R v Flynn

[2019] NSWDC 806

District Court

New South Wales

Medium Neutral Citation:	R v Flynn [2019] NSWDC 806
Hearing dates:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 1 year 8 months. To be released at the expiration of 7 months 29 days upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914
Catchwords:	SENTENCING – Commonwealth offender – use of carriage service to groom child for sexual activity.   SENTENCING – Relevant factors on sentencing – offender’s contact as adult assuming identity of child – admissions – early plea – ill health.
Legislation Cited:	Criminal Code Act 1995 (Cth) The Crimes Act 1914 (Cth)
Cases Cited:	R v Asplund; Asplund v The Queen [2010] NSWCCA 316 Rampley v R [2010] NSWCCA 293
Category:	Sentence
Parties:	Steven Don Flynn (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Mr K Kanagasabapathy, Senior Federal Prosecutor, Director of Public Prosecutions (Commonwealth)   Solicitors: Morrisons Law (for the offender)
File Number(s):	2019/00024113

Judgment-Ex Tempore Revised

1. Modern technology allows for communication between individuals that could not have been imagined even ten years ago. Those communications are a significant benefit to all of us but they are, at times, subject to abuse. Parliament, on behalf of the community, has indicated that if a person uses a carriage service to groom a child with a view to engaging in sexual activity is a very serious crime: s 474.27(1) Criminal Code Act 1995 (Cth). So serious that a maximum penalty of 12 years imprisonment can be imposed. A carriage service is any form of electronic communication, telephone, internet, Snapchat, chat rooms, and the like.

2. It is often very difficult to detect offenders and very difficult as a consequence to protect children from predation by them. Accordingly, it is not at all uncommon for police officers using an assumed online identity to impersonate children in the hope that offenders can be flushed out, identified and dealt with. The ultimate aim of such activity is ensuring that specific offenders and others who might engage in such activity will be deterred from doing so. The main way offenders are deterred is by punishing them and punishing them severely by imposing terms of imprisonment.

3. In June 2018, this offender was engaged in online communications via a chat room, which was designed for, and used by, teenagers. He was using the username “guest.” He engaged in communication with a person who indicated that she was 14 years old. In fact it was an adult with an Assumed Online Identity (AOI). The offender asked for photographs of the AOI and made suggestive comments. At his suggestion, their communications moved from the chatroom to a Skype application. The apparent naivety of the offender is demonstrated by the fact that that Skype account used his name, “Steven Flynn.”

4. Once on Skype, he told the AOI he wanted photographs of her and made suggestions about sexual conduct. The AOI maintained the charade that she was a sexual innocent who had never done anything like what was suggested before. The offender offered to teach her and in a series of conversations, detailed what he, as an older man, would like to do to her. The conversations are set out in the agreed facts. It is not necessary that I go through them in any significant detail. It is however accepted that they were sexually suggestive and included a possible meeting at a motel in the Wollongong area. There were a number of conversations terminated by the AOI. The defendant sent messages trying to contact her without success.

5. I am prepared to accept, having reviewed all the material, that there is very little likelihood that this offender would have met the presumed child. Frankly, if I can add a personal comment; if there had have been a real child, I doubt whether any child would have been at all impressed by the person she was chatting to.

6. The offender was arrested on 23 January 2019. He was frank with the police. He made admissions. He did not deny the offending. He said he knew he was talking to teenagers and he should not have been. He gave some indication as to how long he had been doing so. He accepted that he thought he was talking to a 14 year old. He told police that he had no sexual interest in children, but he indicated that he was sorry and accepted his guilt. He appears to have been frank with the police and cooperated with them. He entered the plea of guilty at an early opportunity which was recognised by the Court.

7. The subjective material before me is also comprehensive. Ms Duffy, a respected forensic psychologist, interviewed the offender: exhibit 1, tab1. There is nothing to indicate that he was dissembling with the police or with her. She notes he is, on clinical assessment, “a reserved and passive person, relatively detached.” He has few close relationships and fulfils the diagnostic criteria of having a persistent depressive disorder.

8. Ms Duffy says that his shame and recognition of the stupidity of his actions might deter him from offending again. She noted however that while there is no other history of abhorrent sexual behaviour, if similar situations arise in the future, there will always be some risk that he will engage in fantasies and may act upon those fantasies. While Flynn would benefit from close supervision and referral to a psychologist, he is unlikely to benefit from any formal sex offender programs. Ms Duffy says that primarily, assistance is needed to address his underlying depression.

9. Flynn was not a well man when he went into custody. He has not fared well while he has been in custody. He has significant heart problems. He has diabetes. He was hospitalised for his diabetes and while there was infected with what is commonly called a ‘superbug’ and had an amputation to part of his foot. While all necessary care has been provided by Justice Health, he is clearly a person who is vulnerable in custody because of his age and health.

10. The material before me indicates that his wife of some years has her own physical and psychological problems, which I will not detail. She needs his help; and frankly, he needs her.

11. I have to have regard to the seriousness and nature and circumstances of the offence. While no child was in fact the subject of these charges, the offender was on the internet in a chatroom for children. He admitted having other contacts with children. As McClellan CJCL said in Rampley v R [2010] NSWCCA 293 at [37];

“The legislature provided for the offence to be committed in this manner in order to enhance their prospects of detection and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children.”

It is for that reason and taking guidance from the maximum penalty that a custodial sentence must and should be imposed: s 16A Crimes Act 1914 (Cth).

12. Turning to other matters set out in s 16A Crimes Act 1914 (Cth). The offender’s arrest and imprisonment has had a significant impact on him and his family. I am sure it will operate as specific deterrent on him from future offending. So far as the community is concerned, general deterrence is the main or paramount consideration in sentencings such as this: see R v Asplund; Asplund v The Queen [2010] NSWCCA 316. The community has to understand that to use internet chatrooms or Skype and the like to attempt to induce children into premature sexual activity, cannot and will not be condoned.

13. Having regard to the early guilty plea and to the material set out in the comprehensive written submissions that I have received from Mr K Kanagasabapathy, for Director of Public Prosecutions (Commonwealth) and Mr Fraser, for the offender, I have formed the view that a sentence - taking into account the plea - of one year and eight months is required. There seems to be little utility, given all that is set out in all the material before me, that the offender spend any longer in custody. I am sure that the lesson has been learnt.

ORDERS

14. You are convicted. You are sentenced to a term of imprisonment of one year and eight months without hard labour to commence on 23/1/2019. The custodial portion of the sentence will expire today. I direct you be released today at the expiration of seven months and 29 days of your sentence upon you entering into a recognizance pursuant to s 20(1)(b) Crimes Act 1914 (Cth), yourself in the sum of $400, with the following conditions:

1. to be of good behaviour for a period of one year from this date.

2. To appear to receive sentence if called upon to do so at any time in respect of any breach within the period.

3. To accept the supervision and guidance of an officer of New South Wales community corrections for a period of one year and obey all reasonable directions. Community corrections can delete supervision at their discretion.

4. You are to report to the Wollongong office of community corrections within seven days of today’s date.

15. I will make the forfeiture order as sought. It was not objected to.

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Decision last updated: 11 February 2020