R v Hartley-Kennett
[2021] ACTSC 88
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hartley-Kennett |
Citation: | [2021] ACTSC 88 |
Hearing Date: | 27 April 2021 |
DecisionDate: | 30 April 2021 |
Before: | Burns J |
Decision: | See [36]–[39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to solicit child abuse material – use carriage service to procure person under 16 years of age to engage in sexual activity – pleas of guilty – where alleged child victim was in fact covert police officer – whether underlying mental health condition contributed to offending behaviour – whether rehabilitation likely to progress in custody – consideration of imposition of consecutive sentences under s 19(5) Crimes Act 1914 (Cth) – consideration of objective of rehabilitation under s 16A(2AAA) Crimes Act 1914 (Cth) |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 16A(2AAA), 19(5), 20(1)(b) Criminal Code Act 1995 (Cth) ss 474.22, 474.26(1) |
Parties: | The Queen (Crown) Brett Hartley-Kennett (Offender) |
Representation: | Counsel D Bloomfield (Crown) S Whybrow (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 23 of 2021 |
BURNS J:
Brett Hartley-Kennett, on 4 February this year, you entered pleas of guilty in the ACT Magistrates Court to one offence of using a carriage service to solicit child abuse material, contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) (CC 8867/2020), and one offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity
(CC 12491/2020), contrary to s 474.26(1) of the Commonwealth Criminal Code. Each of these offences carries a maximum penalty of 15 years' imprisonment.
You appeared before this Court on 27 April 2021 and adhered to your pleas of guilty. Evidence was placed before me on that day, and I heard submissions from your counsel and from the Crown. Now it is my responsibility to sentence you for these offences.
A comprehensive agreed Statement of Facts was tendered at the sentence hearing and I will not recite the facts in full. It is sufficient to note that the evidence establishes that between 16 July 2020 and 22 July 2020, you sent communications via Snapchat to an online covert person using the pseudonym “Amy”. Amy purported to be a
14 year old girl. You sent those communications with the intention of procuring Amy to engage in sexual activity. This is the basis of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity
(CC 12491/2020).
The evidence also establishes that you solicited child abuse material from Amy by asking her to send naked pictures of herself to you on 16 July 2020 and 22 July 2020. This is the basis of the charge of using a carriage service to solicit child abuse material (CC 8867/2020).
Objective seriousness
In assessing the objective seriousness of the offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity, I take into account the following matters:
(a)First, that you were fully aware that Amy was only 14 years old.
(b)Secondly, that you were 27 years old and, as such, there was a very significant age differential between you and the victim.
(c)Thirdly, Amy repeatedly expressed her naiveté and inexperience in her communications with you.
(d)Fourthly, the tenor of your messages increased in intensity over time and progressively focused on procurement for sexual activity. In that regard, I have no doubt that you engaged in this conduct with a view to engaging in sexual activity with Amy.
(e)Fifthly, you sought to normalise your conduct and break down any resistance from Amy in your communications with her.
(f)Finally, you were arrested at the arranged meeting place where you were to meet Amy which was a relatively secluded location. I have no doubt that you were hoping to engage in sexual activity with Amy at that time.
Clearly, this is a serious example of this type of offending. It is nonetheless serious because Amy did not exist as a 14 year old girl but was, in fact, an adult police officer.
In assessing the objective seriousness of the offence of using a carriage service to solicit child abuse material, I take into account Amy's age and the age differential with yourself. I also take into account that there was not a single request for nude pictures by you on each of the dates in question, but rather you made multiple requests. This was also a serious offence but not objectively as serious as the offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity.
Subjective features
You are currently 28 years old, and you have no previous criminal convictions recorded against you. A Pre-Sentence Report prepared for the sentence hearing states that you had limited contact with your biological father during your childhood and you also have little contact with your teenage half-sister born from your father's subsequent relationship.
You were raised by your mother until you were three years of age at which time, she entered into a new relationship with a man who already had two children. Your mother and step-father have subsequently had two further children.
You reported that your childhood was positive, and you continue to have supportive relationships with your mother, step-father and siblings. You told the author of the Pre-Sentence Report that you were sexually abused by an uncle when you were a child.
You have been married for about eight years and your wife remains supportive despite the present offences. The author of the Report notes that you have a genetic condition called Klinefelter Syndrome which is associated with moderate intellectual delay. Despite learning difficulties, you completed Year 12 and went on to obtain a Certificate III in Horticulture and Landscaping. You worked in landscaping for approximately four or five years after leaving school before moving on to truck driving. Due to the present offences, you were dismissed from your previous employment as a tow truck driver, but you have since obtained employment as a truck driver for a family business.
There are no alcohol or drug issues that need to be addressed. You have been involved in prosocial activities such as water skiing, motorbike riding and spending time with your dogs. To some extent, your participation in these activities has decreased because of publicity relating to the present offences. You have received death threats as well as abusive material.
The Report notes that as a consequence of your Klinefelter Syndrome, you are unable to father biological children and you also receive testosterone treatment. You suffered from anxiety and depression as a teenager partly associated with the syndrome. After being remanded in custody for these offences, you disclosed suicidal ideation and you were placed under close observation. After being released on bail, you sought treatment from your General Practitioner and a psychologist. Your mother told the author of the Report that she was concerned that your syndrome may have affected your cognitive development and your ability to know right from wrong. I observe at this point that the evidence does not support the proposition that your condition affects your ability to know the difference between what is right and what is wrong.
The author of the Report noted that you accepted the allegations set out in the Statement of Facts and you expressed feelings of remorse and sorrow. You told the author that you did not believe that your syndrome was connected with your offending behaviour and that you did not usually seek out the company of younger people. You said that you were feeling down at the time of the offences and looked for attention elsewhere instead of from your wife and your family.
The author of the Report assessed you as at an average risk of sexual re-offending and a low risk of general re-offending. You have protective factors such as positive family relationships, stable accommodation, long-term history of employment and no financial issues. Your primary criminogenic risks are your mental health and the fact that you have committed sexual offences. It is noted that you have been proactive in seeking assistance and it is recommended that you continue with this plan. It is anticipated that after sentencing, further assessment will be required to enable referrals to be made for offence specific treatment to address sexual offending.
On your behalf, a number of testimonials from relatives and friends were provided. All of those who provided testimonials were aware of the present charges. All of the authors of these documents stated that these offences were out of character for you. You were described as a supportive and caring person who is devoted to family. You have a good work ethic and you have plans for the future, both with regard to your work and your family.
Some of those who provided testimonials expressed the view that you were under stress at the time of these offences which, together with the Klinefelter Syndrome, could have contributed to your poor judgement in engaging in these offences. The majority of those who provided testimonials stated that you have demonstrated remorse for your actions. A number referred to you having been ostracised and socially isolated from your former friendship groups as a result of these offences.
A report dated 15 April 2021 from Dr Cristian Torres, a clinical psychologist, was tendered on your behalf. Dr Torres is an eminently qualified psychologist who has experience with regard to assessing criminal offenders and, in particular, assessing sexual offenders. The Crown did not require Dr Torres for cross-examination. Dr Torres was not your treating psychologist, but you consulted him for the purpose of obtaining a report to use in the sentence proceeding.
Dr Torres' report is comprehensive. Some of the statements which you made to Dr Torres as set out in his report are not supported by the evidence set out in the agreed Statement of Facts. Dr Torres noted that you appeared to attempt “to portray an overly pathological picture” of your symptomology and history which he believed may be an attempt by you to explain or mitigate your offending behaviour. He nevertheless stated that you did not impress as inherently antisocial.
Dr Torres accepted that you have significant learning and socialisation difficulties and that in the past, you have suffered from anxiety and depression. During times of acute stress, you have also exhibited suicidal ideation. He noted a number of factors which would elevate your future risk of re-offending and a number of factors that are protective against that risk. Balancing those factors, Dr Torres expressed the opinion that you pose a low risk of re-offending sexually.
In his report, Dr Torres responded to a number of questions posed by your lawyers. He was asked for a diagnosis of any underlying mental health or cognitive issues experienced by you at the time of the offending and also at the present time. Dr Torres noted that the invalidity of some of your responses to the formal psychological testing and inconsistent reporting by you complicated formal diagnosis.
He stated, however, that you were experiencing a range of depressive symptoms, including fluctuating and intermittent low mood, occasional sleep disturbance, tiredness and negative cognitive rumination at the time of these offences and periodically over the course of your life. Dr Torres felt that these symptoms did not rise to the level of a clinical mood disorder and are more likely attributable to your Klinefelter Syndrome. Your symptoms were exacerbated by your arrest.
With regard to any possible connection between any underlying mental illness or condition and your offending behaviour, Dr Torres reiterated his assessment that you were not suffering a mental illness at the time of your offending. You were experiencing subclinical symptoms of depression and at times anxiety. However, he does not believe that these contributed to the offending. It was nevertheless possible that from time to time, you were cognitively affected to the point where your judgement was impaired, but he did not believe that this was the case with respect to your offending.
Dr Torres did not believe that your level of psychological symptoms were of such intensity at the time of these offences that they impaired your ability to make calm or rational choices. He also did not believe that your symptoms would have made you disinhibited or impaired your ability to appreciate the wrongfulness of your conduct.
Dr Torres expressed the opinion that your rehabilitative needs would be best managed by completing a structured cognitive and behavioural therapy-based sex offender intervention. He notes that you appear to have little rapport with your current psychologist and recommends that you seek an alternative clinician for treatment. While you will be able to access sex offender and basic group-based alcohol use interventions in a custodial setting, it is unlikely that you will be able to access any form of evidence based psychological treatment for depression or anxiety.
Dr Torres stated that your recent incarceration demonstrated that you are likely to decompensate psychologically if you receive a custodial sentence and he would expect your anxiety to significantly elevate in those circumstances. It is possible that you would become a significant suicide risk. Dr Torres expressed the opinion that a term of imprisonment is likely to weigh more heavily on you than on someone with normal health. He also expects that you will be likely to struggle significantly with predominantly group-based programs and interventions provided in a custodial setting. That is likely to render any rehabilitative effort ineffective at best and potentially harmful in that it is likely to exacerbate your anxiety and mood issues. Dr Torres believes that you would be capable of complying with a community-based order.
Consideration
On the basis of Dr Torres' report, I am satisfied that your underlying condition of Klinefelter Syndrome or any anxiety or depression arising from that syndrome did not contribute to your offending behaviour. I do, however, accept that your condition will make you somewhat more vulnerable in custody and that a custodial sentence will weigh more heavily upon you than it would upon a normal person.
I also accept that there is a risk that your mental state will deteriorate in custody, possibly to the stage where you may become a suicide risk. These types of risks are not uncommon with regard to people sentenced to terms of imprisonment and there is no reason to believe that measures cannot be taken to address those risks. I also accept that the nature of the programs available in custody or in the custodial setting are not likely to be suitable for you so that your rehabilitation is unlikely to progress whilst you are in custody.
By virtue of the provisions of s 16A of the Crimes Act 1914 (Cth) (The Crimes Act), I must impose sentences that are of appropriate severity in all of the circumstances. I take into account all of the matters that are set out in that section.
I note that you entered pleas of guilty to these charges at an early time and I am satisfied that your pleas have resulted in significant benefit to the community. I will reduce by 25 per cent the otherwise appropriate sentences for these offences because of your pleas of guilty.
My attention was drawn to s 19(5) of the Crimes Act which has the effect of creating a presumption that the sentences I impose with regard to the present offences should be served consecutively. It is agreed, however, that this presumption can be displaced if I am satisfied that a different sentence structure will result in a severity of sentence appropriate in the circumstances. In my opinion, the fact that these offences occurred as part of the one series of conduct by you is a cogent reason to displace the presumption created by the section. To impose entirely consecutive sentences would result in an aggregate sentence greater than that required to reflect your overall criminality.
My attention was also drawn to s 16A(2AAA) of the Crimes Act which requires me to have regard to the objective of rehabilitation. The section provides that in determining the length of any sentence or non-parole period, I am to have regard to the desirability of allowing sufficient time for you to undertake a rehabilitation program. Reference to the explanatory statement to the Bill which introduced that section suggests that it is directed towards ensuring, in appropriate cases, that an offender has sufficient time in custody to complete a sex offender program before their release. The explanatory statement suggests that the recommended time for undertaking such a program in custody is 18 months. In my opinion, the present offence does not call for or justify a sentence of 18 months in full-time imprisonment. I will instead impose conditions about rehabilitation and treatment options.
You have already spent 21 days in pre-sentence custody directly related to the present charges. For that reason, the provisions of s 20(1)(b) of the Crimes Act do not apply to the extent that it would be necessary to find exceptional circumstances before imposing a suspended sentence of imprisonment. It is nevertheless necessary to consider whether the period of time that you have spent in full-time custody is adequate to meet the requirements of sentencing. The report prepared by Dr Torres not unnaturally focused upon your rehabilitation needs but I must take a broader approach.
Deterrence of others who may be minded to commit similar offences is a very important consideration in sentencing for child sex offenders. People who engage in offences of procuring young people for sexual activity and who use carriage services to solicit child abuse material must expect significant punishment. The community expects that such punishment will be visited upon such offenders as part of the court's role in protecting children and young people from sexual abuse.
In the present case, as I am satisfied that it is unlikely that you will re-offend in a similar way, individual deterrence is not so important. I have determined that the objective seriousness of the present offences calls for a sentence involving a period of at least six months of full-time imprisonment.
Sentence
On the charge of using a carriage service to solicit child abuse material
(CC 8867/2020), I record a conviction and you are sentenced to six months' imprisonment commencing on 9 April 2021 and expiring on 8 October 2021.
On the charge of using a carriage service to procure a young person to engage in sexual activity (CC 12491/2020), I record a conviction and you are sentenced to 10 months' imprisonment commencing on 9 July 2021 and expiring on 8 May 2022.
I order that the sentence imposed on the offence of using a carriage service to solicit child abuse material be served by way of full-time imprisonment. I order that the sentence imposed for the offence of using a carriage service to procure a young person to engage in sexual activity be served as full-time imprisonment for a period of three months commencing 9 July 2021 and expiring on 8 October 2021.
There will then be a Recognisance Release Order permitting you to be released upon your giving self-security in the sum of $500.00 for a period of two years commencing 8 October 2021 and expiring 7 October 2023 with the following conditions:
· you are to accept the supervision of the Director-General responsible for ACT Adult Corrections or that person's delegate and obey all reasonable directions of such person;
· you are to undertake such assessments and programs directed towards sex offending as directed by your supervising officer;
· you are also not to travel interstate or overseas without the prior permission of your supervising officer.
[Speaking directly to offender]
The effect of the sentences which I have imposed is that you have been sentenced to 13 months' imprisonment of which the period from 9 April 2021 until 8 October 2021 is to be served by way of full-time imprisonment. The balance of the sentence is suspended with a Recognisance Release Order for a period of two years. I direct that the warrant accompanying you to the Alexander Machonochie Centre be endorsed that you are to be treated as a Prisoner at Risk in custody until such time as you have undergone a full psychological assessment.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
3
0
0