R v Hastings Fredrickson (No 1)

[2015] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:	R v Hastings Fredrickson (No 1) [2015] NSWDC 114
Hearing dates:	18 December 2014, 9 February
Date of orders:	09 February 2015
Decision date:	09 February 2015
Jurisdiction:	Criminal
Before:	Judge P Lakatos SC
Decision:	Convicted
Catchwords:	Sentence – 3 counts; use carriage service in a way that a reasonable person would regard as menacing, harassing or offensive – s.474.17(1). Criminal Code (Commonwealth)
Legislation Cited:	Criminal Code (Commonwealth Crimes Act (Commonwealth)
Cases Cited:	R v Previtera [1997] 94 A Crim R 76, Dasreef Pty Ltd v Hawchar [2011] HCA 21. Monis v R (2013)87 ALRF 340, HCA 4 Director of Public Prosecutions v Collins [2006] 1WLR 223, 4 All ER 602 R v Deblaquiere and McDonald [2013]
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Hastings Frederickson
Representation:	Counsel: P W Neil SC J Pappas o/c
File Number(s):	2013/00355326
Publication restriction:	No

JUDGMENT

1. The offender Hastings Fredrickson who was born in 1973 making him 41 years old, has pleaded guilty to three counts contrary to s 474.17 subs (1) of the Criminal Code (Commonwealth). They are that at 2.20am on 6 July 2010 and at 2.02pm on 8 July 2010 and at 12.55am on 26 July 2010, used a carriage service, namely a computer email system, in such a way that reasonable persons would regard that use as being menacing, harassing or offensive. The maximum penalty imposed by the Code is three years imprisonment in respect of each of those counts. It is accepted by both parties that the offender entered his plea of guilty at an early time and accordingly, subject to the strength of the Crown case, has facilitated the course of justice in that regard, that should be taken into account. Furthermore, it is accepted that he has spent no time in custody in relation to each of these matters.

2. The agreed facts of the offences are as follows. In 2010 the offender was employed as a civilian contractor with Thales International, a defence company at HMAS Kuttabul at Garden Island in New South Wales. As part of his employment he was issued with a laptop computer and a company email account. At the same time, he was serving as a member of the Australian Army Reserve, holding the rank of Warrant Officer Class 2 and had been issued with an Australian Defence Force, Defence Restricted Network email account. At the time of the offences, the offender was part of a group of male persons that called themselves the Jedi Council. This was a social group with a rank structure, written orders and a disciplinary system. I interpolate to say that Mr Pappas who appeared for the offender contested that particular latter description, but in my view, not much turns upon it. This group contained at least ten serving members of the Australian Defence Force from the rank of Lance Corporal to Lieutenant Colonel who communicated predominantly via the email accounts which I have specified. The offender emailed a number of emails to the Jedi Council regarding his sexual exploits.

3. On 7 May 2010, the offender was in the Virgin Australia Frequent Flyer lounge located at Tullamarine Airport in Melbourne. He had been to Melbourne as part of his employment with his then employer. At the lounge the offender engaged in conversation and exchanged contact details with a female person who he later referred to by the code name “Melbourne Mistress/Melbourne Moll#5”. Over the coming days the offender and this person engaged in conversations via email and the telephone. Over coming months he travelled to Melbourne where he engaged in a consensual sexual relationship with that woman. She was one of the victims of these offences and I will turn to her victim impact statement shortly.

4. During the course of the sexual relationship between himself and the Melbourne woman (I will refer to her as Ms M5, without I hope any disrespect to her,) the offender set up a camera and filmed their sexual acts. She did not know that the acts were being filmed and did not consent to the filming. The offender sent images taken from the filmed footage of the sexual activity to the members of the Jedi Council. Ms M5 did not know and did not consent to the images being emailed as stated. The emails also had references to other females. The facts, particularly pertinent to the first offence were that on 6 July 2010 at 2.20am, the offender sent an email to the members of the Jedi Council, a copy of that email is annexed. The email was entitled “the footage” with an attachment to the email entitled “The Wolf of Woolloomooloo sign off June 2010.doc”. The email was sent to four ADF email addresses and included discussion of the joy of re-watching the footage of a sexual activity with a female person that the offender had met at the Melbourne airport and the fact that he will no longer be able to email as frequently as his wife is about to give birth to their child. The email contained a discussion and description of the offender’s sexual exploits during the period 24 June 2010 until 1 July 2010. It contained a description of a threesome that the offender had with another female whose Christian name is given and a further female as well. The email also attached an image of the lady in Melbourne, the one I referred to as M5, naked together with 15 colour screen shots from a covertly recorded video of the offender engaging in sexual activity with her.

5. The facts pertinent to the second offence were that on 8 July 2010 at 2.02pm the offender sent an email to the members of the Jedi Council, that email is also annexed to the facts. The email was titled “Interesting Menu” and attached two pictures of a senior female officer of the Australian Defence Force obtained from an Australian Defence Force recruiting video, available on the ADF website. The email detailed the offender’s desire to meet the relevant officer and to engage in sexual activity with her. The email also attached seven colour screenshots from a covertly recorded video of the offender engaging in sexual activity with Ms M5.

6. Finally the facts pertinent to the third count are that on 26 July 2010 at 12.55am, the offender responded to an email to members of the Jedi Council. The email was titled “re Robbie’s latest exploits, photos only”. That email has also been annexed to the facts. The email discussed the sexual exploits of various members of the Jedi Council, it also attached seven photographs of colour screenshots from the covertly recorded video of the offender engaging in the sexual activity with Ms M5 and photos of two other women.

7. On Friday 10 September 2010, the offender was subjected to an interview with Thales management and was immediately terminated from his employment. His security clearances were revoked and his laptop secured. In terms of his antecedents, the agreed facts are that he is 41 years of age and resides in Queanbeyan. He is not criminally recorded. He was arrested on 25 November 2013 and released on conditional bail. He has spent no time in custody and he declined to participate in a record of interview with the police.

8. Mr Pappas who appeared for the offender relied upon a quantity of material, the most relevant being evidence given by the offender himself and also a psychological report and oral evidence by Dr Kenneth Byrne a psychologist from Canberra. Dr Byrne’s report is dated 14 November 2014 and in summary is as follows. He conferred with the offender on two occasions for a little under five hours. He concluded:

“This man suffered a severely disrupted childhood, the details of which are outlined in appendix 1. This has caused him to have a style that continually tries to make himself look better to others and particularly to make himself look more masculine. He is overconfident at times to the point of being grandiose.”

9. Before I continue with a summary of Dr Byrne’s report, I should interpolate as follows. Both victims, whose names are suppressed, both composed and read to the court victim’s impact statements. I do not propose at length to go through those victim impact statements but those statements were provided to the court pursuant to the provisions of s 16AAA and following which provisions permit the court to take into account matters in a victim impact statement. The first statement of Ms M5 indicates that she was then 32 years of age, she speaks of the trauma she has experienced as a result of the disclosure of this material, she speaks of wishing to have a normal life and relationship but being devoid of trust of persons, given the breach of trust involved in this offence. She spoke about previously being a normal happy outgoing person but now is struggling in most aspects of her life. She spoke of suffering severe distress, being extremely upset, anxious, stressed and angry. Angry at what the offender did and angry at what has happened to her. She records the fact that she has had nightmares and loss of sleep, she has also had issues with her own security. She became self-critical and questioned her own self-worth. She remains most concerned over what her work colleagues will think if news of what happened reached them, she says she felt stupid because of what happened to her and has almost lost complete trust in men. I do that very much in summary without belittling the significant impact it has had on the first victim.

10. The second victim is a young woman who has two daughters aged 6 and 8. She speaks of various psychological impacts including the need to see a psychologist and psychiatrist. I accept that at face value although I note of course that no medical material was placed before the court and I simply record that that is what she has said. She is undertaking tertiary studies, she again finds herself in a very similar situation both as to her mental wellbeing and her personal circumstances as the first victim. Most importantly she writes as follows and in my view this sums up the extremely serious effect this has had on both victims. She writes:

“Most importantly I am a woman. I am entitled to engage in sexual relations without fear that my conduct in the bedroom is shared to a large quantity of strangers and used as a way to demean and degrade me. As a woman, if you share your body with a person, you are putting trust in them that they will not do you harm and although I have not completely undergone any physical trauma as a result of the crime, I have suffered a tremendous amount of emotional trauma. Women are not objects for you to play around with, we are the bearers of your children, we deserve nothing less than respect, honour and value in the world”.

11. In my view that eloquently sets out what these women have felt and what they have suffered. Their trust has been betrayed, what they thought was an affectionate and consensual private encounter, was made public to a group of Army officers and ultimately made public once these offences became known.

12. In considering those victim impact statements I need to record the following matters which bear upon how they should be taken into account. Firstly, in accordance with New South Wales authority, and I am referring particularly to R v Previtera [1997] 94 A Crim R 76, Hunt J as his Honour then was, indicated that the consequences of the crime upon the victim directly injured by it, are always relevant to sentencing, the offender is part of the objective circumstances of the crime and in appropriate cases, to the aggravation of those offences. In considering the effects upon both victims, I note the following matters. Both victims were adults, both engaged in consensual sexual activity with the offender, neither of them knew or consented to being filmed or photographed and neither of them knew or consented to the dissemination of the photographs. The fact that the situation became public resulted from the material being located on the offender’s work computer. Indeed it was never intended, as I understand the facts, by the offender or the other members of the group, to widely publish that material outside the circle of that group. The significant effect on the victims resulted from the dissemination of that material in a public forum because a private dissemination to the group would, in the ordinary course of events, not have been known to the victims. Accordingly, the significant and prejudicial adverse effect of the offences came about not from the use of the carriage service but the coming to light of the offending. In this sense the impact to the victims came about as an indirect result of the conduct, not as a direct and intended one. In my view it is proper to note those matters in balancing the effects on the victims.

13. Returning to Dr Byrne’s report, he also noted as follows:

“Besides a terribly damaged self-image, he the offender compensated for this, that is his over-confidence and grandiosity through 20 years of military service where by all accounts, he performed quite adequately. As a civilian without the badges of masculinity and the structure of the military, he resorted to hyper-sexualised behaviour in the context of an adolescent boys’ club in which he had a leadership role. In a psychological sense, membership in the club of this man served to bolster his self-image and defend against his very considerable anxiety.”

Dr Byrne continued:

“It is also significant that he attended two different mental health professionals before being confronted with his behaviour confirming a degree of internal distress that emerged when even the hyper sexualised behaviour and drug fuelled drug use failed to stem this anxiety.”

14. I should say that it appears from his own evidence that the offender came into contact self-referred to both mental health professionals to which I will refer as the result of the birth of a son and questions as to his role as a father and indeed, it also appears that he did not specifically mention this offending to those psychologists. Dr Byrne’s report continues in relation to his personal circumstances and I will not go through those.

15. The offender was born in Port Moresby, his parents were separated shortly after he was born, he has had no ongoing relationship with his biological father. His parents adopted two boys and subsequently his mother became pregnant with him. His mother returned to country New South Wales where she married a Mr Don Fredrickson who died in 2011, his mother is described as being mentally unstable having had several nervous breakdowns and periods of psychiatric hospitalisation. It appears that both his 46 year old brother and his 43 year old brother have had significant problems either with drug abuse or being a rebel respectively. The offender also disclosed some confidential material which I do not propose to make public in appendix 1 of the psychological report. It concerns his history and I will say no more except they are matters of a traumatic nature. With the exception of that material, the offender described mostly happy memories saying he got on well with his brothers. He excelled academically at school, left home at 16 to join the Army and ultimately he saw this as a way of furthering his interest in electronics and getting training. He was in the Australian Army from January 1990 to April 2009, there were only two disciplinary matters reported against him of no great significance. He was sent to Afghanistan but did not see combat there, however he did hear the noises of war being mortar fire and the like. He said he never felt in physical danger being there. The offender told Dr Byrne that he agreed with his wife he would leave the Army when his children were born.

16. In May 2007 his son was born, he had at the time been accepted to join the Special Forces but declined to join that force ultimately due to his own circumstances. He then became an employee of Thales where he was working at the time of these offences. He was fired when these offences were discovered. He obtained further employment in October 2010 but with an organisation which also had large defence contracts and ultimately, he could not sustain employment with that group by reason of its defence contract associations and the withdrawal of his security clearance. Subsequent jobs consistent with his professional training, were offered to him from Telstra and the like but were ultimately withdrawn when these charges came to light.

17. He has been unemployed for a considerable period of time. He has attempted to take a number of courses, successfully it appears, in areas of training quite unassociated with his present skills. He intends going into a new business with three colleagues, in a business maintaining residential flats.

18. His account of these offences were as follows: On returning from Afghanistan he met a girl on a plane and commenced a sexual relationship. He said they shared recreational drugs such as cocaine and ecstasy and his last contact with her was in 2011. He said that after the news of his sexual behaviour appeared in the press she contacted him and asked him if he had filmed her. She went to the police and claimed she had been sexually abused, a claim which was dismissed. There was in fact no sexual abuse in that criminal sense. However it is undoubted that his conduct with her was both exploitative and demeaning. In August 2010 he was confronted by the Chief Security Officer of his employer regarding the objectionable material and was fired.

19. In terms of his psychological health in particular, he gave Dr Byrne a significant history of his family, his brothers, his mother and their various psychological and other problems which I will not rehearse.

20. In July 2008 he consulted a psychologist, Ms Bronwyn Tuffy, as he recently disclosed that the matters in appendix 1 to Dr Byrne’s and to his wife and he has had several consultations with Ms Tuffy which continued until June 2009.

21. In May 2010 he consulted psychologist, Mr Patrick McGee, because “he was getting a bit out of control” so that he had to talk to somebody and he was asking himself how many women do I have to have? He saw Mr McGee about 12 to 13 times. He stopped because he had planned to move to Canberra. Again it appears that what precipitated the contact with Mr McGee was not conduct of this particular character involved in these charges, but his own perception about his promiscuity rather than as I say the matters which were the subject to these charges, filming and disseminating information about them.

22. Dr Byrne notes that he is currently seeing a psychologist, Mr Buckmaster, through the Veteran Affairs Counselling Service. The offender said that he felt acutely unattractive as a child. He entered the army and he hit the gym to work on his physical appearance and to make himself more attractive.

23. He met his wife when he was 19 and she was 23. They dated for about two years and they subsequently married about six years later in 2001. They now have two children. His son has a speech delay and has a psychological disorder which I do not consider necessary to disclose. His daughter is three and a half years old and doing well.

24. The offender told Dr Byrne that his wife knows everything and she is obviously very angry with him. He then cast a much brighter description of their relationship which appears to be perhaps somewhat overstated. At the second interview the psychologist, Dr Byrne, learnt that the offender had actually given his wife “an extremely abbreviated version of the charges he faces. On inquiry he said this was because she would leave him if she knew the full story”.

25. He described the offender’s presentation as being extremely preoccupied, pressured speech, difficulty in focussing his thinking, difficulty in listening and interrupting on a number of occasions, rambling, reflecting his preoccupation. He also made apparently extremely odd comments to Dr Byrne.

26. Dr Byrne considered that he was clearly of above average intelligence and there was no indication of a psychotic disorder. He conducted the personality assessment inventory, a widely used test of personality that enjoyed strong validity and research support.

14. Relevantly he found that on administering that test the offender’s response style made a finding which was impossible to interpret. The test was repeated and the results showed almost exactly the same response style, in short compass as Dr Byrne later said. What he said in that inventory test could not be relied upon in assessing his mental state at that stage, as not being candid or not being honest.

15. Dr Byrne indicated that this is extremely unusual. It is strongly suggested that the offender was unwilling to reveal very much about his psychological difficulties. It is pertinent in my mind to have regard to the way he responded to that test in determining whether the other tests administered by Dr Byrne should be given any weight or any great weight.

16. In that second interview Dr Byrne arranged for the offender to undertake the Rorschach Inkblot test, again another widely regarded psychological tool, as well as the Minnesota Multiphasic Personality Inventory. Those tests which Dr Byrne considered of great importance and reliability. Dr Byrne said that the offender responded to both of these tests “in a co-operative and candid manner. The results are therefore considered valid and subject to interpretation”.

17. By comparison, Dr Byrne did not explain the inconsistent modes of responses to the Personality Assessment Inventory. In other words no persuasive reasons were offered, why the latter tests should be accepted as valid given the uncooperative responses to the former test by the offender.

18. In any event the net effect of all of those tests were as follows: That he is continually engaged in an effort to boost self-esteem and to strengthen others’ impression of his masculinity. This causes him to have a misplaced confidence in his own judgment. In situations where guidelines for behaviour are clear he is likely to be well-organised and respond well, particularly when there are opportunities to succeed and prove himself. Even then though, his behaviour will have an occasional impulsive appropriateness.

19. However when there is less external structure his judgment particularly regarding people can be markedly poor. Dr Byrne considered that his self- esteem clearly disclosed he was damaged and that he attempted to compensate for this by being ultra-masculine.

20. Dr Byrne also concluded that the finding suggested a poor attachment to both parents which led to “a weak, compromised sense of how to be a man and a pervasively negative view of women”. Looking at that particular conclusion it is difficult in my view to understand why a poor attachment to his parents has led to such an adverse view of women, the aspect of the offender’s conduct which in my view is a significant offensive part of what he did in these offences.

21. I note that Dr Byrne examined the genesis of the Jedi Council, so called. The offender explained to him that when soldiers returned from overseas a big dinner would be organised to celebrate. He was a natural organiser and took charge. “We suggested we call ourselves the Jedi Council”. This was as I would apprehend it a somewhat puerile and unimaginative reference to the popular science fiction movie Star Wars.

22. The soldiers spoke about having casual sex with girls and became, as the offender described it, having notches on the board. In particular he was asked about having anal sex with the women and he said as follows: “If you do it it’s like you’ve stolen her soul” and he agreed that it was like an extra notch of achievement. Again this attitude is highly troubling. In my opinion there is at least a discernible distinction between the triumph of multiple sexual successes. It is more difficult to comprehend that more than success was required, but was necessary to demean and “steal the soul of the conquests”.

23. Dr Byrne does not explore this aspect of the offender’s conduct, nor proffer any view of the significance of this issue in a psychological sense.

24. As for his thoughts about the victim the offender spontaneously said “It was a very bad thing to do, I have a daughter now, if I, someone did that to my daughter I’d be pissed off, I betrayed her confidence”. In my view this is somewhat typical of the various accounts of the offender’s remorse. His reference to his position as father and being pissed off has reference to a betrayal of confidence and omits any reference about the demeaning effect of his conduct and how he held up each of the victims to ridicule in the context of his army group.

25. He was asked what he would say to these victims if he met them and he said “Here’s the axe, here are my balls, there’s the meat grinder”. Again it is my view difficult to treat this as a sincere declaration of remorse. In many respects it has the feel of a macho flippant response to the proposition of having caused significant hurt to the victims. He told Dr Byrne he had well and truly learnt his lesson. Dr Byrne reviewed his army records and it is interesting to note that some of the psychological records revealed him to be inappropriately dogmatic, speaking without consideration for his peers, overly confident, coming across as stilted and contrived and projected as extremely regimental, full of misplaced confidence and approaching tasks he was dealing with in an extremely unbalanced manner.

26. Finally Dr Byrne reviewed the notes of Ms Bronwyn Tuffy and also of Mr McGee, the psychologist consulted in 2007, 2008 and 2010. In relation to his consultations with Dr McGee or Mr McGee, those consultations took place on or around the time that these offences occurred and it appears that any help he was receiving from Mr McGee was not sufficient to curtail committing these offences.

27. In the final analysis Dr Byrne’s evidence was that he considered that the offender was suffering from a “personality disorder-other specified with narcissistic features as indicated in DSM-5”. In this regard I note that Dr Byrne does not set out what the criteria of that syndrome are, nor does he indicate what features in the offender’s history and psychological presentation conform with those criteria.

28. In short it is difficult to understand the basis on which he arrived at his diagnosis and in that respect the expert opinion does not accord with the requirements as set out in the High Court in the case of Dasreef Pty Ltd v Hawchar [2011] HCA 21.

29. Nevertheless I should say this that the prosecution is represented in the present proceedings by an experienced senior counsel. No issue was taken by him as to that particular diagnosis and whilst I have my own doubts about it I consider that it is appropriate to proceed on the basis that Dr Byrne’s diagnosis is operative and stands. Certainly there is much in Dr Byrne’s reports which appears to be borne out by material which is otherwise correct.

30. Dr Byrne also gave evidence in the present proceedings. In terms of the issue of the offender expressing his remorse he in various ways said that the offender expressed his remorse as far as he could go. In my view that is not extremely convincing, notwithstanding the fact that he suffers from this personality disorder. In particular and perhaps one of the more puzzling aspects of Dr Byrne’s evidence was that he relied upon sketches drawn by this offender when asked to draw sketches of persons. The offender drew two stick figure sketches, one of which emphasised that the stick figure had shiny shoes.

31. However Dr Byrne considered particular significant that the hand of one of the stick figures was not attached to the arm. He referred to it as bizarre. I am not aware of what bizarre means in psychological terms or for that matter what the comment was intended to convey, but it is evident in my view, looking at the drawings of a 41-year-old man when asked to draw a person could, no matter what lack of artistic capacity he had had drawn somewhat more sophisticated sketches than that produced by him. One is drawn to the conclusion that he made no serious attempt to comply with the request and furthermore that Dr Byrne’s attribution of significance to anything arising from those sketches is in my opinion somewhat misplaced. When discussing the offender’s remorse as genuine Dr Byrne stated that it was genuine as far as his personality allowed it to be. Again I find this less than convincing.

32. Dr Byrne it should be said, appears to be a well-qualified psychologist, but given his unexplained diagnosis in terms of the Dasreef issues and a number of questionable conclusions, I myself have some reticence in completely accepting his conclusions. In particular it was my firm impression that in the manner he gave his evidence he saw his role as an advocate for the offender rather than a detached professional. For example on a number of occasions or at least one for certain, when asked about parts of his report by the offender’s counsel, Dr Byrne suggested that the question should refer to other parts before answering the question.

33. Therefore I remain unconvinced about the genuineness of the offender’s expression of remorse and that lack of being convinced was indeed confirmed by his own evidence given in the witness box. The expression of remorse was delivered unemotionally without conviction. As I have said however the prosecutor, Mr Neill, Senior Counsel, a very experienced prosecutor, did not take objection to the diagnosis, nor argue against it and in those circumstances I am prepared to act on that basis.

34. I consider, as I will indicate, that the offender in some respects lack frankness in his evidence and was deceptive and/or manipulative. There is reason to believe he was not frank with the psychologist, that he manipulated that situation or relationship and that he withheld information or provided incorrect information from time to time.

35. The offender himself gave evidence and he gave an account of his personal circumstances which I will repeat. He said that he had read the victim impact statements and accepts full responsibility, was very remorseful, regrettable and it was a horrible thing to do. He spoke of seeing the psychologists. In particular he was asked about when or if he made full admissions to his employer or his supervisor when these offences came to light.

36. His evidence is useful to consider because at transcript p 10 line 20 he was asked by Senior Counsel this question:

“In relation to circumstances of the offence it is accepted that when your employer raised the matter with you you told them basically what you’d done?

A. Full disclosure.”

50. At transcript pp 11 and 12 that matter was pursued and it appears that the effect of the offender’s evidence was that he did not know how his employer became aware of the emails or the attachments. In my view the evidence of full disclosure and that particular evidence do not sit well together at all.

51. Going then to the further evidence that he gave, he indicated when he was first arrested he went to the Queanbeyan Police Station, there was immediate interest in camera crews present, he was ultimately splashed, if I can put it colloquially, across the television and newspapers. He was terminated the day this matter came to light.

52. He says that he has not been in full-time employment since about September 2013. He has been doing some fairly menial work. He also indicated that he was served with court documents from the County Court of Victoria in relation to proceedings commenced by one of the two victims and in that context offered an apology through his solicitor which became exhibit 1.

53. He accepted or rather he stated that he was receiving psychological counselling at the time of these offences, but it is patently obvious that he did not tell the psychologist what he was doing in the context of these offences.

54. As I say I am not convinced that he was totally genuine and/or frank about parts of the evidence he gave in sentencing proceedings. His expression of remorse was in my view not particularly convincing. Given that these offences occurred whilst he was seeking professional psychological help it appears he did not disclose these matters to the psychologist as well, nor did that intervention assist or convince him not pursuing these offences. In fact the offender’s evidence was that he merely told the psychologist that he had done “some things I’m ashamed of”.

55. In order to determine what is an appropriate penalty one must have regard to the objective seriousness of the offending. Because there has been not much litigation, nor court analysis of the particular provision that matter is by no means easy.

56. Section 474.17 of the Criminal Code provides that a person is guilty of an offence if that person uses the carriage service and the person does so in a way whether by the method of use or the content of a communication or both that reasonable persons would regard as being in all the circumstances menacing, harassing or offensive.

57. Section 473.4 of the Code indicates that a matter is to be determined as offensive or not by asking whether reasonable persons would regard particular material or the particular use of a carriage service in all the circumstances relevantly, which include the standards of morality, decency and propriety generally accepted by reasonable adults, that being the operative part of the section. So one judges the offensive nature of the material by standards of morality, decency and propriety generally accepted by reasonable adults.

58. There were two cases which were brought to the Court’s attention which dealt with this particular section.

59. The first is the High Court authority of Monis v R [2013] 87 ALRF 340, HCA 4. In that case the High Court was considering an offence under 471.12 which was using a postal service to send offensive material. That being shorthand for material that reasonable persons would regard as being in all the circumstances offensive. His Honour Justice French, the Chief Justice referred at paras 15 and 16 to two not quite analogous provisions in the United Kingdom which sought to elicit the purpose of legislation of this kind. In para 15 in the context of The Malicious Communications Act [1988] s 1(1) his Honour noted that that section made it an offence for a person to send any article which is in whole or in part of an indecent or grossly offensive nature. The Law Lords in the case of Director of Public Prosecutions v Collins [2006] 1WLR 223, 4 All ER 602 Justice French noted para 16, determined that the object of such legislation was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. Lord Brown in that judgment described the provision as intended to protect the integrity of the public communications system.

60. Justice Hayne at paras 160 and 161 affirmed the Court of Criminal Appeal determination in Monis, that for an offence of offensive conduct within the relevant provision the conduct must be such as was calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred. Presumably his Honour said, the reaction of the hypothetical, reasonable person intended by these descriptions must be a reaction that is clearly experienced and deeply felt. His Honour continued to elaborate on those matters by saying that for someone to be merely offensive as opposed to being significantly offensive was not sufficient to make out a breach of a particular section.

61. I should note that Justices Crennin, Kiefel and Bell who comprised the majority in that case for reasons which are not relevant for present purposes also set out their view of what was required at paras 310 and 311. Basically the effect of it was that the term “offensive” had a quality at least as serious an effect upon a person as the other words being menacing, harassing, imply. The words menacing, harassing play a serious potential effect upon the addressee, one which causes apprehension if not fear for that person’s safety. Their Honours said that to be offensive a communication must be likely to have a serious effect upon the emotional wellbeing of an addressee. I note that their Honours were dealing with letters sent to the victims there in question, and the present case was not such correspondence.

62. Taking those matters into account then the following conclusions are open and the ones that I will draw about these matters. Firstly s 474.17 appears to indicate a descending order of gravity and conduct, menacing, harassing and then offensive. As the authorities indicate the section requires that the offensive conduct must cause a significant reaction. Sending material of explicit sexual nature per se may be thought to be insufficient given the general availability of such material on the internet. The following factors in my opinion make these transmissions offensive within the terms of the provision and they are as follows. That there were three transmissions between 6 and 20 July, two of them in the early hours of the morning. They were not to the world at large but to members of the so called Jedi Council, that is to say to persons who either expected or at least consented to the receipt of such material. The emails were not and were not intended to be transmitted to the victims. The verbal content of the emails described various forms of sexual activity, contained imputations or direct statements that the women involved were of loose morality or dubious character, (the term “molls” and “sluts” were used) and open to promiscuous sexual activity. They were insulting, degrading and humiliating descriptions of women and not only expressing the triumph of a sexual contest but belittling the object of those conquests. As I said Dr Byrnes’ material does not in any significant terms deal with that latter aspect in my view adequately. The visual content of that which was sent attaches pictures of one of the victims involved in sexual activity with the offender taken without her knowledge and accompanied by tasteless and belittling captions and one of the complainants or victims is identified by a first or Christian name and there are sufficient contextual facts to permit her to recognise that the email concerned her if it came to her knowledge. It must be remembered as Mr Pappas in his written submissions clearly pointed out in my view correctly, that it is not the morally repugnant or reprehensible nature the dealings of the offender with the victims which the section punishes. In a moral sense the reaction to that matter by most reasonable persons would call for condign punishment. It is the use of the carriage service or its manner of use which is to be punished.

63. I should note that the second authority which appears to be relevant is the sentence imposed by Acting Justice Nield as his Honour then was, in the ACT Supreme Court on 23 October 2013 in the case of R v Deblaquiere and McDonald. That was a case where two recruits and/or junior officers in Duntroon, broadcast a consensual sexual encounter between Mr McDonald to Mr Deblaquiere by Skype at the time it was happening in circumstances where the young female recruit who was engaged in the sexual activity had no knowledge or consented to that being done. There was a trial at which those young men were found guilty. Justice Nield considered that the transmission by Mr McDonald and the use by Mr Deblaquiere were above and about the middle range of objective seriousness, this is at para 32 and 33 of the judgment. He noted that there had been a real and substantial violation of that victim’s right to privacy, that the offenders had deliberately acted to abuse and degrade the victim and exposed her to humiliation and ridicule. In the event his Honour imposed a penalty of 300 hours community service on both those young men. I consider this is a more serious case than Deblaquiere, however I take a different view with the greatest respect to my senior colleague, that is Justice Nield’s characterisation. In that case those matters were in the mid or above the mid-range of objective seriousness.

50. In my opinion the present case is more serious than that case which involved one incident, one victim and immature offenders aged 18 to 20 years of age. In those circumstances I consider the only appropriate punishment is one of imprisonment but I do not necessarily consider it follows that it should be full-time custody. I will turn to that issue shortly. Section 16A of the Crimes Act (Commonwealth) requires the court have regard to a number of features in every case in determining an appropriate sentence. They are as follows. Firstly s 16A(1) requires the court to pass a sentence that is of a severity appropriate in all the circumstances of the offence and I aspire to do so. The Crown in its written submissions and orally submitted that general deterrence is a significant matter to be considered in the present circumstances, I agree with that proposition. In its written submissions reference was made to the dissemination of material by the internet particularly at paras 13 and 17. I consider that is not a correct characterisation of what occurred, this being a dissemination as it were in club, to members of the group and not to the world at large. Section 16A(2) requires the court to have regard to the nature and circumstances of the offence, I have done that already in dealing with the objective seriousness of the matter. I am obliged to have regard to the effect on the victims. I have at some length referred to that matter. In my view the effect is significant but it was neither intended nor was as a direct consequence albeit of the activity but was an indirect consequence of having been found out.

51. The next matter is the degree to which the offender has shown contrition. True it is there is an early plea of guilty and for that that must be recognised but I have serious doubts as to the genuineness of his remorse.

52. The next matter is the deterrent effect of any sentence upon the offender. The Crown argues that specific deterrence is a matter of high order. In my view given the effect of these proceedings on this 41 year old man I consider that it is reasonably unlikely that he will offend in this way. That is not to say that he necessarily has good intentions but I suspect that what has happened to him which has not been insignificant, has had a salutary effect on him.

53. The next matter to be taken into account is the need for adequate punishment. In my view general deterrence is a significant matter for the reasons espoused by the Crown. It is clear that this was a betrayal of trust. It demeaned the women involved, it has affected them with ongoing effects and has done so in an exploitative manner. Again those who consider such crimes in the future should have regard to the real possibility of a prison term which I say I propose to impose but not a full-time prison term. I have had regard to the personal circumstances of the offender including matters on the Form 1, his present circumstances, the fact that he has no criminal history and I accept that he suffers from a personality disorder but have some doubt as to the extent to which that deprived him of any will to participate in these offences. I also note that there has been significant extra curial punishment. He has lost his job or jobs and the opportunity of work. He has been the subject of significant publicity, no doubt the offences warrant that but the court must take into account the fact that those are additional matters over and above other offenders who appear in these courts.

54. Next I must have regard to the prospect of rehabilitation. It is true it appears that the offender is consulting a psychologist in Canberra which I have already noted. Much of that appears to be directed towards his own traumatic history and whether or not it has an effect upon any inclination he has to re-engage in this conduct is questionable. As I say for all those reasons I consider that in the present case there should be a custodial term but I also consider that given each of those matters that this offender should be considered for the imposition of an intensive correction order.

55. Would you stand up please. Accordingly in respect of each of the offences I convict you and sentence you to a term of 15 months imprisonment. I direct that you be assessed for suitability for an intensive correction order and if so suitable I propose to make such orders.

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Decision last updated: 03 July 2015