R v Hoare

[2019] NSWDC 739

District Court

New South Wales

Medium Neutral Citation:	R v Hoare [2019] NSWDC 739
Hearing dates:	24 October 2019
Decision date:	24 October 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 2 years.
Catchwords:	CRIME - SENTENCE - use carriage service to procure a person under the age of 16 years for sexual activity.
Legislation Cited:	Commonwealth Criminal Code s.474.26(1)
Category:	Sentence
Parties:	Regina (Commonwealth DPP) Offender: Douglas Kerry Hoare
Representation:	Ms Lo (Commonwealth Crown) Mr McMahon (Counsel for the offender)
File Number(s):	2019/2927
Publication restriction:	Nil

Judgment

1. Douglas Kerry Hoare, you appear for sentence today in relation to one offence and that is: using a carriage service to procure a person under the age of 16 years for sexual activity.

2. This involves a contravention of s 474.26(1) of the Commonwealth Criminal Code.

3. The maximum penalty for that offence is 15 years’ imprisonment - and that maximum penalty, Mr Hoare, indicates the seriousness with which parliament, speaking on behalf of the community, regards this type of offence.

4. The facts surrounding your offending are contained in an agreed statement of facts which is part of exhibit A. I have had regard to those facts but I think, for the purposes of this afternoon, that I can adequately summarise them in the following way.

5. As at 23 October 2018 you were under considerable personal stress: your long-term marriage had ended acrimoniously; your parents were confronting serious health issues; and a close relative had committed suicide. It is not really in doubt that you were suffering some form of depressive condition as a consequence of that confluence of unfortunate and sad personal factors.

6. You sought consolation (for want of a better term) by using the facilities of what was, prima facie, an adult dating website/chat line.

7. You were on that chat line on 23 October 2018. The person with whom you were communicating was an online identity who identified "herself" as being 14 years old. And by your plea you have, finally, at least publicly, acknowledged that you believed you were chatting to a 14 year old girl.

8. Between 23 October 2018 and 13 January 2019 you had approximately 13 conversations with the person you believed to be a 14 year old girl.

9. Very soon after the conversations began, the platform on which they took place changed: from the internet to skype; and then from skype to mobile phone.

10. It is not necessary for me to publicly repeat the details of those various conversations over that significant period of time but they were graphic and they were grossly inappropriate for a man of your age, 57, to engage in with a person whom you believed to be 14. They were graphic in a sexual context to which a 14 year old girl should not be exposed.

11. In the penultimate conversation on 2 January 2019 there was an arrangement to meet the following day.

12. Once the (assumed) 14 year old girl agreed to meet you, the conversation then concluded with what can only be described as a gross and revolting observation by you which, for the benefit of the public gallery, I shall not repeat. But you and your counsel know exactly what I am talking about.

13. If it is not obvious already from what I have said, the person with whom you were communicating was not a 14 year old girl. The person was a police officer; and that police officer was therefore aware of the agreement to meet which you thought you had arranged after what can only be described as approximately two and a half months of grooming.

14. And that is what those conversations were, Mr Hoare - they were grooming, enticing, encouraging, educating, seducing, luring (whatever word you want to use) a person whom you believed to be an innocent 14 year old girl: first, to have sexual activity with herself; and then to engage (ultimately) in full adult sexual activity with you. That is what the police knew had been agreed to.

15. On the day arranged for the meeting (3 January 2019) you sent a message to the person you believed to be 14 that you would not be attending the meeting. But by this stage it was far too late.

16. Later that day there was in fact a meeting -  a meeting between you and the police.

17. You were first confronted with what you had done by the police at your home. You were then taken to the police station for an interview and there you did not admit (in fact you denied) that you believed the person with whom you had been communicating was 14. You told the police that you thought it was an adult pretending to be 14.

18. Why a fully mature man would want to engage in such a fantasy conversation with an adult pretending to be 14 is an issue I do not need to address this afternoon, Mr Hoare, but it indicates to me an underlying problem.

19. Your assertion to the police on 3 January 2019 that you did not believe the person was 14 was persisted in by you for some time.

20. You even persisted in asserting that when you were interviewed on 18 October 2019 by the author of the sentencing assessment report which has been placed in evidence before me - and which you knew was to come into evidence on sentence.

21. Moreover, you seem to have persisted in that assertion when you sought treatment from Mr Borenstein. To the extent that Mr Borenstein addresses the issue, it is at p 3 of his report - and that is only consistent with you continuing to assert that you believed you were dealing with an adult and not someone who was 14.

22. I shall come back to the consequences of these continued assertions by you later in these remarks.

23. In terms of its objective seriousness for an offence of its kind, your offence falls below the middle of the range, but it is not at the bottom of the range.

24. I have already touched on some aspects of your subjective circumstances - your age and the unfortunate events that had occurred immediately prior to your offending.

25. You have no prior offences. You are therefore a person of prior good character. For offences of this kind, good character is of reduced significance but it is still of significance.

26. You have been a hardworking man all your life.

27. You have the love and support of your family.

28. It is difficult for me to form an assessment about your prospects of rehabilitation, Mr Hoare, because of the matters to which I have earlier referred. Mr Borenstein is not aware, so far as I can see, that you did believe the person you were talking to was 14. The treatment which he has provided, therefore, (like the much loved Sunday school hymn) has not been built upon a rock but built upon sand. I very much doubt the effectiveness of whatever it is that Mr Borenstein has done by way of treatment in circumstances where you have not told him “I believed that person to be 14”.

29. For similar reasons, I give reduced weight to the references which have been advanced on your behalf, for, as far as I know, you have told the authors of those references (as you have told the police, the author of the sentencing assessment report, and Mr Borenstein) that you believed the person was older than 14 – and, in fact, an adult. I do not know what you have revealed to your referees but I would be surprised if it was inconsistent with what you have revealed: to the police; to the author of the sentencing assessment report (who was preparing a report, to your knowledge, for use in sentencing): and to Mr Borenstein (who was both treating you and preparing a report for use in sentencing).

30. Mr Borenstein does not explain to the Court why it would be that a person who was under the pressure you were of a failed and abandoned marriage, the stress of parents becoming frail and the stress of a cousin suiciding, why that would result in a man of unblemished character resorting to the sort of conversations you had with a person whom you believed to be 14 -conversations leading not only to you encouraging that person to engage in sexual activity on her own and to discussing sophisticated sexual activity with an adult; but to arranging a meeting.

31. I therefore cannot give much weight to what Mr Borenstein has "diagnosed" simply because he was not told the truth.

32. Your prospects of rehabilitation are therefore guarded.

33. No sentence, other than one of full-time imprisonment, is appropriate for an offence of this kind. The community demands that children be protected from people, Mr Hoare, such as you.

34. Put aside for one moment, Mr Hoare, the meeting. Just reflect for a moment on what you asked that 14 year old girl to do and what you discussed with her in all of those 13 conversations. How would you feel if your granddaughter was spoken to by a 57 year old man in the way that you spoke to that 14 year old girl?

35. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years and 8 months.

36. I shall reduce the term by 25% because of the utilitarian value and the assistance to the authorities of the plea. The term of imprisonment is therefore 2 years.

37. You will serve a minimum of 12 months, after which you will be eligible for a recognizance release order.

38. You are therefore convicted and sentenced to a term of imprisonment of 2 years to commence today. You are to be released on 23 October 2020 upon entering into a recognizance in the sum of $500 self-surety, to be of good behaviour for a period of 12 months.

39. I make a forfeiture order of the relevant mobile phone.

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Decision last updated: 11 December 2019