R v Fleming

[2021] NSWDC 453

District Court

New South Wales

Medium Neutral Citation:

R v Fleming [2021] NSWDC 453

Hearing dates:

2 July 2021

Decision date:

02 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 5 years 3 months with a non- parole period of 2 years 10 months.

Catchwords:

CRIME - Aggravated sexual intercourse child over 14 but under 16 years – complainant under the influence of a drug

SENTENCING - Relevant factors on sentence – late guilty plea- some other facilitation of the course of justice – child victim on ‘grindr’ app- offender assumes protective role – offender also sexual exploits victim - immature adult offender - age differential- aggravating feature the use of alcohol and other drugs – absence of other aggravating features - victim non-oppositional to sexual acts - impact on victim - ill health - COVID 19 – assaulted in gaol - compliance with bail conditions - good prospects if giving assistance - special circumstances

Legislation Cited:

Crimes Act (NSW) 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115

Bell v R [2019] NSWCCA 251

Brown v R [2020] VSC 60

Dawkins v R [2018] NSWCCA 278

Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150

Nelson V R [2016] NSWCCA 130

R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487

Silvano v R [2008] NSWCCA 118

The Queen v De Simoni (1981) 147 CLR 383

Wakeling v R [2016] NSWCCA 33

Category:

Sentence

Parties:

Bryce Fleming (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr B Clark (for the offender)

Solicitors:
Kells (for the offender)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s):

2020/00006268

Publication restriction:

1. The name of the complainant is not to be published, nor is any other material that could lead to the identification of the child complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.
2. The Complainant is referred to in this judgment by a pseudonym

sentence – ex tempore revised

Introduction

1. Bryce Fleming was born in 1999. He is for sentence today for six offences that occurred between July and October 2019. The complainant in this matter, Scott (a pseudonym), was born in October 2004. Earlier this year, Fleming was arraigned and pleaded guilty to five counts of sexual intercourse with the young person, then aged 14, in circumstances of aggravation, namely, that Fleming took advantage of the young person, being under the influence of a drug, in order to commit the offence. All of those matters are pursuant to s 66C(4) Crimes Act (NSW) 1900. They carry a maximum penalty of 12 years imprisonment, and for an offence, which taking into account only objective factors, falls in the middle of the range, there is a standard non‑parole period of five years. Count 4 charges sexual intercourse with a person aged 14 to 16: s 66C(3) Crimes Act, maximum penalty, ten years.

Form 1

2. When I sentence Fleming for Count 1, he has asked that I take into account two other matters; commit an act of indecency and incite an act of indecency: s 61N(1) Crimes Act (NSW); maximum penalty two years.  It is appropriate that I do so.  I do not sentence for those matters, but they could lead to a longer sentence for the matter for sentence to take into account the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115. Here, these matters were preparatory to the offence in Count 1. They formed part of what the Sentence Assessment Report (SAR) referred to as “grooming behaviour.” Because I have taken them into account when I formulate the objective seriousness of the offence for sentence, any Form 1 increase would be notional as I could not double count such matters.

Agreed facts

3. There are agreed facts before the Court.  I will summarise them, trying to avoid prurient details.  The offender, as was his right, was on a social media site Grindr.  I am informed, and accept, that it is primarily used for adults to meet for sexual purposes.  The young person, Scott, was also on that site, despite access to the site be notionally limited to those aged over 18.

4. In their communications, Fleming told Scott that he looked too young to access the site. Scott confessed that he was 13 years.  The two agreed to meet.  The Form 1 matters, relate to an incident in 2017, the first time they met in person. On this day Fleming, another man, and the young person were at his home.  Cannabis was smoked in Scott’s presence.  Fleming masturbated, and made a request that Scott “suck his dick.”  The other man told the offender to leave him alone, which Fleming did.

5. The sexual relationship, detailed in the agreed facts, commenced in in 2019, probably early September; by this time Scott was 14.  They met, and both smoked methylamphetamine. Fleming requested fellatio, Scott agreed, and each performed fellatio on the other.  Later that morning they went to watch the sunrise and Scott performed fellatio on Fleming while they were on a bush trail where. Scott then asked to be taken home: Counts 1, 2, and 3. 

6. The following night they met again behind Fleming’s home.  Scott again agreed to and performed fellatio on the offender: Count 4. 

7. In mid‑October 2019 the two met and went by train to Sydney.  They stayed in a motel.  Fleming provided champagne and wine.  Scott was well affected by alcohol.  After some physical touching, Fleming performed fellatio on Scott and then Scott performed fellatio on the offender: Counts 5 and 6.  At this point the offender asked Scott to have “sex” with him; he declined, and became distressed.

8. The agreed facts are short on detail after this.  It appears that the child tried to make his way to a train station.  There was an argument, and Fleming called Scott’s mother.  He also called the police, telling Scott he did not care if he went to gaol, he just wanted to get him home safely.  Scott was obviously distressed by what occurred, and ran in front of a taxi, though he was not hit.  The police came and took Scott to a police station, where his father picked him up. 

9. Scott later disclosed the sexual encounters and the use of drugs to a number of people.  A formal complaint to police was made on 17 October 2019.  There was a covert call between the child's mother and the defendant in October 2019, during which Fleming made an admission to one act.  The offender appears to have made a distinction between oral intercourse and other forms of sexual intercourse.  He was arrested on 8 January 2020.

Relevant factors on sentence

The Guilty Plea

10. It is important to note that the pre‑trial procedures, known as EAPG, were followed in the Local Court. Certain offers were made by the prosecution, which were not accepted by the defence. Nevertheless, after the matter was referred to this Court, as this Court encourages, and is common amongst the Wollongong legal profession, discussions continued. Although the matter had been listed to trial, the matter was resolved by a plea, which meant that a jury did not need to be empanelled. The strict provisions of the s 25D Crimes (Sentencing Procedure) Act 1999 mandate that I can only give a 10% reduction in the otherwise appropriate sentences for a plea of guilty prior to trial. But there is before the court material to indicate that following his acknowledgment of guilt to Scott’s mother, there were continuing discussions and continuing efforts by Fleming in his dealings with his solicitors and New South Wales Police to facilitate the course of justice, matters which must be synthesized along with all other relevant factors.

Objective seriousness

11. The maximum penalty for each of the offences, and the standard non‑parole period attached to the five counts, are stark statements by Parliament as to how serious sexual offences against children are regarded.  Any contact of a sexual nature with a child is totally forbidden.  The offender, from all the material before me, was well aware of this fact.  The courts are enjoined to respect the direction given by the maximum penalty and the standard non‑parole period.

12. Recognition must be given to the real possibility of both immediate physical and psychological harm to a child exposed to premature sexual activity. There is a real risk that any psychological harm can continue for many years. Accordingly, court must impose sentences that appropriately punish, but also exact a measure of retribution in order to bring home to this offender the seriousness of their crimes, and to signal to others in the community that they will be punished, and punished severely should they offend in a sexual way against children.

13. Five of the matters for sentence have, as an element, the aggravating circumstance that the offence was committed by the offender taking advantage of the young person being under the influence of a drug in order to commit the offence.  Again, the law is very clear:  exposure to drugs, whether they be methylamphetamine, illegal, or alcohol, legal, can have an immediate and lasting physical and psychological impact on a child. The protective function of the Court requires a significant punishment in most such matters.

14. The acts themselves involved oral intercourse; skin‑on‑skin touching. The child was alone with the offender.  The relationship had been fostered by the offender. I am prepared to accept that their relationship was, in a sense, protective as the offender himself had suffered considerable distress at coping with and understanding his sexual identity and was concerned that a person as young as 13 was on the ‘Grindr’ site.  At the same time, their relationship was exploitative. An adult took advantage of a child in a sexual manner. This is evident from the, as is evident from the facts before me, and demonstrated by there being a sexual act by this offender when they first met in person - the Form 1 matters.

15. The Sentence Assessment Report and the other material before me put the offender’s own perspective - he was somehow looking after the interests of the young person. But it is also clear that he was prepared to use a child for sexual purposes.  Whatever sympathy he thought he was showing Scott and whatever protective role he thought he was playing, each matter for sentence involved the exploitation of a child for prurient sexual purposes. And, in five of them, the exposure of a child to drugs and alcohol were before he was old enough to make any rational choices about such matters. 

16. I have to give content to the standard non‑parole period, but here there are reasons for departure from it, not the least being the plea of guilty and the absence of further aggravating further circumstances. While there is no Victim Impact Statement before the Court that fact alone cannot mitigate. The agreed facts indicate how distressed the child was following the last encounter and demonstrates the danger on immature young people of early sexual activity and intoxication with alcohol.

17. The offender was older than his victim.  It is however clear from all the material before me that he was, at the relevant time, very immature. He should not be sentenced in accordance with his actual age.  That said, there is a considerable difference between even an immature 20‑year‑old and a 14‑year‑old. A 14‑year‑old is usually in their first or second year of high school. He has probably only just reached puberty.  A 20‑year‑old is an adult, permitted to drive, to drink, to work, to vote.  All those marks of adulthood applied to this offender.  It may be that he was still only learning about relationships, and it may well be that the young person envied him and his adulthood.  That difference can be significant: Nelson v R [2016] NSWCCA 130, Rothman J at [62] to [65].

18. The law has established an arbitrary age below which consensual sexual relations are impossible, and that age is 16. That means a child below the age of 16 cannot consent to consent to activities set out in the agreed facts.  The presence of absence of consent can be irrelevant in the assessment of objective seriousness of a sexual offence: Dawkins v R [2018] NSWCCA 278, Wakeling v R [2016] NSWCCA 33, Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150. In most circumstances to describe sexual activities involving children as “consensual” is both erroneous as a matter of principle and fact: Nelson per Basten J at [16].

19. The absence of consent is not an element of or inherent in s 66C offences. Forced intercourse without consent would be relevant as a matter of aggravation, if care is taken not to infringe the principles set out in The Queen v De Simoni (1981) 147 CLR 383, but the absence of an aggravating feature does not mitigate the seriousness of the offence.

20. A better approach was suggested by the Court of Criminal Appeal in Bell v R [2019] NSWCCA 251. The issue of consent should be taken into account by approaching each offence on the basis that each act of sexual intercourse was “non‑oppositional.” And, that is a matter that I can take into account when assessing the seriousness of the offence, balancing that will all other matters, particularly the age differential to which I have already referred.

Pre-sentence custody

21. It is accepted that only custodial sentences can be imposed.  Fleming spent five months and five days in custody before receiving Supreme Court bail.  As his counsel, Mr Clark, points out that can create a potential problem in terms of anxiety and stress on any offender who knows their offences are so serious that a return to custody is inevitable. I will take into account that period of stress and his compliance with his bail undertakings.  There was one breach, but I will ignore it. 

22. There is also material before me, which I am prepared to accept, that shows that the offender was vulnerable while last in gaol. He was stood over and assaulted.  While the courts draw a distinction between assaults in custody that involve extra curial punishment and those that cannot be so linked a judge is entitled to take into account and synthesise all relevant considerations:  Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487.

23. Where someone has been assaulted in custody, even after the wounds heal, a prisoner will inevitably suffer anxiety and other concerns when they are kept in or returned to the same environment where they were previously assaulted.  They could not be protected in the past. They have no control over who they associate with and no control over their immediate safety.  Courts do not ignore the lived experience of gaols.  They are nasty, violent places; all prisoners are at potential risk.  It needs no imagination, nor is additional evidence required, to establish that a person who has been injured or assaulted in gaol will continue to worry about those matters reoccurring.

Ill health

24. The material before me indicates that the offender has recently had gastric banding surgery.  His weight has been reduced from 130 to 80 kilograms, as is obvious for those seeing him in court.  That surgery and his large weight loss puts him at risk of further medical complications.  He will require dietary assistance and monitoring. 

25. He also suffers from asthma, and both doctors' reports will accompany the warrant so that Corrective Services and Justice Health can be fully informed about his needs.  His requirements for exercise and diet cannot all be met in custody as there are limitations on how much personal attention a prisoner can get.  That said, offenders cannot escape punishment because of their health. Ill health can however mitigate punishment where custody places a greater burden on this offender than some notional offender who does not have the same conditions. It can be one reason for a finding of special circumstances.

COVID-19

26. The offender will return to gaol and serve the five months and five days, subject to COVID lockdown and the COVID procedures in the gaols. The present crisis has increased apprehension by everyone, but prisoners are reliant upon Justice Health and Corrective Services. Personal visits are restricted. I have heard evidence in many other matters that prisoners are often locked in their cells for long periods. This will have a particular impact on this offender because he may need extra exercise to maintain his weight loss. COVID‑19 has not yet entered our gaols. Early parole can be given to some prisoners, if it does, but this offender would not fall into that category: s276 Crimes (Administration of Sentences) Act 1999.  I take into account the COVID restrictions, the heightened anxiety that apply, and they are of particular concern here because of the medical conditions to which I have earlier spoken: Brown v R [2020] VSC 60 at [48].

Other subjective features

27. The offender was very young; he was very immature. Immaturity is a relevant factor on sentence.  It is clear from all the material before me, including the references that he has thought to better himself. And has obtained qualifications. When he was young person he was treated as someone who required special education. He was told he was unteachable.

28. His progress, since arrest, by entering university and completing his university courses indicates that he has matured. He is capable of focusing, and has demonstrated a capacity to lead a productive life in the community.  A dependency on marijuana and other drug use blighted his teenage years. Instead of protecting Scott from this, he introduced him to the drugs, which does him no credit. But to his credit there is material before the Court that, with the help of Illawarra Drug and Alcohol Service, he appears to have stopped the use and abuse of illicit drugs.

29. He tells me, although it was not on oath, that he is doing everything he can to improve himself.  He has expressed remorse.  This is, as the Sentence Assessment Report points out, qualified because - to use their terminology – “he has minimised his own agency.”  His initial intentions, he states, were innocent, and he said he felt upset he had been portrayed as a predator. 

30. Speaking directly; Mr Fleming, your behaviour was predatory towards this young person.  It is one of the reasons why the Sentence Assessment Report annexure, from the senior psychologist, indicates that there are matters of concern so far as your risk of reoffending is concerned; matters that must be addressed, if possible, in custody and certainly post release by access to programs.

31. Given the time served, and given the leniency that I intend to extend to him, Fleming may not have an opportunity to complete a program in custody, but it is clear that when he is released it would be in his interest that he see his GP again for a referral to a private psychologist. 

32. It may be some other programs will be made available to him.  He has the benefit of strong pro‑social support from many family and friends.  He, himself, has had to deal with a number of particular problems growing up, and has done so successfully. For the moment I do not regard the previous convictions as of particular relevance. I am reasonably confident that with assistance he will not offend again.

Submissions

33. Mr Clark and Mr Coulton both provided written submissions to which they spoke.  I have endeavoured to take into account all of the matters raised. They are extensively cited. 

34. There is no significant difference so far as matters of principle are concerned, apart from the issue of the plea discount. There were matters raised by Mr Clark which I cannot take into account; an Intensive Correction Order was never an option, full stop: statutory prohibitions and length of sentence have to be considered first.  The offender will be placed on the Child Protection Register sex offender register; that is not a factor I can, and should, take into account. 

33. I do not believe Fleming’s prior good character enabled him to commit these offences; he is entitled to the benefit of it.  I am confident, that with assistance, he will not come before a court for these or any other significant offence. 

Synthesis

36. Mitigating factors can go only so far.  A sentence has to attempt to appropriately punish an offender. A sentence in a case such as this must attempt to vindicate the dignity of a child victim and reflect the Court's and the community's abhorrence of any sexual crimes against children. This is particularly so for those crimes where an element of the offence involved the child being under the influence of alcohol or other drug.

37. As with many such cases, sentencing for these offences involves a balance of competing purposes.  On one hand, the offending behaviour and the objective seriousness each of the multiple offences calls for significant punishment.  On the other hand, the offender’s subjective circumstances require any punishment be tempered by a degree of compassion. I must have regard to his immaturity, his prior good character, and, his progress to rehabilitation. There is always a need to foster the rehabilitation in a young person who has not settled into criminal habits. That need should play a prominent part in the sentencing exercise.  A significant case for special circumstances for a number of reasons has been made, but as Mr Coulton, Solicitor Advocate for the Director reminds me, the minimum term should still, and must still, properly reflect the seriousness of the offending. 

38. There are six matters for sentence. There are three incidents.  There will be an aggregate sentence.  There must be some accumulation as between them, but the nature of the acts, the nature of the impact on the victim, all of the subjective circumstances apply to each of the offences, the total sentence imposed should adequately reflect what was done, and the subjective case made.  Each of the indicated sentences will be reduced by 10%.  I have sought in the process of accumulation not to erode that benefit.

Orders

39. In relation to each of the matters, the offender is convicted. I have to indicate sentences for each matter and standard non-parole periods for each of the s 66C(4) offences.

40. I indicate that my starting point for Count 1, taking into account the Form 1, would have been four years and six months.  For the Counts 2, 3, 5 and 6, it would have been four years; for Count 4, two and a half years. There has to be some rounding down, I do not believe it is necessary that there be days and week set out for indicated sentences. 

1. In relation to Count 1, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 4 years with a non parole period of 2 years 3 months

2. In relation to Count 2, I indicate a sentence of 3 years 7 months with a non‑parole period of 1 year 11 months

3. In relation to Count 3, I indicate a sentence of 3 years 7 months with a non-parole period of 1 year 11 months.

4. In relation to Count 4 I indicate a sentence of 2 years 3 months

5. In relation to Count 5 I indicate a sentence of 3 years 7 months with a non- parole period of 1 year 11 months.

6. In relation to Count 6 I indicate a sentence of 3 years 7 months with a non‑parole period of 1 year 11 months.

41. There will be an aggregate sentence in this matter of 5 years and 3 months, indicating a special circumstance finding - 55% of the sentence should be spent in custody. 

42. The non‑parole period will be 2 years and 10 months, commencing on 28 January 2021.  Fleming will be eligible for consideration for release to parole on 27 November 2023. 

43. There will be a parole period of 2 years and 5 months. It is to commence upon the expiration of the non-parole period on 27 November 2023 and expire on 27 April 2026.  The total sentence expires on 27 April 2026.  Whether the offender is released to parole will be up to the State Parole Authority. 

44. I direct that the Registrar, Wollongong District Court forward with the warrant a copy of the reports of Dr Yee and Dr Lee.

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Decision last updated: 02 September 2021