R v Givney

[2020] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

R v Givney [2020] NSWDC 353

Decision date:

10 March 2020

Jurisdiction:

Criminal

Before:

Payne DCJ

Decision:

Aggregate sentence of five years, with a non-parole period of three years three months

Catchwords:

SENTENCING – child sex offences – grooming child for unlawful sexual activity, Crimes Act 1900, s 66EB(3) – sexual intercourse with child 14-16, Crimes Act 1900, s 66C(3) – indecent assault person under 16 years, Crimes Act 1900, s 61M(2)

Legislation Cited:

Crimes Act 1900, ss 61M(2), 66C(3), 66EB(3)

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Regina (Crown)
Stephen James Givney (Offender)

Representation:

Counsel:
S Bouveng (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Geoff Archer (Offender)

File Number(s):

2019/62510

Judgment

1. In relation to this matter, Stephen James Givney comes before the Court in respect of three offences. The first offence is one of grooming child, s 66EB(3) Crimes Act 1900. The maximum penalty prescribed for this offence is imprisonment for 10 years with a standard non-parole period prescribed of four years.

Count 2, indecent assault person under age of 16 years (15 years), s 61M(2) Crimes Act. The maximum penalty prescribed is 10 years with a standard non-parole period of eight years.

And then count 3, sexual intercourse with a person between 14 and 16 years, namely 15 years, s 66C(3) Crimes Act. The maximum penalty prescribed for the offence is 10 years with no standard non-parole period prescribed.

2. Each of the offences, it is alleged, took place on 17 November 2018. Each of them were Table 1 offences and could have been dealt with summarily but as I understand it, this was not contended otherwise than to be a factor.

3. I convict him of these offences.

Factual Circumstances of the Offending

4. There was an agreed facts document and it states the offending included in that document is the messages.

“Prior offending and registered offender status

1. Stephen Givney (‘the offender’) was convicted in 2013 of one count of sexual intercourse without consent at Tamworth District Court. The victim in this previous matter was a 16 year old girl.

2. The offender signed a Form 4, pursuant to the Child Protection (Offenders Registration) Act 2000 on 31 July 2018. In relation to the offence of failing to comply with child protection obligations, which is on a Form 1, the conduct relied on is the failure of the accused not registering his contact with the victim.

3. At all relevant times, HW (the victim in this matter) was 15 years old.

Background

4. AW, the victim’s mother, met the offender in April or May of 2016 through a mutual friend, and they developed a close friendship. The victim also met the offender at this time.

5. The offender would go on family camping trips with the victim, and would visit the victim’s mother at their home. The victim and her [four] siblings [names omitted] would often go to the offender’s house to play Playstation with the offender.

Offences

6. Approximately two years after they met, the offender added the victim on the ‘Snapchat’ mobile phone application. The victim blocked the accused on Snapchat. The offender told her to unblock him, and she did. The offender then sent her photographs of him naked. These messages included a photo of the offender lying naked in bed, and a photo of the offender in the shower, which showed his penis. As a result of these messages, the victim blocked the accused on Snapchat again. The offender added the victim as a ‘friend’ on Facebook on 1 November 2018. The offender maintained a conversation with the victim on Facebook Messenger from 1 November 2018 - 22 January 2019. During this time the offender and victim regularly sent text messages to each other, regularly video-called each other. The offender also sent the victim a pornographic video featuring two unknown adult (Sequence 2).

7. These messages included the following:

4 November, offender: Brah yous should get naked and play with each other lol

5 November, offender: You look adorable with a beanie one! You looked cute swimming around the pool today

5 November, offender: I want you. I wanna go soon.

17 November, offender: Love you beautiful (followed by multiple love heart emojis)

17 November, victim: Love you too

17 November, victim: Come get me when im ready to go

17 November, offender: What happened to walking lol

17 November, victim: I’m too stoned and the cops are out

17 November, offender: lol

17 November, victim: Please baby x

17 November, offender: And what time will this be

17 November, victim: Not after 11

17 November, offender: Before 11?

17 November, victim: Yeh

17 November, offender: Ok

17 November, victim: Thanks

17 November, offender: Its ok

17 November, victim: X

17 November, offender: X

17 November, victim: Thumbs up emoji

17 November, offender: Wyd?

17 November, offender: You no im not expecting sex off you or anything when I ask you to come round I just like cuddling you

17 November, victim: Yeh I know

17 November, offender: Ok

17 November, victim: Get me a blanket

17 November, offender: Yes over on the lounge near the food cupboard

17 November, victim: Get it for me

17 November, offender: Why don’t you wanna sleep next to me?

24 November, offender: Forwarded a pornographic video to the victim, showing two unknown adults engaging in intercourse

25 November, victim: [x] said she wants you

25 November, offender: You 3 girls want me

25 November, victim: Well you only want me so im good

25 November, offender: That’s right

25 November, victim: [y] said wha about her?

25 November, offender: ????

25 November, victim: [y] said do you want her

25 November, offender: Still too young. She friend lol

25 November, victim: She said do you at least still want her

25 November, offender: In what way lol

25 November, victim: I meant like her

25 November, offender: As a friend lol

25 November, victim: I love you

25 November, offender: I love you too xo lol

6 December, offender: How is it? Come round now and suck my cock while ya going then X

6 December, victim: Maybe x

6 December, offender: Yeah right x

7 December, offender: I love you too x thanks for letting ya mum know I sent u a dick pic x

16 December, offender: Why you sending dick pics to [A] for?

16 December, victim: What? I don’t have a dick

16 December, offender: Your fucked since you send my dick pics to [A] I sent yours to [T]

16 December, victim: You’re a weak dog. I never sent em to [A]. Ya friend cunt. Shes a lieing fuck. I never sent ya dick to anyone! Omfg

21 December, offender: You is sexy

21 December, victim: All you

21 December, offender: Nah just you

21 December, offender: Why you sitting over there

21 December, victim: Cause theres no room over there

21 December, offender: On my lap lol

25 December, offender: I do want you but I cant fuck you … you know that

25 December, victim: So your just gonna love me but when ya wanna get ya dick wet you will call alice?

25 December, offender: No I didn’t even know she was here until I got our

25 December, victim: Ok so am I ever gonna be loved the way I love people or am I just gonna get fucked over everytime. Not aimed at you

25 December, offender: I love you the ay you want me too but its not we can have sex

25 December, victim: Weve already spoken about this, you said if we had sex it was to stay between us! Because you weren’t gonna lose james or get in trouble! Why is alice such a so called good person to fuck but then when it comes to someone fucking me they fuck and leave!

25 December, offender: Ill fuck you but if it goes any further then me and you … I will be pissed no one is to know

25 December, victim: Well clearly I aint gonna do that to you. I don’t wanna see anything happen to you and james! And if alice keeps posting on your story on snapchat clearly she goes through your phone and if she reads our messages ill be so angry!

25 December, offender: She hasn’t never let her it … she was on snapchat and that was it

25 December, victim: Yeh ok. I love you x

8 January, offender: So whens ya bf get home lol

9 January, victim: What bf

9 January, offender: The 1 on Instagram

9 January, victim: You don’t want me. Someone might as well

9 January, offender: Right then so I kissed you today for no reason

9 January, offender: Love you cracker

9 January, victim: Love you too shithead

8. The final message between the victim and the offender is on 22 January at 07.07.

9. BA, a friend of the victim’s mother, saw the victim video calling Stephen for extended periods of time, and [she] always wanted to go around to Stephen’s house.

10. DM, the offender’s mother, had seen [the victim] ‘sit beside Stephen in our lounge room and put her legs on him. She would do it every time she was at our house. I have seen [the victim] go into Stephen’s room and I would tell her to get out of his room … I have seen [the victim] try and kiss Stephen at our house last year. She tried to kiss him on the lips. Stephen gave her a peck on the lips back.’

11. On Saturday 17 November 2018, the victim went to the offender’s house in Tamworth. The victim had an argument with her mother earlier that day, and a window was smashed. Police attended the residence as a result of the argument, and the victim’s mother arranged for the victim to stay at the offender’s house that night. Police took the victim to the offender’s house at approximately 6.00pm.

12. The offender lived with his mother, DM, and his infant son. At some time after the victim arrived, the offender started touching the victim, so the victim went and sat in a room with DM. The victim had dinner, and then played with the offender’s son and on the Playstation. The offender then went and had a shower and put his son to bed. The victim went and sat back in the loungeroom at this time.

13. After the offender had a shower, the victim was sitting on the lounge and fell asleep. When she woke up, the offender was rubbing her on the vagina with his hand, both inside and outside her clothing (Sequence 3). During this, the offender was talking to the victim, trying to get her to sleep with him. The victim then got up and said, ‘Can I have a smoke?’

14. After she smoked a cigarette, the victim asked where she was sleeping, and the offender said she could sleep in his bed. The victim fell asleep on his bed, with the door open. The victim’s best friend then called the victim. The victim was lying on her back, and was fully dressed, wearing a jumper and jeans. The offender came into the room and asked who the victim was on the phone to. The victim said [name omitted]. After this conversation ended, the offender took a condom out of the drawer. The offender took his clothes off. The offender put the condom on his penis. The offender then laid on top of the victim. The victim tried to move but could not, as the offender was preventing her from doing so. The offender pulled the victim’s pants off. The offender then put his penis in the victim’s vagina for approximately 20 seconds, until he ejaculated. During this sexual intercourse, the victim kept trying to push the offender off her. After the offender had ejaculated, the victim rolled to the other side of the bed and told him she was sleeping in the lounge room. The offender then got up, put his pants on and went to the kitchen and put the condom in the bin (Sequence 5).

15. The offender texted AW, ‘Do you wanna put up with HW yet?’ at 11.50am on 18 November 2018. AW replied, ‘I’ll pick her up soon’ at 12.04pm.

Investigation and Arrest

16. On 24 February 2018, Detective Senior Constable Valette attended [address omitted], South Tamworth, with Detective Senior Constable Lye for the purpose of conducting an inspection pursuant to s 16C of the Child Protection (Offenders Registration) Act.

17. Detective Senior Constable Lye inspected the offender’s phone. A decision was made that the phone may contain inappropriate material, and was seized.

18. The victim participated in a JIRT interview on 25 February 2019. The offender was arrested on 25 February 2018.

19. In the ERISP, the offender stated he was ‘pretty close’ with AW, and sees her once or twice a week. He admitted he had sent the victim a photograph of his penis in the shower, and that HW had stayed at his house late last year, but stated she had slept in a swag in the lounge room.”

5. I do note that at para 14, the following is found: “During this sexual intercourse the victim kept trying to push the offender off her.” That particular part of the facts is not pressed as an aggravating feature.

6. In addition to the offences I have just stated, Mr Givney asks me - and he adhered to his plea in this Court - to take into account the offence on the Form document. That offence is that he, at South Tamworth, between 1 April 2018 and 26 January 2019, failed to comply with child reporting obligations. I will take that into account when sentencing him, as requested by the Crown, to the offence contrary to s 66EB(3).

7. The maximum penalty and the standard non-parole period prescribed in relation to two of the offences remain guideposts. Brief oral submissions were made but in addition, the Court had the benefit of written submissions from the Crown and written submissions from the defence and I have taken those into account.

8. The following submissions were made about the level of objective seriousness. In relation to the defence, it was said all offences fell below the mid-range. The Crown, on the other hand, said the s 66EB(3) offence fell just below the mid-range, s 61M(2) above the low range but below the middle range and s 66C(3) in the middle range . These submissions were quite close from both sides of the bar table.

9. In my view, the offence contrary to s 66EB(3) is just below the middle range, s 61M(2) above the low range but below the middle range. Section 66C(3), the Crown says, I have already noted, middle range, Mr Bouveng, below the middle range. Given the age of the complainant, I accept it is just below the middle range.

10. In respect of the grooming offence, Mr Bouveng noted that the images sent were of himself and a video. The grooming offence was between 1 April 2018 and 22 January 2019, so this offence spanned the period from before and indeed after counts 2 and 3, which are said to have taken place on 17 November 2018. This is a considerable period of time, 1 April 2018 to 22 January 2019.

11. I am saying these matters in relation to why it is that I have made the findings I have just stated. At page 2, the Crown made a series of submissions in relation to each of the offences and I have taken them all into account. The Crown’s submissions were as follows:

“Objective Seriousness

3.1 Section 66EB(3) - groom child for unlawful sexual activity

The Crown submits that the offending in relation to this charge falls just below the mid-range of objective seriousness for charges of this nature. The Crown makes this submission on the following bases:

From the commencement of the relationship, the offender was aware that the complainant was 14 years old.

The contact between the offender and victim escalated to become sexually explicit.

The offending conduct continued for a period of over six months, being mid-2018 to early 2019. The Crown submits that this represents a sustained course of conduct.

The volume of messages is significant.

The age difference between the offender and the complainant is not insignificant, and certainly represents a gap in emotional intelligence.

The offender has taken advantage of the complainant’s emotional immaturity.

The motive of the offender in engaging with the victim in this way is patently clear. He intended on having sexual intercourse with her knowing that she was 14 and not capable of consenting to having sexual intercourse with him.

3.2 Section 61M(2) - Indecent assault

The Crown submits that this offending falls above the low-range but below the mid-range of objective seriousness. The Crown makes this submission on the following bases:

The assault proper was made on the inside and outside of the victim’s clothing, over her vagina area.

The victim was asleep at the time, and woke up during the assault.

The offender continued to attempt to persuade the victim to have intercourse with him.

3.3 Section 66C(3) - Sexual intercourse person 14-16

The Crown submits that this offending falls at the middle of the range of objective seriousness. The Crown makes this submission on the following bases:

The assault occurred in circumstances where the accused removed his clothes and placed a condom on his penis, before laying on top of the victim.

The assault involved penile-vaginal penetration for approximately 20 seconds.”

12. The offender was born in March 1989 and was aged 29, and the complainant aged between 14 years and 10 months and 15 years and five months, during the offending. She was born in 2003.

13. Mr Bouveng said that the following aggravating feature is present in relation to count 1, the offence involved a series of acts. I have not elevated this to a feature of aggravation. Why this is the position is that I would have thought that nearly all grooming offences require a series of acts. So I put that to one side.

14. He then contended for, quite correctly, mitigating features. A plea of guilty was provided by the offender and I have already indicated that it was an early plea and he is entitled to a 25 percent discount. But it was not put by Mr Bouveng and clarified today that there is any evidence of contrition and remorse, other than the plea, but no evidence which would give him the benefit of the mitigating feature found in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

15. He has been in custody since 25 February 2019 and the sentences I intend to impose will date from that date.

16. The Crown pointed out, quite correctly, that in relation to the offending, even though the complainant was at the higher end of the range, in relation to all of the counts, because each of them have an element of under 16, and she was, as I said, between 14 years and 10 months and 15 years and five months, that there was certainly a gap in emotional intelligence between the prisoner and the victim.

17. He is not a person of prior good character. Indeed there is an existing offence on his record, sexual intercourse without consent, the offence date was 7 May 2012 and the Crown annexed the statement of agreed facts. He came forward for sentence at Tamworth District Court on 28 February 2013, 22 months suspended on entering a bond pursuant to s 12 and accept the supervision of the Probation and Parole Service, comply with all reasonable directions, to undergo psychiatric/psychological counselling as directed, advise the Registrar/Clerk of any change of residential address, he not be obliged to complete any sexual offender programs but that he be available for one to one counselling.

18. That resulted in the matter on the Form because he was placed on the sex offender register and that is why, as I have stated, the offence on the Form at South Tamworth between 1 April 2018 and 26 January 2019, failed to comply with child reporting obligation.

19. After a deal of consideration by the parties, they came to the view and jointly submitted that even though he was on the sex offender register, this was not a feature of aggravation or made the offending more serious.

20. I have the benefit of a psychological report which I have read. That report is dated 19 December 2019. At 38 the following is found;

“In sum, Mr Givney is assessed as being Above Average risk of being convicted of a further sexual offence in the next five years. The higher risk factors in this case primarily relate to his attitudes towards his offending, his apparent attraction to teenaged girls, limited insight into his problems and difficulties establishing and maintaining healthy intimate relationships. These factors would be amenable to treatment but Mr Givney will need support to recognise his need to change his behaviour through intervention.”

21. Matters of risk are difficult to make but I do take into account those factors that have been identified by the psychologist. In my view, his prospects for rehabilitation must be guarded.

21. In relation to whether he will or will not re-offend, despite what is found in the psychological report, I do not make a finding in his favour that he is unlikely to re-offend pursuant to s 21A(3)(g) Crimes (Sentencing Procedure) Act, but I certainly do not make a finding that it is likely that he will. In relation to that matter, the Court is neutral.

22. I should have said earlier, weight must be given to the offence on the Form. I have noted his age. His background is given in the psychological report and I will take that into account. He has had periods of both employment and unemployment and the longest he has held a job has been for one year. In particular, it cannot be said that the matters found by the psychologist and noted at pages 12 to 13 commencing with sub-para (a), finishing at sub-para (n), bode well for Mr Givney:

“On the RSVP, the following factors are seen to increase Mr Givney’s risk of sexual re-offence:

(a) There is some indication that Mr Givney’s offending is chronic in nature as there have been two occurrences over seven years (despite being convicted, sentenced to imprisonment and placed on the Register after the first offence);

(b) Mr Givney engaged(sic) was in a position of physical and psychological power over the victim of his previous offence, given her level of intoxication. He psychologically coerced the victim of his second offence, grooming her through behaviours such as sending her sexualised messages and telling her that she could not tell anyone about their relationship;

(c) Mr Givney has engaged in extreme minimisation of his offending behaviour, stating that both girls invited him to have sex with them;

(d) He presents with attitudes that condone his behaviour, such as his statement that ‘the law views it differently’ to him;

(e) While Mr Givney presents with some awareness of his problems with sex, as well as appropriate insight into his past problems with depression and substances, he has limited insight into his offending and interpersonal problems or his need for intervention in these areas;

(f) Mr Givney described a history of difficulties with emotional coping, such as self-harm and substance abuse, and he also identified sex as an emotional coping strategy for him;

(g) Mr Givney has mental health difficulties resulting from his experiences of child abuse;

(h) Although he denied an attraction to teenaged girls, this seems unlikely given his history. This attraction is considered somewhat deviant, given his current age;

(i) Mr Givney has a history of problematic substance abuse, although this does not appear to be recent;

(j) He also has a history of suicidal ideation and self-harm;

(k) Mr Givney’s relationship history was indicative of problems with intimate relationships, such as the ‘on-and-off’ relationship with his only serious girlfriend, his lack of sexual satisfaction in that relationship and his belief that entering into a new relationship immediately upon release will be a protective factor for him;

(l) He has a history of problems with employment, although this does not appear to have been a problem in the year prior to his arrest;

(m) Mr Givney does not view his sexual offending as inappropriate and this is likely to impact his engagement in treatment;

(n) Mr Givney offended while on the Register, which suggests that supervision is not sufficient to deter further offending.”

These matters, which have been summarised in that part of the report that I have stated at 38, raise concerns.

24. General deterrence must be a feature of this sentencing exercise and certainly specific deterrence. His record is one which, even though the other offence took place back in 2012, disentitles him to leniency. I have already addressed remorse. Prospects for rehabilitation, will or will not re-offend or address the matter of re-offending. I have already emphasised a requirement for general deterrence and specific deterrence. I have noted that the fact that these matters could have been dealt with summarily is a feature, but one of very minimal weight.

25. The community views these offences with abhorrence, quite correctly, and the courts should be vigilant in protecting young persons from behaviour of this type.

26. In my view, nothing other than a full-time custodial sentence is appropriate. The principle of totality is of significance in this case and counts 2 and 3 were committed at the same time.

27. There is no victim impact statement. Having said that, one of the principles of sentencing found in s 3A Crimes (Sentencing Procedure) Act is to recognise the harm done to the victim of the crime and the community. Further, to make the offender accountable for his actions and to denounce the conduct of the offender. All those matters are real considerations in this case.

28. The Court in every case must bear in mind the maximum penalties prescribed and the particular facts and circumstances, both objective and subjective, of the case and the requirement for general deterrence. The principles of totality must be given consideration to and in relation to that principle, the matter of concurrence and accumulation.

29. The effective non-parole period which will be imposed in this case is the one which, in my view, appropriately reflects the objective seriousness of the offending, the requirement for general deterrence and the subjective matters. I have, I repeat again, given careful consideration to the principle of totality.

Sentence

30. The offender is convicted. An aggregate sentence will be imposed in this case. I have given consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I state the following indicative sentences for each offence:

Count 1, attaching the offence on the Form, four years three months, reduced by 25 percent is three years two months eight days, rounded to three years two months, with a non-parole period of one year and 11 months.

Count 2, four years, reduced by 25 percent is three years, with a non-parole period of one year and 10 months.

Count 3, four years and nine months, reduced by 25 percent is three years six months 23 days, rounded to three and a half years.

I impose an aggregate sentence of five years, commencing on 25 February 2019 and expiring on 24 February 2024. The aggregate non-parole period is three years three months commencing on 25 February 2019 and expiring on 24 May 2022.

31. I make a finding of special circumstances. The allowance for special circumstances is six months. In my view that allowance is appropriate. In my view, that allowance is the correct moderation of the ratio in the circumstances of this case. You will be eligible for consideration for release to parole on 24 May 2022.

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Decision last updated: 06 July 2020