R v Glenn Kelvin SMITH

[2007] NSWDC 315

CITATION:	R v Glenn Kelvin SMITH [2007] NSWDC 315
HEARING DATE(S):	25 October 2007 1 November 2007
JUDGMENT DATE:	1 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment with a non parole period of six months and head sentence of one year and three months.
CATCHWORDS:	CRIMINAL LAW - Sentence - Using a child of or above the age of 14 for pornographic purposes - Internet - Vulnerability
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown Glenn Kelvin Smith
FILE NUMBER(S):	07/31/0271
SOLICITORS:	NSW DPP Colin A Hogan & Co

SENTENCE

1 HIS HONOUR: Glenn Kelvin Smith appears for sentence today having pleaded guilty at an earlier stage to an offence against s 91G(2)(a) of the Crimes Act. That is an offence of using a child of or above the age of fourteen for pornographic purposes. A child is defined a person under the age of eighteen. The complainant in this case was sixteen years of age whilst the offender was fifty-seven.

2 The complainant lived in the United States of America and the offender lived at Marks Point. They met over the internet, after the offender established contact with the complainant when they were both in an internet Christian chat room. They private messaged each other and a relationship developed. This relationship included them corresponding with each other through the use of email, SMS messages, letters and they also made telephone calls to each other. The relationship commenced around 8 October 2006 and continued until 10 February 2007 when the relationship was reported to police in the United States of America by a friend of the complainant’s.

3 Investigations have revealed that the relationship the offender and the complainant became a sexual one quite quickly. The statement of facts records that it was the offender who began sending photos of himself, naked and masturbating, to the complainant before asking her to send similar photos of herself in response to this request. She sent about three hundred digital photographs via the internet. The statement of facts also records that the offender had quite specific requests too. He asked her not to insert objects into her vagina because he wanted to be the one to take her virginity and so he asked her to insert things into her rectum. At his request she did this and sent him photographs of what she was doing.

4 Twelve photographs were tendered during the sentencing proceedings. They are photographs of a most graphic and intimate nature.

5 The offender is a fifty-eight year old disability pensioner, he clearly suffers from a significant degree of hearing loss. At the time he committed these offences he was living a somewhat isolated life, spending most of his time surfing the internet or watching television.

6 In the course of his evidence before me there was at least a suggestion that the offender considered that the complainant of these offences was partially to blame for their commission. But Mr Hogan who appeared for the offender asked me to sentence the offender on the basis that the responsibility for the offence was solely the offender’s.

7 At the conclusion of the first day’s hearing of this matter I raised the issue as to whether there should be a presentence report, specifically addressing the offender’s suitability for community service and periodic detention. That report has now become available. The offender is suitable for neither.

8 But of more importance to the present issue is what the offender told the Probation and Parole Service. In complete contrast to the statement of facts tendered to me, without objection from Mr Hogan, the offender now seems to suggest to Probation and Parole, at least, that he was a victim in the matter. He denies that the sexual interaction was initiated by him and he denied that he received any sexual pleasure from the interactions. Given that the statement of facts records that the offender sent photographs of himself naked and masturbating, I completely reject the suggestion that the offender did not receive any sexual pleasure from the interactions. If he in fact was not receiving any sexual pleasure from the interactions, one wonders why the complainant would have continued to send photographs to him. As I have mentioned she sent about three hundred digital photographs via the internet.

9 I will read perhaps the most important paragraph of the presentence report in full:

“Mr Smith engaged in victim blaming during the interview in that he reports it was the victim that instigated the sexual photos and actions. He denies part of the police facts in that he was masturbating or requesting that she engage in sexual acts on his behalf. He sees himself as a victim, citing that he “was used as much as he used her”. He reports he “used” her for friendship as he was lonely and depressed. Although claiming to regret his actions, he appears more motivated by being arrested and being denied a future with the victim.”

10 As Mr Hogan fairly conceded when the matter was before me again today there is much in that presentence report that does not help his client. It reveals a complete failure on the part of the offender to appreciate the seriousness of his conduct.

11 He has taken advantage of the complainant’s youth and naivety. The naivety of the complainant was obvious, she believed that she would eventually leave home, travel to Australia and marry the offender with whom she would have many children. The offender exploited the complainant’s naivety for the purpose of his own sexual gratification. There was a significant imbalance in the level of maturity of the two people involved.

12 During the course of submissions I confessed to being somewhat surprised to learn that although it was not an offence for two sixteen year olds to have sexual intercourse, it was an offence if one of them took a photograph of that activity. Such are the curiosities of the Legislature’s attitudes towards the criminal law. But a case such as this demonstrates the vulnerability of sixteen years to exploitation by older men who would prey on them for their own sexual gratification. In the offender’s favour is the circumstance that he was honest with the complainant about his age. He did not pretend to be an eighteen year old by any means. But against that is the evidence suggesting that the offender acquiesced in the young girl’s fantasies, which involved her marrying him and having children with him.

13 The offender pleaded guilty at an early stage so I will discount the sentence I would otherwise have imposed by twenty-five percent, to reflect that circumstance. A plea of guilty can sometimes be evidence of remorse as well. But in circumstances where, as here, the Crown case is overwhelming, a judge often looks for other evidence of remorse before the offender is entitled to an appropriate reduction in sentence. I am satisfied that the offender is sorry because his misconduct has been revealed, he is sorry that he will be punished, he is sorry that he will not be able to continue his relationship with the victim, but I am not satisfied, on the balance of probabilities, that he is sorry in the sense that he recognises just how wrong his behaviour was. Indeed, I am satisfied that that is far from the case.

14 The offender is not in good health, he suffers from depression, chronic anxiety and emphysema. Related to those illnesses was the circumstance that he was lonely at the time he committed these offences. I recognise that these illnesses, together with his substantial hearing deficit, will make any time in custody much harder than would otherwise be the case.

15 One very important factor working in the offender’s favour, is that this is the very first offence he has ever committed. There is a substantial bank of good character on which he is entitled to rely. It tends to suggest his otherwise good character and also to suggest that his prospects of rehabilitation are good. To the contrary, however, are the contents of the probation and parole presentence report, in particular the paragraph that I have outlined. In those circumstances I cannot find that he has good prospects of rehabilitation. It may well be that he has good character in every other respect of his life, but in so far as he encouraged the sixteen year old victim in this case, to take most intimate and graphic photos of herself for his sexual gratification and fails, very importantly, to recognise that she was entirely blameless in these matters, then the offender’s character suffers from a significant deficit.

16 Another factor however, working in his favour, is the fact that despite the police seizing his computer and searching it, no doubt, there appears to have been no evidence of him having any other internet relationship with another child. This was, thus, not a man who was trawling the internet for young girls prepared to send him intimate photos of themselves.

17 So this case has two significant features which differ from those which appear in the press regularly: they are that the offender was honest with the young girl about his age; and that he was not, as I have said, trawling the internet for similar young girls. However, this is a case where the offender exploited the young girl for his sexual gratification and fails to realise that what he did was seriously wrong.

18 In such circumstances a sentence which would act as a significant personal deterrent is required. The contents of the probation and parole report suggest very much that the offender does not understand or does not believe that what he did was wrong. The attitude of the offender expressed in the probation and parole report is significantly different to the attitude he expressed in evidence to me when this matter was first before the Courts.

19 Mr Hogan concedes that a custodial sentence is required, but asked that I impose a suspended sentence. That does have some attractions in that it could act as a deterrent to the offender from committing further offences, knowing that if he does, he will go to full time custody. But I am satisfied that suspension is inappropriate. I am satisfied that the offender needs to be punished for what he has done and that suspending a sentence of imprisonment is insufficient punishment to reflect the objective gravity of the offender’s conduct and to reflect the very great need to personally deter the offender from future offences of this nature.

20 The order I make is therefore this. The offender is sentenced to imprisonment. I set a non parole period of six months to commence today. It will expire on 30 April next year and I set a head sentence of one year and three months. The offender is to be released to parole on 30 April next year.

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