.

Victim Impact Statement

88. I have had regard to the Victim Impact Statement thoughtfully prepared by ES and read aloud by her in the sentence proceedings. This case is a good example of the psychological impact that these types of offences can have on underage victims. ES, a confident and capable young woman, felt pressured, scared and feared being humiliated in front her friends on social media.

Penalty

89. Nicholas Peter Filmer is convicted.

90. I have had regard to s 17A of the Act and I am satisfied that having considered all possible alternatives that a sentence of imprisonment is the only appropriate sentence for the reasons set out in this judgment.

91. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. Sequence 3 – 9 months;

2. Sequence 4 – 18 months;

3. Sequence 5 – 12 months;

4. Sequence 6 – 6 months.

92. I impose an aggregate term of imprisonment of 2 years to date from 31 October 2024 and expiring on 30 October 2026.

93. The Court must not make an order immediately suspending a term of imprisonment for a Commonwealth child sex offence, unless it is satisfied that there are exceptional circumstances for doing so.

94. Taking into account all of the circumstances in combination, I am satisfied that there are exceptional circumstances warranting the immediate suspension of the term of imprisonment. The offences are in the low range of objective seriousness. The offender did not have a sexual interest in children. The offender engaged in sexting as a result of his complex mental condition that arose as a consequence of his sexual dysfunction. His mental condition reduces his moral culpability for the offences and general deterrence, retribution and denunciation can be afforded less weight. He co-operated with the police when challenged about his behaviour and has accepted responsibility for his actions through his early guilty plea and expressions of remorse. I am satisfied that the offence was an isolated period of wrongdoing in an otherwise law abiding life. Full time imprisonment would be very onerous on the offender by reference to his mental condition, his former employment as a police officer and the offences that he will be convicted of. I am confident that the criminal law process has had a significant impact on the offender and that he has suffered extra curial punishment in the form of the loss of his employment and public humiliation. The offender is willing to engage in interventions and the penalty imposed on him will impact his freedom significantly and thereby reflect general deterrence and denunciation and be a punishment of appropriate severity.

95. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth), I order that the offender be immediately released on entering into a recognisance in the sum of $1,000 to be of good behaviour for 3 years. The further conditions of the recognisance that will apply for 3 years from today are that:

1. the offender accepts the supervision of a Community Corrections Officer;

2. the offender obeys all reasonable directions from Community Corrections;

3. the offender is not to travel overseas or interstate without the written permission of Community Corrections; and

4. the offender to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

96. If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

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Decision last updated: 20 December 2024