R v Kember
[2022] ACTSC 153
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kember |
Citation: | [2022] ACTSC 153 |
Hearing Date: | 24 June 2022 |
DecisionDate: | 27 June 2022 |
Before: | McCallum CJ |
Decision: | (1) On each of the six offences, the offender is convicted; (2) In respect of Count 1, sentence the offender to a term of imprisonment of 16 months commencing on 25 June 2022 and expiring on 24 October 2023; (3) In respect of Count 2, sentence the offender to a term of imprisonment of 10 months commencing on 25 June 2023 and expiring on 24 April 2024; (4) In respect of Count 3, sentence the offender to a term of imprisonment of 8 months commencing on 25 December 2023 and expiring on 24 August 2024; (5) In respect of Count 4, sentence the offender to a term of imprisonment of 6 months commencing on 25 June 2024 and expiring on 24 December 2024; (6) In respect of Count 5, sentence the offender to a term of imprisonment of 3 months commencing on 25 December 2024 and expiring on 24 March 2025; (7) In respect of Count 6, sentence the offender to a term of imprisonment for 6 months commencing on 25 December 2024 and expiring on 24 June 2025; (8) Direct that after serving 8 months of his sentence, the offender be released on a recognisance release order on 24 February 2023, upon giving security in the sum of $2000, after which the offender will be subject to a good behaviour order for a term of 2 years; (9) Pursuant to s 23ZD of the Crimes Act 1914 (Cth), and upon the application of the Director of Public Prosecutions, the following item is forfeited to the Commonwealth: a. 1 x White Apple iPhone X Mobile Phone; (10) Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act, and in order to give effect to the clear object of s 15YR of the Crimes Act 1914 (Cth), prohibit the publication of the following: a. The name of the victims and any child witness; b. The school which any of the victims attended at the time of the offending; c. The names of any staff of any school; d. The details of any social media account of any complainant or child witness. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences of soliciting child pornography material using a carriage service – soliciting child abuse material using a carriage service – using a carriage service to transmit indecent material to a person under 16 years of age – using a carriage service to procure a person under 16 years – possessing child abuse material obtained or accessed using a carriage service – objective seriousness – multiple offences – accumulation and concurrency – where the imposition of wholly cumulative sentences would result in a crushing sentence – proportionality – deterrence – specific deterrence – where early guilty plea entered in the face of a strong prosecution case – psychological report – weight to be given to psychological report where offender does not give evidence – where offender suffered childhood of some deprivation – hardship to third parties |
Legislation Cited: | Crimes Act 1914 (Cth) Pt 1B, s 16A Criminal Code 1995 (Cth) s 474.19(1), s 474.22(1), s 474.22A, s 474.26(1), s 474.27A(1) |
Cases Cited: | Adamson v The Queen [2015] VSCA 194; 252 A Crim R 368 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Hutchinson [2018] NSWCCA 152 |
Parties: | The Queen ( Crown) Rhys Kember ( Offender) |
Representation: | Counsel P McEniery ( Crown) S Robinson ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) JDR Law ( Offender) | |
File Number: | SCC 90 of 2021 |
McCallum CJ
Rhys Karl Kember has pleaded guilty to six federal offences broadly in the category of child pornography offences. I am required to sentence him in accordance with Part 1B of the Crimes Act 1914 (Cth).
Section 16A(2)(a) of the Act requires the Court first to consider the nature and circumstances of the offences. Before doing so, I wish to explain an aspect of that task which may seem unusual to those listening to these remarks on sentence.
There is a dispute as between the Crown and the offender as to the seriousness of two of the offences. Accordingly, the Court is required to engage in the unseemly task of comparing the objective seriousness of those offences with some notional hypothetical offence so as to specify in some way that is meaningful for future purposes in related sentencing exercises some description of the seriousness of these offences.
It goes without saying that, for the victims, these offences would have been experienced as being of the utmost seriousness and I accept that their perception would be so. Nothing I am about to say should be taken in any way to derogate from the inevitable impact on the victims of the offender’s conduct. I would also note that the process of describing offences at either “mid-range seriousness”, or “below mid-range seriousness”, or “low-end seriousness” is of doubtful utility, even for the important purpose of maintaining consistency in Commonwealth offences, because no future judge would have before him or her all of the material that is before me in informing my assessment. However, as explained, that is the task with which I am required to engage. The remarks that follow should be understood in that context.
Count 1
The first offence is an offence that, between 7 June 2016 and 30 November 2017, the offender solicited child pornography material using a carriage service, contrary to s 474.19(1) of the Criminal Code 1995 (Cth). That offence carries a maximum penalty of imprisonment for a term of 15 years.
Facts
In respect of that offence, and indeed for all offences, the agreed facts are set out in a document provided in the Crown bundle. I will not summarise the facts at great length. In short, the offender met the victim when she was aged about 13 years. At that time, he had a sexual relationship with her older sister, who was then aged about 21 or 22.
The offender and the victim regularly talked over Snapchat. At some stage in that social media relationship the offender began requesting nude images of the victim. Whilst she was initially reluctant to do so, eventually she began sending him images. He encouraged her to do so in a way that can only be regarded as manipulative, for example, comparing her images, or perhaps herself, with her sister or saying that if she cared for him, she would send the images.
There was a break in the period of their Snapchat relationship when the victim did not have a phone. In early 2019, when she was aged 15 years, she added the offender on Instagram and they commenced having regular conversations again until early 2020. Their conversations were frequently of a similar nature, where the victim would send the offender intimate pictures, sometimes at his request, but also sometimes unprompted.
Objective seriousness
The Crown submits that this offence falls at the mid-range of seriousness for offences of this kind. Counsel for the accused did not accept that characterisation, although he did accept that this was the most serious of the offences because the offending began when the victim was aged 13; because of the age disparity between her and the offender; because of the duration of the offending (which occurred over roughly a 17-month period) and, finally, because the victim created the material at the offender’s request.
However, the offender noted in support of the submission that this offence falls below the mid-range for this type of offending the absence of the following factors referred to in Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243, as summarised in R v Hutchinson [2018] NSWCCA 152 at [45]. First, that the nature and content of the material was mostly material referred to as Category 1 (a description to which I will return) with a single Category 2 image itself sitting at the border of Categories 1 and 2 but within Category 2. Secondly, the fact that the offender kept the images for himself and did not attempt to gain any material benefit from them or participate in the trade of child abuse material. Thirdly, that there was no dissemination of the material and no risk that others would gain access to it as the offender kept the material in a secure file on his mobile phone and nowhere else. Fourthly, the fact that the offender did not assume a false identity and did not rely on the anonymity of the internet to solicit the images. Fifthly, the fact that the soliciting did not involve any threats to disclose information, being the content of text exchanges between him and the victim or images previously obtained. And finally, because there was no progression or even attempted progression towards physical sexual activity.
The offender submitted and the facts before me confirm that he appears to have been content to receive and keep the nude images without ever attempting to progress any relationship to anything more harmful.
In my view, the matters relied upon by the offender indicate that this offence does sit below the putative mid-range of offences of this type. The range of such offending is enormous and it is generally accepted that these cases must be considered very much according to their individual facts. Based on my own experience in dealing with charges of this kind brought before the courts, I cannot accept that this most serious of the offender’s offences sits at the mid-range for offences of this type.
Count 2
Count 2 is an offence of soliciting child pornography between about 1 January 2018 and 31 August 2018, again contrary to section 474.19(1) of the Criminal Code and again carrying a maximum term of imprisonment for 15 years.
Facts
In this instance the offending was for a much shorter period. The offending began at the end of 2016 or beginning of 2017 when the victim was aged 14 or 15 years. She met the offender when they were on the same cheerleading team. He must be taken to have been aware of her age based on her progression between different cheerleading groups. Over 2018 and early 2020, the offender had regular conversations over Instagram and Snapchat with the victim and formed a friendship through those exchanges and through their ongoing association at cheerleading.
From time to time, the offender would give the victim lifts home from cheerleading. I note that there is no suggestion that there was any inappropriate sexual conduct on those occasions. The victim frequently spoke to the offender about difficulties she was experiencing with her mental health. The statement of agreed fact records that the offender expressed a dislike for the victim’s partners through this period and encouraged her to leave her boyfriends. Again, however, there is no suggestion that this was a pretext for any advancement to sexual activity with her.
Around the start of 2018, on a single occasion, there was an exchange in which the offender in effect encouraged the victim to send him an explicit photograph of herself. According to the agreed facts, the victim laughed off the request and did not comply. The offender’s response to that was that he was a bit tipsy and would not make her do anything she was not comfortable with.
On a later occasion, when she was aged 16 years, he again asked her to send him nude images. She was reluctant but eventually agreed to his screenshotting images she sent to him exposing her breasts.
There were other exchanges, the detail of which need not be recited here.
Objective seriousness
The offender submitted that that offence was significantly less serious than Count 1 and represented an offence in the low range given that the victim was at least 16 when the offending occurred and that the material she sent to the offender was all Category 1. Further, as with Count 1, there was an absence of the factors I have recited in relation to that count.
Those submissions may be accepted. However, there is an important additional piece of information before the Court in her case, which is the provision of a victim impact statement. None of the other victims has provided such a statement to the Court. While no inference is to be drawn from that fact in the cases were statements were not provided, the statement from this victim enables the court to make findings in her case as to the impact of the offence on her.
The victim in respect of Count 2 has described the difficulties she had with her mental health, which she discussed with the offender prior to the offending. The impact of his offending appears to have been that, whereas she trusted him as a person in whom she could confide, following the offence she not only lost that trust in the offender but lost trust in therapy and support of the kind she needs to deal with her significant mental health issues. The law has regard to consequences. As it is not an element of this offence that any actual harm was caused, it is appropriate in assessing the seriousness of the offence to have regard to the significant impact this offence in particular appears to have had on the victim and unsurprisingly so.
For that reason, I do not accept that the offence is significantly less serious than Count 1. However, having regard to the submissions made on behalf of the offender, I do accept that the characterisation sought to be put on the offence by the Crown of being mid-range should not be accepted. In my assessment, this offence must also be regarded as being below the mid-range of offences of this kind having regard, as I have said, to the broad range of pernicious conduct which can constitute such offences.
Count 4
Count 4 is another offence of soliciting child abuse material from a person using a carriage service between about 1 January 2020 and 31 January 2020, contrary to section 474.22(1) of the Criminal Code. The different wording of the offence reflects a legislative change following the commission of the offences in counts 1 and 2. The offence, like those offences, carries a maximum penalty of 15 years’ imprisonment.
Facts
The circumstances of count 4 are broadly similar to the circumstances of counts 1 and 2 in that they involved the offender encouraging a teenage girl to send explicit nude photographs of herself. The victim in this instance is, again, the younger sister of a person with whom the offender was in an intimate relationship.
Over the course of the relationship with the older sister, the offender became close with the victim and would take her shopping and spend time with her in the absence of the girlfriend. The facts record that he bought her gifts including clothing and would regularly talk to her over Snapchat and Instagram. The facts record that, on several occasions, the offender delivered KFC to the victim at school in exchange for “a daily photo”, or “daily snap” on Snapchat.
When the victim was about 15 years old, in early 2020, she asked the offender to purchase alcohol for her. He told her that he would only do so if she sent him photos. She refused. The offender then accessed her Instagram account and took photos of pictures she had posted of herself in swimmers, sending those photos to her and saying words to the effect: “You post photos like this, but you won't even send photos to someone who has been in your life for ages.” Ultimately, the victim blocked the offender on social media. Eight images of this victim were located on the offender’s mobile phone which were classified as child abuse material
Objective seriousness
The Crown accepted that this offence was at the lower end of the range and that is the classification for which the offender also contends. It was accepted that she was aged 15 years and so younger than the victim in count 2. However, the offender noted that the images consisted only of images of the victim in her swimmers which she had posted on her own social media account. It does not appear that she sent any material to the offender.
As with counts 1 and 2, there was also the absence of the factors to which I have already referred in relation to count 1. In my assessment, this offence does fall at the lower end, as both parties evidently agree.
Count 3
Count 3 is an offence of using a carriage service to procure a person under the age of 16 years, contrary to section 474.26(1) of the Criminal Code. That offence also carries a maximum penalty of imprisonment for 15 years.
Facts
The agreed facts in relation to this Count are that the offender and the victim exchanged messages over Instagram. She was aged 15 years at that time. The conversation was initiated by her when she asked the offender whether he could provide her with alcohol. He said that he would supply alcohol to her in exchange for photographs. In due course, the offender expressed dissatisfaction with the photographs sent and asked what type of alcohol the victim wanted, saying: “Well, you’ve got an hour to send me at least something decent then, you can send better ones.”
The conversation continued in unedifying terms, evidently culminating in an agreement that the victim would give the offender “head”, understood to mean oral sex, in exchange for the alcohol. The offender in fact purchased alcohol and delivered it to the victim at her school. However, there is no suggestion that the agreed sexual act ever proceeded. It is important to disregard that for present purposes, since it may have amounted to a separate offence if it had proceeded.
Objective seriousness
The offender relied on the principles relevant in the assessment of the objective seriousness of an offence of this kind listed in R v Asplund; Asplund v R [2010] NSWCCA 316 at [8]:
“The sentencing judge determined that the respondent’s objective criminality should be informed by:
‘Level of persistence in use of carriage service for grooming purposes.
Nature of indecent material communicated.
Extent to which the intent to future sexual activity with himself is exposed and developed.
The nature of the future sexual activity intended.
Age and power differential between victim and offender.
Nature of prior relationship between offender and victim.The offender’s level of awareness and indecency and deliberateness in communicating.’”
Having regard to those factors, the offender submits that this count is an example of offending at the lower end of the range of seriousness because the victim was over the age of 15, noting that the upper age limit for victims for this offence is 16 and not 18; that the attempt to procure occurred on one day only and consisted only of two messages which were not graphic; that there was no attempt to engage in sexual activity when the offender in fact met with the victim and delivered the alcohol; that there was no further attempt after that meeting to procure sex and no attempt to contact her between that date and the date on which the offender was arrested, being a period of five months; and that the offender’s intention to procure sex from the victim may be regarded as being short-lived and one which he had abandoned by the time he met the victim. The offender noted that the alcohol was delivered at school and submitted that it is highly unlikely he would have actually intended to engage in sexual activity on school premises at lunchtime.
The Crown submits that this offence should be characterised as being below the mid-range. In making that submission, the Crown notes the remarks of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146 at [45] that:
“These provisions and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children are designed to protect young people from the considerable harm that may be done to them by such communications even if physical sexual activity does not ensue.”
The Crown notes in the context of this offence the significant age differential between the victim and the accused, the victim being 15 while the offender was then 31; the fact that the offending occurred over a number of hours on the same day (a factor I would disregard since that is a relatively short period in the context of these kinds of offences – perhaps that was the point of the submission); the fact that the offender explicitly requested oral sex twice over the course of the conversation; the fact that the request was transactional in that it was to be payment by the victim for receiving alcohol from him, which she could not obtain for herself; and the fact that those communications occurred in circumstances where the victim and the offender expected in fact to meet that day.
As submitted on behalf of the offender, the fact that the meeting was to be at school rather suggests that he did not intend to require the victim to perform her side of the agreement. However, the fact that he was prepared to deliver alcohol to a 15-year-old at school during the school day is troubling in that it indicates a corruption of youth of a different kind.
Notwithstanding the matters identified by the Crown, I am inclined to accept the offender’s submission that this count falls at the lower end of the range of objective seriousness for the reasons identified in his submissions.
Count 5
Count 5 is an offence of using a carriage service to transmit indecent material to a person under the age of 16 years, contrary to section 474.27A(1) of the Criminal Code. The Crown accepts that this offence falls below the mid-range of offending. In this context, the Crown referred to the factors summarised by Refshauge J in R v Aniezue [2016] ACTSC 82 at [33], with reference to the decision in Asplund to which I have already referred:
“In my view, including some of those mentioned in that case, the relevant factors, at least, include:
· the nature of the indecent material communicated, including its explicitness;
· the offender’s level of awareness and indecency and deliberateness in communicating;
· the age differential between the offender and the victim and the knowledge of that age;
· the nature of the relationship between the offender and the victim;
· the period of time over which the communication took place and the number of messages transmitted; and
· whether the person with whom the offender communicated is a child or a police officer or other adult impersonating a child.”
Facts
In this instance the facts are that the offender, then aged 32, communicated with the victim via Snapchat during a period of about one month. He knew the victim because she was the younger sister of one of the other victims to whom I have already referred who was known to the offender through a cheerleading organisation. The offender in those communications asked the victim about her prior sexual experiences and told her that he and her sister had exchanged nude photographs. Those exchanges occurred in circumstances where, in one of their conversations, the victim told the offender that she had been wanting to do something reckless, such as to get drunk. The offender and the victim discussed her visiting his house but that was not able to occur at that time due to the constraints of the COVID-19 pandemic.
A few weeks later, in another conversation, the victim told the offender she had kissed a friend earlier that day. It was in those circumstances that the offender began to ask her about prior sexual activity. The victim told the offender she knew a bit more about sex than other people her age because she had older siblings. That in due course led to the offender’s request of the victim as to whether she sent “nudes”. The victim’s response was that she did not and was “not like that.”
Objective seriousness
The Crown submitted, and I accept, that the facts indicate the offender was persistent when the victim indicated that she did not wish to talk to him explicitly about her own sexual experiences. Nonetheless, in my view, the offence does fall at the lower end of the range of objective seriousness, for the reasons identified on behalf of the offender. In particular, the offending occurred on two occasions only, with the indecency relating more to the topic of discussion than the identity of the participants. The offender noted that the offending can be contrasted with that in other cases, such as Aniezue (the decision of Refshauge J to which I have already referred), which involved an explicit description by an offender of the sex acts he would perform on the victim. The present case may also be contrasted with cases involving a relationship of trust, as in the matter of R v Champness [2019] ACTSC 277 at [25] where it was found that the offence was aggravated by the fact that the offender was a pastor and the victim and her parents were members of his congregation.
Count 6
Finally, count 6 is a charge of possessing child abuse material obtained using a carriage service, contrary to section 474.22A of the Criminal Code, which carries a maximum penalty of imprisonment for 15 years. That offence may be regarded as something of a catch-all, being based in part on possession of the material the subject of the other counts.
Facts
The material was obtained when police executed a search warrant on 8 May 2020 at the offender’s home. They identified on his iPhone a number of images stored in an application which required passcode access. They seized other electronic devices but found no child abuse material on any of those devices.
The classification ascribed to the images found, as I have already indicated, is divided into categories. Most of the material the offender had is category 1, defined as follows:
Images of children which are likely to cause offence to a reasonable adult, but where there is no sexual activity taking place. There is no specific requirement for nudity or for a particular focus on, or attention to, the genitals. However, the image must be sexually suggestive or sexual in nature.
The Crown provided me, at the proceedings on sentence, with a sample of the kind of material seized in the present case. As indicated by that definition, in Category 1 there was no photograph explicitly showing any girl’s vagina. Most of the photos were nude photos of the kind one might expect to see in pornographic literature which is restricted to persons over 18.
There was one image in Category 2, which is defined as follows:
“Sexual acts between children only, with no part of the body being penetrated, and the solo masturbation by a child.”
As I understand the agreed facts, the photograph that fell within that category was one in which one of the girls was depicted with her hand down her underpants.
Objective seriousness
The Crown accepted that the material the subject of Count 6 and the objective seriousness of that offence fell at the lower end of the objective range of seriousness, and I agree. That is because of the nature of the images; the fact that they were in the lowest category; and the probability that the victims were between 15 and 18. The dates of offending suggest that one victim was 15 and one was between 16 and 18. It is unclear how old the other victim was because the metadata does not permit time- stamping; she may have been anywhere between 13 and 16.
The offender noted that none of the pictures depict cruelty; the offender did not intend to distribute them; he did not stand to obtain any material benefit from them; he directly contacted the victims who brought the images into existence but that is an element of the solicit offences and cannot be double counted; the fact that the offender stored the images in his phone in a secure folder; that he acted alone and did not collaborate with others and that there was no risk of children or vulnerable people accessing the material as they were kept in a password protected folder.
Sentencing considerations under s 16A(2) of the Crimes Act
The Crown identified a number of other factors that should be considered in accordance with the mandatory but inexhaustive list in s 16A(2) of the Crimes Act.
First, the Crown noted that one of the relevant factors is, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or of a similar character, that course of conduct. The Crown submitted that the offences here were individually culpable and distinct in time. I agree. I also think it is important to recognise the impact on each individual victim. The course of conduct engaged in by the offender is also relevant in that no single offence can be regarded as isolated.
However, as fairly noted by the Crown, the fact that there was a series of offences is also relevant to accumulation and concurrency. This is a case in which it would be inappropriate to impose wholly cumulative sentences because that would result in a crushing sentence.
Subsections 16A(2)(d) and (e) require the Court to consider the personal circumstances of any victim of the offence and any injury, loss or damage resulting from the offence. As already noted, only one of the victims provided a victim impact to the Court and it is not appropriate for the Court to speculate as to the harm inflicted on the others. That said, it is well recognised that the Court can take into account the intrinsic harm of offences of this kind. The Crown cited authority for that proposition, if it were needed, in the decision of Adamson v The Queen [2015] VSCA 194; 252 A Crim R 368, where the Court noted that there is no reason why the implicit statutory presumption of harm should not apply to cybersex offences, as well as in-person sexual offences. The Court said at [23]:
The subject matter, text and purpose of the legislation concerned with sexual offences against children through the use of a carriage service rests upon the same presumption as exists in relation to offences committed in person or in the presence of a child. The legislature in enacting a provision prohibiting the use of a carriage service to engage in sexual activity with a child sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour and to protect the child from immature decisions.
That need to protect a child from immature decisions is very much resonated in the victim impact statement that the Court does have in the present case. I do not propose to recount the content of that victim impact statement in this judgment, principally because I do not want to cause any further hurt or harm to the victim, who has been severely triggered by these events, including by the court process.
I do, however, wish to acknowledge that, while the offences have to be classified in the curious language of the law (for the reasons I have already explained), I accept without hesitation that these offences would have caused significant emotional harm to all of the victims involved. One of the more pernicious influences of the internet and the advent of social media is that vulnerable girls of their age can no longer be protected simply by the practice of careful parenting. Young girls (and indeed all young persons) are vulnerable to the communications of people like the offender in ways that can have deep and lasting effect. These are all matters I would take to be within the intrinsic harm the authorities accept can be taken into account by the Court.
Section 16A(2)(f) requires the Court to take into account the degree to which the person has shown contrition for the offence. The Crown in her written submissions connected this consideration with s 16A(2)(g), which requires the court, where the offender has pleaded guilty, to have regard to that fact. The Crown noted that the plea was entered only on the day on which the matter was listed for hearing and that it came in the face of a strong Crown case. On that basis, it was submitted that, although the plea obviated the need for the victims to give evidence, it can be inferred that the victims were still put through considerable distress in preparing to give evidence at the trial.
In the case of the victim who provided a victim impact statement, I can accept that to be the case. As to the others, I do not think it is appropriate to speculate in a way that is adverse to the accused. Further, whilst it may be accepted that the prospect of the trial would have been distressing in some way to the victims, the plea obviated the need for them to give evidence and that is certainly better than no plea at all.
As to the fact that the pleas were entered in the face of a strong prosecution case, the Crown submitted that, in circumstances where there is said to be limited evidence that the pleas demonstrated genuine remorse and acceptance of responsibility, the value of the plea should in some way be diminished. It is, in my view, a false syllogism to reason that, because a person pleads guilty in response to a strong prosecution case, the court cannot accept that the offender is remorseful. The question of remorse ought to be considered separately, by reference to the evidence before the Court. In this case, that includes a careful psychological report, to which I will return.
The offender submitted that the plea, even as late as it was, should attract a discount in accordance with conventional legal principle in the order of 10 to 15 per cent. Because of the number of offences and the complexity of the sentencing exercise in these circumstances, this jurisdiction not permitting the imposition of an aggregate sentence, the discount I have allowed in relation to each offence varies somewhere within that range. I will not identify the discounts with any greater specificity than will be revealed in the way in which I pronounce sentence.
The Crown placed considerable emphasis on the consideration in s 16A(2)(j) of the Act, which is the deterrent effect that any sentence or order under consideration may have on the person, that is, what is commonly known as specific deterrence or personal deterrence. Again, I will return to that consideration in the discussion of the psychological report.
Finally, the Crown relied on the factor in s 16A(2)(j)(a) which is, in short, general deterrence. I accept that general deterrence is a factor to be given some weight in the present case.
Offender’s subjective circumstances
I turn then to the offender’s subjective case. First, the offender’s tender bundle includes the psychological report to which I have referred, a report of Dr Douglas Boer dated 22 May 2022.
The material also included a medical certificate; a letter from a doctor; and occupational therapy report, all directed to the condition of the offender’s father, who has been diagnosed with Alzheimer’s Disease. That is relevant to a submission that I should take into account the hardship any lengthy sentence of imprisonment would inflict on the family of the offender. I will return to that consideration.
Finally, the material tendered on behalf of the offender includes a number of character references to which I have had careful regard. Some are written by women and speak of the respect with which the offender has always dealt with women. It goes without saying that the assessment of the authors of those reports must be qualified by the nature of the offences for which the offender now stands to be charged which, to say the least, are very disrespectful of the young women involved. Nonetheless I accept, as indicated in those character references, that the conduct to which the offender has pleaded guilty is out of character for him.
Psychological Report
I turn then to Dr Boer’s psychological report. Before addressing the report in detail, I want to deal with a submission made by the Crown as to the weight that should be given to the report, having regard to the fact that the offender did not give evidence. It was submitted, in the context of the question of contrition and also another aspect of the Crown’s submissions, that the Court is not bound to accept hearsay evidence of what the offender said to third parties.
In that context, the Crown relied on the decision of the New South Wales Court of Criminal Appeal in Qutami v R [2001] NSWCCA 353. I had occasion to consider that decision in Lloyd v R [2022] NSWCCA 18, when I was a judge of that Court. I remain of the view I expressed at [43]-[47] of that judgment:
“[43] The judge’s remark that part of the history was ‘self-report without any confirmatory evidence’ echoes a concern expressed in the decision in Qutami v R [2001] NSWCCA 353. In that case, Smart AJ made a ‘general observation’ at [58] that ‘very considerable caution should be exercised’ in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. His Honour said, ‘in many cases only very limited weight can be given to such statements’ and continued at [59]:
‘There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.’
[44] Spigelman CJ agreed with those observations at [79]. The third judge, Simpson J, was silent on the issue. Her Honour agreed with the orders proposed by Smart AJ but did not express her agreement with his Honour’s reasons.
[45]Smart AJ’s general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.
[46] The current practice of the District Court is to require any report prepared by a mental health expert to be served in advance of the sentence hearing: District Court Criminal Practice Note 20, cl 15. The clear purpose of that practice is to afford the Crown an opportunity to consider whether to accept or challenge the contents of such reports. In cases where a report is not challenged, the correct approach is as stated by Allsop P (with whom Price J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]):
‘It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition.’
[47] I would particularly endorse his Honour’s observation that care needs to be taken not to exclude admissible evidence ‘by a process going beyond an assessment of weight’. Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise ‘very considerable caution’ before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance.”
For the reasons I expressed there, I do not consider that I should set at nought the careful opinions explained by Dr Boer simply because the offender did not give evidence.
There are occasions when the Court can appropriately draw inferences as to the reliability of a history given to a psychologist and indeed there are occasions when the Court should do so. In my view, this is such a case. Dr Boer not only examined and questioned the offender over a period of a combined four hours in two separate consultations, but also administered tests which, as he explained, have a robust scientific basis for being relied upon. He administered the accepted tests for determining whether a person is malingering or exaggerating. He undertook a careful examination of the offender’s mental health condition and his reasons for the offending.
The context in which the Crown suggested that material might be examined with great caution before being accepted by the Court focussed particularly on the fact that the offender recounted a childhood of some deprivation which is relied upon, albeit to a limited extent, to invoke the principles stated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
I will give a brief outline of the background described. In short, the offender reported a history of neglect as a child due to his parents’ relationship problems. He told Dr Boer he was a witness to domestic violence between his parents and was neglected by his mother during his formative years between ages three and 11 due to her drug problems. I note that, at the outset of the hearing, Counsel for the offender stated that the offender’s sister, mother and partner were present in court.
Before I could properly reject the content of Dr Boer’s report, I would have to be satisfied that the offender was not only an accomplished liar but that he had the brazenness to present a false history of family dysfunction in the presence of those people. In my assessment, the information that he has provided to Dr Boer, and Dr Boer’s assessment of it, provides a compelling case for accepting that the offender is, as described by Dr Boer, a person who despite a dysfunctional family of origin and not finishing Year 11 has a long history of working including excelling in sport, doing stunt work overseas, managing sports facilities and competing as a professional BMX rider, among other sports.
I do not mean to suggest that the Crown submitted that I should disregard the history provided to the psychologist as nothing more than a fabrication. My point is that I fear that is the possible consequence of an unthinking application of the so-called Qutami principle.
Dr Boer’s report has been extremely helpful in the preparation of these reasons. The solicitor who retained him posed a number of specific questions, the answers to which I will summarise.
First, the doctor expressed the opinion that Mr Kember’s risk of recidivism is estimated as low. That is the evaluation reached by the LSIR risk assessment, which is the static assessment. However, Dr Boer explains that the risk of recidivism for a similar offence is low to moderate based on that assessment. He indicates that, assuming the offender does not reoffend, that assessment will reduce. Importantly, in response to the question “should there be a risk of recidivism, what are the underlying causes?”, Dr Boer accepts that there is a risk of recidivism in the future which, while low to moderate, will reduce because it is related to the underlying causes of the offending, particularly the social media in which the offender participated during his sporting career.
The offender told Dr Boer that, amongst those in the field of elite BMX riding, which the offender was in at the time of these offences, there was an overly sexualised milieu in which the sportsmen frequently engaged in sexual intercourse with multiple partners and had multiple women expressing an interest in them. That of course does not for a millisecond reduce the seriousness of the present offending, but it does explain the circumstances in which the offender found himself unable to apply the kind of moral construct one that might have been embedded more strongly had he enjoyed a more constructive upbringing. My assessment of that issue is supported by Dr Boer, who says “[t]he offender’s own abuse history likely contributed to his vulnerability for offending.”
Dr Boer also says that the offender is an intelligent person who has the potential to gain relevant insights that will help to decrease his risk for future offending. All of this is a long way of explaining that, although his overall risk of reoffending sexually is formally assessed according to the tests administered as low to moderate, it is clear enough that Dr Boer would consider it to be a low risk.
Dr Boer was also asked whether a further period of imprisonment would reduce the offender’s risk of recidivism. His response was “[n]o, it is not my opinion that a period of imprisonment would reduce Mr Kember’s risk of recidivism.” Dr Boer expresses the opinion that therapy for the offender’s offending issues in a supportive community setting would be a greater benefit in terms of reducing the future risk of recidivism than a period of incarceration and taking treatment whilst incarcerated.
Other aspects of the report do not need to be recited, save for the response to the question “[w]hether imprisonment would weigh more heavily upon the offender than would be expected of a person in normal health.” The answer to that question must be understood in the context that the psychologist was of the opinion that the offender does not satisfy the criteria for any diagnosis of mental illness, but rather that his current psychological state must be understood in the context of his background of deprivation. The deprivation to which I refer, in particular, is that which was focussed on by the psychologist, which is that the offender was, during the formative years (ages 3 to 11), effectively neglected by his mother because of her drug use habits and also the fact that he witnessed significant domestic violence during those formative years, his father being characterised as a violent alcoholic. In that context, the psychologist expressed the view that imprisonment would weigh more heavily on Mr Kember than a person in normal health. He said:
“While Mr Kember does not suffer from a mental health disorder, he presents as a person who has committed offences that have had a devastating effect on his life. When we discussed the effect of imprisonment on him, Mr Kember noted that imprisonment would possibly make it more likely that he would be attacked as a result of his charges, noting that a person has threatened him since he was charged.”
The explanation for that opinion included the psychologist’s reference to the offender’s fear that imprisonment could result in the loss of some of his current support. He said:
Support, along with occupation, accommodation, programs and prosocial plans are primary protective factors. At the current time these factors are positive and risk-reducing. It is my concern that these same factors could be diminished, potentially significantly if he were to be incarcerated, for example, potential loss of his current relationship; potential loss of his care giver responsibilities; potential reduced motivation to do sex offender treatment; abandonment of plans to pursue his current prosocial lifestyle.
The psychologist noted in the same context that the proceedings have already had a devastating effect on Mr Kember and his career as a professional BMX rider. The report records the fact that, until his arrest for the present matters, Mr Kember was on track to compete at the Tokyo Olympics in 2020. The Crown submitted that those impacts are the natural consequence of committing offences of the kind committed here. While it may be accepted that a person who commits offences and is sentenced to a term of imprisonment will always suffer in terms of their accommodation, their employment and often their prosocial supports, one can also readily accept that some persons have a steeper fall from grace than others. In my assessment, that is the case with the present offender. He, as it would appear, had the world at his feet and that is lost.
In my assessment, the material which the psychologist recites indicates that the offender did have a childhood of significant deprivation and that there is some causal connection with his offending in the limited sense identified by the psychologist. That is, that persons of that kind of background are vulnerable and more vulnerable than others to offending of the present kind. That comes from the part of the report which I have already quoted where it is explained that the offender’s abuse history has likely contributed to his vulnerability for offending. For the same reasons, I am satisfied that the offender does have good prospects of rehabilitation provided he remains connected with his current prosocial support.
Hardship to third parties
Turning to the question of hardship, the factor in s 16A(2)(p), the evidence establishes that the offender’s father is suffering from Alzheimer’s disease and that his condition is deteriorating. The evidence also establishes that the offender plays an important role for his father in that context. One of the letters before the Court from Mr Patrick Glancy identifies the fact that the offender is his father’s only connection to his past, is his immediate family and is his only family support. Prior to the events giving rise to the current sentencing process — that is, before being charged with the present offences — the offender and his partner had the care of the father.
It is clear enough that any lengthy period of imprisonment would carry a significant risk that the father would lose any cognitive connection with his past and may deteriorate more rapidly as a result. It is also a significant factor for a man in such a condition to lose his support to the imprisonment of an offender.
I do not wish to overplay the importance of these matters because I accept, as submitted by the Crown, that deterrence and denunciation must be the principal factors in the present sentencing exercise.
Proportionality
Section 16A(1) requires the Court, as the starting point, to fix a sentence that is of a severity appropriate in all the circumstances of the offence. That statutory requirement reflects the principle of the common law of proportionality. It is important to bear in mind that the sentence imposed according to that principle must be not less, but also not more, than is appropriate in all the circumstances.
The offender accepted, in accordance with comparable cases in offences of this kind, that there should be a term of imprisonment. I agree. However, the offender submitted that he should be released upon recognisance after a brief time in prison.
The overriding submission was that a recognisance release order would be appropriate after the offender has served a salutary brief period in prison for the following reasons: first, his lack of prior relevant convictions and the fact that he has never been to prison; his pleas of guilty; the assessment of five of the offences as being in the low range of seriousness with the sixth at below the mid-range; the hardship to his father with Alzheimer’s Disease; his upbringing of disadvantage; his low to moderate risk of recidivism; and his good prospects of rehabilitation. It was submitted that the interest of general deterrence would be met by the offender serving a brief period but then being released for a much longer period on a recognisance release order.
It is not clear to me the extent to which the Crown contests that proposition. Certainly, as I have indicated, the Crown submitted that the objective seriousness of the offences was higher than contended by the accused. Ultimately, however, the Crown’s submission was that the need for general and specific deterrence and for community protection required the Court to convict the offender and impose a full-time custodial sentence “of appropriate severity with a period to serve”. It seems both parties would contend for some period of full-time imprisonment, but I do not understand the Crown to suggest that it should be a lengthy period.
Specific deterrence
I said I would return the question of specific deterrence. The content of Dr Boer’s report persuades me that that is not required to be given significant weight in the present case. In my assessment, the impact of being charged has had a salutary effect on this offender. It is true that he is described as having minimised the severity of his offences in the way in which he has characterised his offending both to the author of the Pre-Sentence Report and, to a lesser extent, to Dr Boer.
However, I do not accept, as submitted by the Crown, that his response was simply to blame the “groupie culture” of the BMX sport. I do not accept that he has minimised his personal responsibility for the offending in such a callous way when regard is had to the combination of his responses expressed to various people and particularly to Dr Boer. As I have already said, the so-called “groupie culture” of the BMX sport does not exculpate him, but it does explain that his offending was opportunistic rather than predatory.
Having regard to his current pro-social supports, I consider him to be a person who is likely to embrace rehabilitation in a functional way. I also share Dr Boer’s reservations as to the extent to which that can be done in a custodial setting.
For those reasons, I propose to impose sentences of imprisonment and to release the offender on a recognisance release order after a period of imprisonment of eight months. I am mindful of the fact that some may regard the period of actual detention to be disproportionately low to the overall sentences of three years which I will impose. My reasons for releasing the offender after a period of shorter rather than longer full-time custody are my assessment of his prospects of rehabilitation, the relatively low seriousness of the offending and the likelihood that he will be better rehabilitate himself in the community than in prison, where he will be removed from his pro-social supports. I have also had regard, in fixing a relatively short period of full-time custody, to the hardship to the offender’s father.
The sentences I impose, therefore, are as follows. On each of these six offences, the offender is convicted.
On Count 1, the undiscounted term of imprisonment, that is, the starting point before the discount for the plea, is 18 months which then becomes a sentence of imprisonment for 16 months commencing on 25 June 2022 and expiring on 24 October 2023.
For Count 2, based on a starting point of 12 months, I sentence the offender to a term of imprisonment for 10 months commencing on 25 June 2023 and expiring on 24 April 2024.
For Count 3, commencing at nine months and discounted to eight months, I sentence the offender to a term of imprisonment for eight months commencing on 25 December 2023 and expiring on 24 August 2024.
For Count 4 and Count 6, the undiscounted term for each count is a term of seven months which, after the application of a discount, becomes six months. So, for Count 4, I sentence the offender to a term of imprisonment for six months commencing on 25 June 2024 and expiring on 24 December 2024.
For Count 5, the sentence will be a term of three months. Having regard to the length of that term, it is impracticable to designate the discount. For that count, the offender is sentenced to a term of imprisonment for three months commencing on 25 December 2024 and expiring on 24 March 2025.
For Count 6, the offender is sentenced to a term of imprisonment for six months commencing on 25 December 2024 and expiring on 24 June 2025.
The overall effect of those sentences is that there is a total term of three years. I am required to fix a single recognisance release order. I direct that you be released after serving eight months of the term on a recognisance release order. I indicate as part of my reasons that the term of eight months is 50 per cent of the longest sentence and, for the reasons I have explained, a smaller proportion of the aggregate than might sometimes be expected. The recognisance release order which you will be required to enter into will commence on 24 February 2023, after which you will be subject to the good behaviour order for a further two years.
I make the following orders:
(1)On each of these six offences, the offender is convicted;
(2)In respect of Count 1, sentence the offender to a term of imprisonment of 16 months commencing on 25 June 2022 and expiring on 24 October 2023;
(3)In respect of Count 2, sentence the offender to a term of imprisonment of 10 months commencing on 25 June 2023 and expiring on 24 April 2024;
(4)In respect of Count 3, sentence the offender to a term of imprisonment of 8 months commencing on 25 December 2023 and expiring on 24 August 2024;
(5)In respect of Count 4, sentence the offender to a term of imprisonment of 6 months commencing on 25 June 2024 and expiring on 24 December 2024;
(6)In respect of Count 5, sentence the offender to a term of imprisonment of 3 months commencing on 25 December 2024 and expiring on 24 March 2025;
(7)In respect of Count 6, sentence the offender to a term of imprisonment for 6 months 25 December 2024 and expiring on 24 June 2025;
(8)Direct that, after serving 8 months of his sentence, the offender be released on a recognisance release order on 24 February 2023, upon giving security in the sum of $2000, after which the offender will be subject to a good behaviour order for a term of 2 years;
(9)Pursuant to s 23ZD of the Crimes Act 1914 (Cth), and upon the application of the Director of Public Prosecutions, the following item is forfeited to the Commonwealth:
a.1 x White Apple iPhone X Mobile Phone;
(10)Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act, and in order to give effect to the clear object of s 15YR of the Crimes Act 1914 (Cth), prohibit the publication of the following:
a.The name of the victims and any child witness;
b.The school which any of the victims attended at the time of the offending;
c.The names of any staff of any school;
d.The details of any social media account of the complainant or any child witness.
| I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: |
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