R v Jeremiah

[2024] NSWDC 206

District Court

New South Wales

Medium Neutral Citation:

R v Jeremiah [2024] NSWDC 206

Hearing dates:

31 May 2024

Date of orders:

05 June 2024

Decision date:

05 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Friday Fredrick Jeremiah is convicted.

2   I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 4 June 2024. The non-parole period will expire on 3 December 2024 and the head sentence will expire on 3 March 2025.

3   The offender is to be released on parole on 3 December 2024.

Catchwords:

CRIME — Sexual offences — with person under care between 17 – 18 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

R v Edwards (1996) 98 A Crim R 510

Category:

Sentence

Parties:

Rex (Crown)
Friday Jeremiah (Offender)

Representation:

Counsel:
S Carr (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Macarthur Law Group (Offender)

File Number(s):

2023/221865

Publication restriction:

None

JUDGMENT

1. Friday Fredrick Jeremiah (the offender) appears for sentence after pleading guilty in the Local Court to an offence of sexual intercourse with person under care between 17 and 18 years contrary to s 73(2) Crimes Act 1900.

2. The maximum penalty for this offence is 4 years imprisonment.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered pleas of guilty in the Local Court and is entitled to a discount on sentence that reflects the utilitarian value of the pleas. The pleas also indicate remorse. The appropriate discount is 25%.

6. An Intensive Corrections Order is not an available sentencing option for this offence: s 67 Crimes (Sentencing Procedure) Act 1999

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The offender was employed as a Crisis Accommodation Youth Worker with the Oasis Youth Support Network run by the Salvation Army.

9. In July or August 2022, the victim began staying at Youth Service Centre (Oasis) in Surry Hills, NSW. The victim was born on 28 July 2005 and was 17 years old at the time.

10. The victim met the offender near the beginning of her stay at Oasis and saw the offender every night when he was on shift to get her medication. The offender would mentor the victim, give her life advice and emotional support, often engaging in long conversations with the victim lasting between three to five hours.

11. The offender gave the victim more attention than other persons staying in the centre and would tell her she was his favourite client, which the victim bragged about to other workers. The offender told her not to tell other workers about their friendship.

12. Sometime in August 2022, while the victim was getting her medication, the offender asked her what she was into sexually. This caused the victim to feel uncomfortable and she did not say much. The offender then told her that he used to be a gigolo so he had lots of experience with women. After she returned to her room, the offender texted her using a phone used by the youth workers asking her to come back to talk to him, but the victim refused.

13. The victim and the offender continued to speak, and their conversations grew more intimate.

14. On 22 October 2022, the offender gave the victim his phone number and told her to save it under “Uncle Champ” so that no one knew it was his number. They began to text each other.

Sequence 1 – 27 October 2022

15. On 27 October 2022, the victim went out to a youth show with others from Oasis. The offender was also present, and they were texting flirty messages to each other while at the event.

16. After returning from the show the offender texted the victim that he was able to leave the site and asked her to go for a walk. They met around the corner of the refuge and walked down the street holding hands. They stopped in Frogs Hollow Park by which time it was dark and sat on some big steps in the park. Whilst they were sitting there the offender grabbed the victim’s face, pulled her towards him and kissed her. They kissed for a few minutes. The kiss made the victim feel uncomfortable.

17. After this they started walking again. They walked up a dead-end street, on the right-hand side footpath. As they approached a tree on the street they stopped, and the offender spun the victim around, so she was facing the tree. He pushed her against the tree and pulled down her pants. The offender then placed his fingers into the victim’s vagina and penetrated her with them. This lasted for about three minutes.

18. The offender stopped when the victim told him to as she saw a silhouette of a person standing in the roadway watching. The offender walked back to Oasis telling her to wait 10 minutes before going back so it did not look suspicious.

19. The victim waited in Frogs Hollow Park and called her friend. She told her friend what had happened and recalled saying “Oh my god Friday fingered me”.

20. The victim then returned to Oasis. She spoke with the offender via text message, who stated things like “you were so wet” and “your moans are so sexy”.

Subsequent events

21. On 1 November 2022, the victim left Oasis for longer term accommodation. The victim continued to talk to the offender via text message.

22. Sometime between 7 November and 6 December 2022, the offender sent the victim a picture of his genitals with the caption “Let the sleeping dog lay”. The victim ignored this message.

23. Between 6 December and 31 December 2022, the victim attempted to text message the offender without response seeking friendship and support. On 1 January 2023, the victim again messaged the offender. He responded and they began messaging again.

24. On 11 February 2023, the victim received a call from the offender and requested that she tell his wife that the victim used to be a worker at Oasis as she was becoming suspicious of their relationship. The victim went along with this when she received a call from a person whom she believed was the offender’s wife.

25. In February 2023, the victim began a Certificate IV in Youth Work at TAFE. On 14 March 2023, she sent the offender a photograph of a power point slide from her course about boundaries with a message to the effect that their relationship was unprofessional and should not be continued.

26. The victim ignored the offender’s subsequent calls and text messages.

Complaint to Oasis staff

27. On 29 May 2023, the victim arranged to meet with caseworker, Kiara Bletsas, to make a complaint about the offender. At about 12:54pm the victim arrived at the centre, and they walked to a nearby park where the victim reported what had happened. The victim filled out and signed a complaint form.

28. On 29 May 2023, Omar Bensaid, the team leader of Oasis, became aware of the complaint. On 30 May 2023, Mr Bensaid contacted the victim informing her of the mandatory steps he would need to take given the nature of her complaint. The offender was stood down from his duties but not informed of the details of the complaint.

29. Mr Bensaid and another staff member, Iriea Karene, both observed interactions between the offender and the victim. They observed that they were friendly, close to one another and would spend a lot of time together. Ms Karene also observed that on multiple occasions the offender would comment on the victim’s appearance saying things like “It looks like she is prostituting” and “She dresses slutty”.

30. In response to a search warrant, Mr Bensaid provided employment documents to the police, including an email from the offender to staff responding to concerns raised about boundary concerns between the offender and victim in August 2022. This also included the offender’s shift notes relating to the victim and his timecard.

31. Ms L became a friend of the victim while she lived at Oasis between September and October 2022. She observed and became suspicious of the offender’s relationship with the victim. She noted that the victim would go into the office with the offender and stay until the early hours of the morning. She also spoke with the victim about the offender.

32. Ms L attempted to report the offender’s conduct to youth worker Dan but was told to ignore what the victim had told her and not to listen to her. During a visit with the victim after Ms L had moved out of Oasis, the victim told her that following Ms L’s report, Dan had threatened the victim.

Police Investigation

33. On 1 June 2023, police met with the victim and obtained photographs and messages from her phone with the offender between 30 October 2022 and 14 March 2023. The next day the victim provided a statement to police.

34. On 18 June 2023, police obtained photographs of the location of the incident.

35. After failing to locate the offender at his residential address, police arrested the offender after a court appearance for AVO proceedings at the Downing Centre Local Court on 12 July 2023. The offender had a mobile phone which was seized.

36. The offender participated in an electronically recorded interview which was terminated when the offender claimed to have been kidnapped by the police and did not know what was happening.

37. Police examined the offender’s phone. Saved as a contact under the name “Oasis Arm12 Salvation Army” was the victim’s phone number. There were no text messages with the number saved on his phone or in the offender’s Whatsapp application.

Sentencing Assessment Report

38. The Court received a Sentencing Assessment Report dated 27 May 2024 and an accompanying psychological report of Flavio Di Bona, senior psychologist at Mt Druitt Community Corrections, dated 13 May 2024. This material can be summarised as follows.

39. The offender is 35 years of age and is of African descent. The offender immigrated to Australia in 2008, with his extended family remaining in Nigeria. He has a close relationship with this family overseas and sends them money regularly. They are not aware of his offending.

40. He reported a domestic violence relationship after first coming to Australia in 2008. There is an AVO with himself as the protected person.

41. The offender currently resides in the Colyton area with his wife and their three children. His wife appears supportive and is aware of the details of his current charges.

42. The offender currently works on a casual/full-time basis as a forklift operator and is the sole wage earner for his family.

43. He has a limited criminal history consisting of dishonesty and driving related offences.

44. The offender stated to the author of the report to have been initially motivated by wanting to “save” the victim and act as her “big brother”. He appeared to lack insight into his behaviour and stated that he could not recall his thought processes at the time.

45. The offender stated he was experiencing high levels of stress at the time of his relationship with the victim due to financial strain and a temporary break-down of his marriage. He relayed that he had lost a large sum of money to an online financial scam and that the pressures affected his thought processes.

46. The offender expressed remorse to the author of the SAR and the psychologist for his actions and accepts responsibility for what occurred.

47. The offender was assessed by Community Corrections as at a medium risk of reoffending.

48. He is assessed as suitable for supervision by the author of the SAR. He is willing to undertake required intervention, including referral to a psychologist, completion of the EQUIPS Foundations program and the completion of behaviour change exercise as recommended by Community Corrections in their proposed supervision plan. He is also willing to comply with a community service work condition, if suitable work is available, and appeared to be cooperative when interviewed by Community Corrections.

49. The psychologist opines that the offender may not be eligible for placement in a Sex Offender Program in custody due to being a first-time sexual offender and having a low likelihood of reoffending on the Static-99R instrument.

The Offender’s Case on Sentence

50. The offender relies on the following documents:

1. psychological assessment report of Kerry Watson dated 23 May 2024;

2. signed character reference letter of Olumuyiwa Adams, pastor of Believers of Pentecost Church of God, undated;

3. signed reference letter of Mariama Jeremiah dated 28 May 2024;

4. signed letter of apology of the offender dated 26 May 2024; and

5. medical report of Dr Matur Gak dated 13 April 2024.

51. The following is a precis of the evidence relied upon by the offender.

52. The offender is currently 35 years of age. He was born and raised in Nigeria. He is the youngest of 11 children born to his parents, seven of whom are deceased. The offender provided the psychologist with an account of a tumultuous developmental history in which he was exposed to the civil war in Nigeria, lived in poverty such that he would often source food from bins, and was sexually abused by his neighbour. The offender reported that six of his siblings died from Malaria as toddlers, and his brother aged two years older passed away at the age of 14 in his arms from tuberculosis. The offender’s parents divorced shortly after his birth and he and his surviving siblings were left in the care of his father. His father passed away in 2007 from prostate cancer.

53. The offender reported that contact with his mother was scarce throughout his developmental history as she did not visit and he was not allowed to visit his mother’s new marital home. Despite this, the offender has consistently provided his mother with financial support throughout his employment years and reported to the psychologist that “she only calls me for money”. He stated that he “send[s] it to her because she is the only surviving parent I have”.

54. The offender attended school in Nigeria but was often unable to attend for lengthy periods due to his father’s inability to pay school fees. He completed year 12 with below average results.

55. From the age of six, the offender played soccer. His talent resulted in his selection from a soccer agent and at age 17 he was taken to Brunei to trial for a professional team. He was however unsuccessful on this occasion. After three months he relocated to Malaysia where he played professionally for about six months. Whilst in Malaysia the offender applied for a study visa to avoid returning to Nigeria and subsequently completed a four-year College course in Business Communication and Tourism and Hospitality.

56. The offender has played professional soccer since relocating to Australia for a number of teams and to date continues to play in a professional capacity.

57. While in Malaysia, the offender became involved with an Australian woman with whom he relocated to Australia in 2008. Her family objected to her union with a Nigerian man, and she reportedly become verbally and physically abusive towards the offender. The relationship lasted three years.

58. The offender met his current wife in 2014. They married in 2015 and have three children born to the union.

59. From 2008 to 2011, the offender undertook labouring work and in 2011 he secured a warehousing role with Coles which he upheld until 2023. Whilst employed at Coles, the offender simultaneously worked as a forklift driver from 2012 to 2013 for TNT, in 2013 for Startek and in 2020 for Bunnings Warehouse.

60. In 2021, the offender completed a diploma in Community Service at the National Career Institute Australia. Following the achievement of this qualification, the offender worked as a Therapeutic Youth Support Worker/Mental Health at two institutions before taking on the role of Therapeutic Youth Support Worker at Oasis from November 2021 to June 2022.

61. He is currently employed at Toll in warehousing and forklift driving.

62. The offender is the primary income earner for his immediate family, and he reported to the psychologist that he provides regular financial support to 12 family members of his extended family, including his mother and surviving siblings.

63. The offender denied to the psychologist that he has ever abused drugs or alcohol.

64. The offender described himself as severely depressed from a young age, his recognition of which occurred during his study of Community Service/Youth Work in 2021 to 2022, and he reflected that his mood consistently cycled between deep sadness, anxiety, fear and agitation during his developmental years.

65. The offender reports that after leaving Nigeria he has continued to experience depressive features, albeit episodically.

66. The offender also described to the psychologist a lengthy episode of severe depression preceding and during the period in which his offending conduct occurred. This developed as a result of the increasing discord in his marriage associated with their increasing financial difficulties with the offender repeatedly sending money to his extended family members without the agreeance of his wife and was exacerbated by the loss of his and his wife’s entire savings of $95,000 in a Crypto currency scam in October 2023.

67. The offender reported feeling severely and persistently depressed, stressed, anxious and generally overwhelmed in all aspects of his personal life during that period. He described to the psychologist of feeling hopeless and helpless, emotionally dysregulated, having reduced motivation, an inability to enjoy previously enjoyed activities and repeatedly experiencing thoughts of death and passive suicidal ideation.

68. During the psychological assessment, the offender presented as well dressed and polite with seemingly average intellectual functioning. However, the psychologist noted his presentation was indicative of severe psychopathology in the form of a severely depressed mood state.

69. The psychologist states in her report that the assessment of the offender is indicative of a complex mental health history that spans almost the entirety of his life and is characterised by enduring and pervasive psychological distress and impairment that is currently consistent with a Major Depressive Disorder with Anxious Distress that is episodic and severe and Post Traumatic Stress Disorder. The offender’s Depressive Disorder with Anxious Distress has been of an episodic nature during his adult years.

70. The psychologist opines that the offender’s comorbid mental health conditions of PTSD and a Major Depressive Episode were relevant throughout the period of his offending conduct and remain so. She further opines that these conditions likely served to considerably compromise the offender’s judgement and restraint, reduced his inhibitions, and obscured his logical thinking.

71. In response to the offender’s reports the psychologist further states that the offender is experiencing elevated stress, anxiety and persistent worry, in relation to his current legal predicament and the ramifications for him and his young family.

72. The offender expressed remorse to the psychologist and in his letter to the Court. He recognised the seriousness of his offending behaviour and was able to identify victim impact as causing the victim distress and confusion, impairing the victim’s ability to trust.

73. The psychologist recommends that the offender undertake psychological treatment and be referred to a suitable Sex Offender Treatment Program.

51. Following the offender’s arrest for the current matter, he made full disclosures to his wife, who has provided him with unwavering support and shares the offender’s commitment to address his mental health issues and the problems in their marriage. In her letter to the Court, Ms Jeremiah also stated that she observed the offender’s demeanour change during the period in which his offending conduct occurred stating that “he looked stressed, scared always and panicking”. She also states that the offender has been a “very hands-on” parent and his incarceration would be “catastrophic and unmanageable for the children”.

52. The offender and his wife have attended counselling with the Pastor of the Believers of Pentecost Church which they have attended since 2009. This counselling was initially conducted on a twice weekly basis for three months and has been on a weekly basis thereafter. In his letter to the Court, Pastor Adams states that the offender has served the Church faithfully as Keyboard player and as Choir Leader in the past three years and is a good member of the community. Pastor Adams reinforces that the offender and his wife are working hard for the future of their children who would be severely impacted if the offender is placed in custody. The offender also expressed remorse to Pastor Adams.

53. The offender has also been provided with a Mental Health Care Plan from his General Practitioner, Dr Gak, which will facilitate 10 sessions of psychological counselling on a bulk bill or rebate basis.

54. In his medical report, Dr Gak also confirms the offender is currently on a lifelong treatment with Rivaroxiban daily for a pulmonary embolism that he had a few years ago.

Consideration

Objective seriousness

78. The offence is objectively serious.

79. The offence involves a serious breach of trust. The victim was a resident at Oasis because she was vulnerable and the offender took advantage of that vulnerability to get close to her and to have sexual intercourse with her. There was a significant age gap between the offender and the victim.

80. The offence involved some planning and was not spontaneous. The offender had tried to sound out the victim about her sexual desires. The offender was deceptive about his conduct and encouraged the victim to lie and to be secretive about their relationship.

81. The digital penetration of the victim’s vagina continued for about three minutes. The offence occurred outside in a park, where there were a few other people around.

82. Consent is not an element of this offence.

83. The offender had a deprived upbringing marked by exposure to war, abject poverty, interrupted schooling, family breakdown and the death of his siblings. I am satisfied that his childhood experience has had and will have a long-lasting impact on him and that by reference to it, his moral culpability for the offence is reduced to some extent.

84. I have taken into account the maximum penalty for the offence.

Deterrence

85. General deterrence is of significance in offences committed against victims under the care of an offender. The penalty imposed for this offence must signal to others contemplating the commission of similar offences that they will be met with significant punishment.

86. General deterrence can be afforded less weight where the offender suffers from a mental condition because they are not an appropriate person to be made an example of. I am satisfied that the offender has suffered symptoms of PTSD and Major Depressive Disorder as a result of his developmental background. He was also suffering from depression as a result of his marital difficulties and financial pressures caused by his desire to support family members overseas and by reason of falling victim of a crypto-currency scam. Whilst I accept that his judgement and capacity for decision-making were impaired at the time of the offending conduct, I am not satisfied that there was a causal connection between his mental condition and his sexual interest in the young woman under his care. There is no basis on which to find that the offender did not appreciate the wrongfulness of his actions. In my view, the psychologist’s report supports the view that much of his present mental anguish arises from the fact that he is facing the consequences of his offending conduct. In all of the circumstances, it is appropriate to reduce the weight to be afforded to general deterrence by reference to his mental condition, but not to any significant extent.

87. There is also a need for specific deterrence although it is reduced to some extent. The offender has accepted responsibility for his actions and expressed remorse. He has lost the opportunity to be employed in the care industry but has secured other gainful employment.

Aggravating factors

88. There are no relevant aggravating factors.

Mitigating factors

89. The offender does not have a significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is presently 35 years of age. He has some convictions for driving matters which are irrelevant.

90. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has a good work history, supports his family and is an active volunteer at his Church. The weight to be afforded to good character for this type of offending must be reduced to some extent because the offender relied on his good character to become a carer for vulnerable people, such as the victim.

91. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has sought counselling with his wife to address his issues and is willing to accept interventions. He has the support of his wife to address his mental health.

92. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the author of the SAR, to the psychologist and to the Court. I accept that he is genuinely contrite.

93. The offender has three young children. He is the sole financial provider to his immediate family and provides financial support to members of his extended family. Whilst a custodial sentence will have an impact on his family and cause hardship, I am not satisfied that this hardship is exceptional: R v Edwards (1996) 98 A Crim R 510 at 515.

94. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. I am satisfied that those restrictions will make the offender’s time in custody more onerous.

95. This is a difficult case. Whilst I accept that the offender has an impressive subjective case, it cannot be deployed to avoid imposing a sentence of an appropriate severity in all of the circumstances of the case. In my view, the imposition of a Community Corrections Order would be manifestly inadequate. Had it not been for s 67 Crimes (Sentencing Procedure) Act 1999, it would have been necessary to give serious consideration to an Intensive Corrections Order.

96. The offender has been in custody for one day relating to this offence. I will backdate the sentence imposed to take this into account.

Penalty

97. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

98. Friday Fredrick Jeremiah is convicted.

99. I have taken into account the Victim Impact Statement prepared by the victim.

100. I make a finding of special circumstances. The offender requires treatment for his mental health and would benefit from a slightly longer period on parole to permit Community Corrections to assist him to arrange that treatment.

101. I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 4 June 2024. The non-parole period will expire on 3 December 2024 and the head sentence will expire on 3 March 2025.

102. The offender is to be released on parole on 3 December 2024.

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Decision last updated: 05 June 2024